procuring war material from neutral sources; to aid and assist military operations on land, and to protect and defend the national territory, property, and seaborne commerce.

(a) Would it be advisable to insert in Article 1 after line 3 as the clause beginning line 4 the words, "The general object of maritime war is to deprive the enemy of the use of the sea?"

The question in regard to the insertion of the words "The general object of maritime war is to deprive the enemy of the use of the sea" is raised in consequence of the position taken by certain French writers. Logically, there might be a statement of (1) the general object of all war, (2) the general object of the phase of war of which the code treats, (3) the special object of maritime war. Granting this arrangement, would the clause cover the objects of maritime war at the present time? Would it cover those measures which might be taken to inflict injury upon land defenses, etc.; or the measures to cooperate with the army in various ways?

In the first half of the nineteenth century the object. of maritime war was for the most part to deprive the enemy of the use of the sea, but with the increase in the use of steam, the lengthening range of guns, etc., there has come an enlargement of the field of maritime control and of the range of objects at which it aims.

The general object of maritime war is not different from the general object of war as a whole. The field of operations is somewhat restricted, however. "The capture or destruction of the military and naval forces of the enemy; of his fortifications, arsenals, dry docks, and dockyards; of his various military and naval establishments, and of his maritime commerce; to prevent his procuring war material from neutral sources; to aid and assist military operations on land, and to protect and defend the national territory, property, and sea-borne commerce," are stated as the objects of maritime war. Yet some of these acts are no more the objects of maritime war in themselves than the killing of individuals in uniform is the object of land warfare. These measures

are such as are allowed with view to attaining the submission of the enemy. The destruction of a fortification or of commerce is not in itself the object of war, but merely a means to attain the object, and by the first section of this article should be reduced to the minimum, i. e., there should be "the least expenditure of life and property."

It is important to distinguish the object from the justifiable means of attaining the object. There is a growing tendency to penalize the nation which mistakes the means for the end. Certain measures may be used as contributory to the general object of war. Of course, it will be difficult at times to determine what is contributory, but action that is distinctly not contributory even though enumerated among the special objects, may not be justifiable, and may be censured. Censure might arise in consequence of the destruction of such a structure as a privately owned shipyard, provided such destruction was not reasonably necessary to the ends of the military or naval undertaking, though it might, under conceivable circumstances, be of service to the enemy.

The first part of Article 1 might well read: "The general object of war is to procure the complete submission of the enemy at the earliest possible period with the least expenditure of life and property."

"In maritime operations the usual measures for attaining this object are: The capture or destruction of the military and naval forces of the enemy, etc."

(b) Would a dry dock within hostile territory, owned and managed by a private company and sufficiently large to receive a ship of war, be liable to the same treatment as would fortifications and arsenals?

The destruction of a dry dock owned and managed by a private company would, from the context, not be included in the same class as fortifications and arsenals, which are distinctly classed as belonging to the enemy, i. e., "of his fortifications, etc."

While a public dry dock would be liable to capture or destruction, a private dry dock does not fall into this

category until it becomes such as to afford aid to the enemy. It may be in itself a commercial undertaking of value in peace and not specially designed for war, as would be the case of an arsenal or fortification.

The capture of the privately owned dry dock would of course be entirely justifiable at any time as a measure of war. The destruction is not justifiable under the same provision as that in regard to arsenals and fortifications, which are public and by nature adapted for war; but being private, if destruction be permissible at all, it must be based on Article 3, which, following the majority of authorities, would allow such an act if justified by a reasonable military necessity. Article XXIII (g) of The Hague Convention, with respect to the laws and customs of war on land, prohibits the destruction or seizure of "enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war." Taylor, in his recent book, International Public Law, page 547, says: "Private property according to existing rules is treated even more favorably than that of the public. Except in extreme cases, to be mentioned hereafter, it is both respected and protected. At The Hague it was declared that family. honor and rights, individual lives and private property, as well as religious liberty and worship, must be respected. Private property can not be confiscated." "All private property, even that of the individual sovereign, is now respected, at least in theory, and booty therein is not permitted. As Zachariä expresses it, private property of the enemy can be touched only so far as the necessities of war require, for it is part of the war power of its country only so far as that country could itself exercise dominion over it."

Of course a commanding officer must himself judge as to whether a military necessity exists. To destroy the privately owned dry dock, except from military necessity, would constitute "wanton devastation" forbidden by Article 3 of the Naval War Code.

(c) How would a pleasure yacht be treated under the provisions of Article 1?

This question is raised because Article 25 specifies "merchant vessels, yachts, or neutral vessels," seeming to create a distinct class. The interpretation that has been given to the word "commerce" under the Constitution would probably be sufficiently wide to include pleasure yachts, but not if they are placed in a class by themselves. Hence, under Article 1, as interpreted with view to Article 25 and some of the earlier articles in Section IV as, e. g., Article 14, a pleasure yacht would not be included.

It would therefore have to be captured if at all under Article 3, which would be very difficult of application, because the proof of military necessity in the capture of a pleasure yacht would not be easy and often would be impossible. Hence, some provision should be made elsewhere in the code for such capture which may be as desirable as the capture of a merchant vessel. This will be introduced later.

(d) One further measure for attaining the objects of war which is becoming of more and more importance is the cutting off of the means of communication between the enemy and the outside world. It is therefore decided that the words "and communications" be added after the words "maritime commerce." To avoid possible confusion, it would further be advisable to insert instead of the words "to aid and assist" the words "to cooperate with the Army in" so that the clause would read "to cooperate with the Army in military operations on land."

Article 1 as revised would therefore read:

The general object of war is to procure the complete submission of the enemy at the earliest possible period, with the least expenditure of life and property.

In maritime operations the usual measures for attaining this object are: To capture or destroy the military and naval forces of the enemy; his fortifications, arsenals, dry docks, and dockyards; his various military and naval establishments, and his maritime commerce and communications;-to prevent his procuring war material from neutral sources;-to cooperate with the Army in military operations on land, and to protect and defend the national territory, property, and sea-borne commerce.

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The above form was agreed upon as covering essential amendments provided Article 1 be retained in the code. It was, however, the general opinion

1. That the article served no essential purpose because the general object of war is well known and needs no definition and the measures of maritime warfare vary with circumstances.

2. That it might tend to restrict an officer in the exercise of his functions rather than make these more clear to him.

A majority of the officers in attendance upon the conference were of the opinion that Article 1 should be stricken out entirely.

Article 2.

The area of maritime warfare comprises the high seas or other waters that are under no jurisdiction, and the territorial waters of belligerents. Neither hostilities nor any belligerent right, such as that of visitation and search, shall be exercised in the territorial waters of neutral States.

The territorial waters of a State extend seaward to the distance of a marine league from the low-water mark of its coast line. They also include, to a reasonable extent, which is in many cases determined by usage, adjacent parts of the sea, such as bays, gulfs, and estuaries inclosed within headlands; and where the territory by which they are inclosed belongs to two or more States, the marine limits of such States are usually defined by conventional lines.

How should such a body of water as Long Island Sound be regarded under the provisions of Article 2?

This situation does not from the point of view of the United States admit of discussion. It is the established rule that such waters as Long Island Sound are territorial waters of the United States. The jurisdiction over gulfs and bays having a mouth considerably over 6 miles wide is still open to difference of opinion. Hall briefly summarizes the current opinion as follows:

In any case the custom of regarding a line three miles from land as defining the boundary of marginal territorial waters is so far fixed that a state must be supposed to accept it in the absence of express notice that a larger extent is claimed.