identity of the vessel and gives evidence of its right in time of war to interfere with neutral commerce.

The use of false colors in land warfare has been absolutely prohibited, as shown in the following.

Instructions United States Army, 1863, Article 65:

The use of the enemy's national standard, flag, or other emblem of nationality, for the purpose of deceiving the enemy in battle, is an act of perfidy by which they lose all claim to the protection of the laws of war.

Brussels Rules, 1874, Articles 12, 13:

ART. 12. The laws of war do not allow to belligerents an unlimited power as to the choice of means of injuring the enemy.

ART. 13. According to this principle are strictly forbidden:

(f) Abuse of the flag of truce, the national flag, or the military insignia or uniform of the enemy, as well as the distinctive badges of the Geneva Convention.

Oxford Manual, 1880, section 8:

It is forbidden:

(d) To make improper use of the national flag, of signs of military ranks, or of the uniform of the enemy, of a flag of truce, or of the protective marks prescribed by the Convention of Geneva.

Hague Convention, Laws and Customs of War on Land, Article XXIII:

Besides the prohibitions provided by special conventions, it is especially prohibited:

(ƒ) To make improper use of a flag of truce, the national flag, or military ensigns and the enemy's uniform, as well as the distinctive badges of the Geneva Convention.

It has come to be the generally accepted opinion that "deceit involving perfidy should be forbidden." The flag is the emblem held most esteemed and sacred among states. It is the usual method of showing allegiance and is to be raised only on sufficient authority. The use of false colors on land or similar perfidy deprives the users of the "claim to protection of the laws of war."

It is evident that the use of false colors in warfare on the sea may bring about results very different from those which would follow warfare in which false colors were prohibited. Pillet has proposed the establishment of a

zone into which no vessel may come without establishing its identity. He says:

Les transformations de l'armement maritime ont rendu cette règle traditionnelle tout à fait insuffisante au point de vue de la sécurité des belligérants. Il est possible, en effet, qu'un navire de guerre ennemi, ne hisse son véritable pavillon qu'au moment précis où il lâche la bordée qui mettra son adversaire hors de combat; il est possible surtout, qu'un torpilleur s'approche à bonne portée, puis arbore ses couleurs et immédiatement lance une torpille contre laquelle le navire visé ne pourra pas toujours se protéger. La tolérance admise quant au pavillon peut ainsi avoir pour conséquence des surprises fatales, surprises que cette seule tolérance permet de pratiquer. Ce n'est évidemment pas pour obtenir de tels résultats que la liberté ancienne a été admise, et on ne prévoyait pas, au moment où cette coutume s'est formée, que la rapidité de certains navires et la puissance de leurs engins de destruction permettraient ainsi de ruiner un vaisseau de guerre avant même qu'il pût savoir qu'il était en présence d'un ennemi. Pour remédier à cet inconvénient qui est grave il conviendrait de s'attacher à une idée émise autrefois par quelques auteurs (De Cussy, Causes célèbres du droit des gens, 1 liv., III, sec. 60; Hautefeuille, Histoire des origines, p. 23; Bluntschli, Völkerrecht, sec. 318; Phillimore, Commentaries upon international law, t. 1, sec. 203) et de conférer aux navires de guerre des belligérants le droit de juridiction sur une certaine zône (de trois milles de rayon par exemple) dont chaque navire serait le centre, et dans laquelle aucun vaisseau de guerre ne pourrait entrer sans se faire reconnaître, à peine d'être traité comme ennemi. Il est à souhaiter que les Puissances maritimes s'occupent de cette difficulté, et qu'une convention internationale soit signée qui consacre la solution que nous proposons. (Les Lois Actuelles de la Guerre, 2d ed., p. 144.)

Hall makes the following statement of such rules as allow false colors:

A curious arbitrary rule affects one class of strategems by forbidding certain permitted means of deception from the moment at which they cease to deceive. It is perfectly legitimate to use the distinctive emblems of an enemy in order to escape from him or to draw his forces into action; but it is held that soldiers clothed in the uniforms of their enemy must put on a conspicuous mark by which they can be recognized before attacking, and that a vessel using the enemy's flag must hoist its own flag before firing with shot or shell. The rule, disobedience to which is considered to entail grave dishonor, has been based on the statement that “in actual battle, enemies are bound to combat loyally and are not free to insure victory by putting on a mask of friendship." In war upon land victory might be so insured, and the rule is consequently sensible; but at sea, and the prohibition is spoken of generally with reference to maritime war, the mask of friendship no longer misleads when

once fighting begins, and it is not easy to see why it is more disloyal to wear a disguise when it is obviously useless, than when it serves its purpose. (Hall, International Law, 4th ed., p. 558.)

The use of "false colors" is evidently subject to much difference of opinion. (See Perels, Seerecht ger Gegenwart, p. 182.) No scheme of such use has been proposed which seems satisfactory, and it is difficult to see how honorable warfare can be conducted upon such a basis as is implied in the use of false colors. Undoubtedly, the rule prohibiting the use of false colors in war should be made with definite provisions in regard to legitimate ruses in maritime warfare.

It is, however, the opinion of the officers in conference upon this subject that the United States, without a similar provision against the use of false colors by other States, would be put at great disadvantage in time of war through the existence of this prohibition in the United States Naval War Code. The officers were therefore almost unanimously (one dissenting) of the opinion that this rule should be stricken from the code pending some international agreement upon the use of "false colors."

(c) Should all of the article following the word “forbidden " be stricken out?

If the article is retained, the words following “forbidden" in Article 7 are necessary as specifying at what time the national colors should be displayed, while during the period preceding there is no prohibition of the use of emblems that are not in the category of false colors, nor objection to sailing without a flag.

(d) Could a torpedo boat approach near an enemy. ship under false colors and then raising true colors launch a torpedo against its opponent?

Under the present rules there would be no difference in the application of the rule to a torpedo or other vessel.

(e) One author says, "A ship may by employing false colors attempt to escape pursuit on the part of the enemy or perhaps even force a blockade; but it is absolutely forbidden by the regulations as well as by the usages of war to engage in hostilities under a false flag;

violation of this rule would be inexcusable even in the case of the most pressing necessity." How far is this position correct and in what respects is it incorrect?

This situation falls into three divisions, (1) the use of false colors to escape pursuit, (2) to force a blockade, and (3) to engage in hostilities.

(1) The use of false colors to evade pursuit has generally been held as allowable. It must be remembered, however, that this escape of an enemy vessel under false colors may add just so much to the fighting force of the enemy by so much delaying the realization of the end of war, viz, "the complete submission of the enemy at the earliest possible moment."

(2) The forcing of a blockade under false colors is generally regarded as an act of war and therefore forbidden. This seems to be the more reasonable opinion and the opinion which the fact sustains. The passing of a blockade by a public ship of a neutral is a courtesy allowed on the part of the blockading fleet. A neutral should not be put under suspicion because it is allowable for an enemy to use his flag. The consequences of this form of deceit so directly affect the neutral that such use of the flag should be forbidden.

(3) The remaining portion of the quotation is in accord with the best opinion and would be universally upheld.

It is the final opinion that Article 7 should be made the subject of international agreement or else should be repealed.

Article 8.

In the event of an enemy failing to observe the laws and usages of war, if the offender is beyond reach, resort may be had to reprisals, if such action should be considered a necessity; but due regard must always be had to the duties of humanity. Reprisals should not exceed in severity the offense committed, and must not be resorted to when the injury complained of has been repaired.

If the offender is within the power of the United States he can be punished, after due trial, by a properly constituted military or naval tribunal. Such offenders are liable to the punishments specified by the criminal law.

(a) In fourth line of Article 8, should the word “military" be inserted before the word "necessity?"

No, because in general cases where reprisals would be resorted to, such actions would not be because of military necessity, but rather for disciplinary purposes in order that the laws and usages of war might subsequently be observed, e. g., when uncivilized peoples do not observe these rules.

Action in the nature of reprisal against civilized enemies should be sanctioned by the general government and not undertaken by a subordinate officer unless a military necessity requires, as there are other means for the treatment of civilized enemies.

(b) A prominent authority says, "Reprisal is an act of vengeance pure and simple and should be wholly proscribed or at least reserved for wars undertaken against the uncivilized who have no notion of the law of nations and are accessible only to the feeling of fear." Is this a proper statement of the fact and should the whole of Article 8 be stricken out?

This is not a correct statement of fact as reprisals are now viewed, though reprisals may sometimes be acts of vengeance. This is the general continental point of view, however. The English and American point of view is that reprisals are undertaken to secure redress for injuries and usually are aimed against property or intercourse, rarely against persons.

Article 8 is however greatly restricted as seen in its provisions for reprisals:

1. For violation of "laws and usages of war," one specific cause.

2. By an "offender beyond reach.”

3. In case of "necessity" only.

4. Within duties of "humanity.”

5. Proportioned to offense.

6. Only in case of "injury not repaired." 7. Outside power of the United States.

Upon this debatable question of reprisals, an almost wholly obsolete form of action, probably it would have been better to refrain from utterance, but in view of the fact that the article has been issued, it may be well to leave it unchanged.