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SITUATION I.

A state of war existing between France and Great Britain, a descent is made by a French fleet on the English coast, and several undefended towns are bombarded.

The British Government having communicated on the subject with the neutral powers, the diplomatic representatives of the latter at Paris were instructed to address to the French Government identic notes, intimating that the action of the fleet was inconsistent with the rules of The Hague Conference.

The French Government, in its reply, stated that there existed in the several cases special circumstances justifying the course which was adopted:

1. In one case a demand was made upon the town for a ransom, and was refused.

2. In another case a requisition for supplies had been denied.

3. In yet another, the bombardment was an act of retaliation for the destruction of a French man-of-war by an English torpedo boat using false colors.

The French Government, however, while alleging these special justifications, reserved the question of the lawfulness of bombarding undefended coast towns for purposes other than those stated.

To what extent is the supposed French answer, both as to the special cases stated and as to the general question reserved, supported by modern opinion and practice?

SOLUTION.

By Article XXV of the "Regulations respecting the Laws and Customs of War on Land," adopted at The Hague July 29, 1899, "the attack or bombardment of towns, villages, habitations, or buildings which are not defended is prohibited."

Although this prohibition, since it is found in regulations relating only to war on land, could not be considered

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expressly applicable to the operations of naval forces, yet it might, if it were unaffected by any other circumstance, be considered as in spirit forbidding such a bombardment as that in question.

But it appears that it was expressly agreed at The Hague that, without regard to the merits, the question should be reserved. In the deliberations of the second subcommittee of the second committee the delegate from Italy proposed that Article XXV should be made applicable to bombardments by naval forces. Objections were made to this proposal (1) because of the incompatibility of an absolute prohibition with the possible necessities of a naval force in regard to obtaining supplies, and (2) because of the inopportuneness of the proposal. The subcommittee, on motion of its president, then expressed the opinion that the matter should be examined by a future conference. The British delegate, however, adverted to the fact that his Government had refused to take part in the Brussels conference (1874) except on condition that naval questions should remain outside the deliberations. He added that he did not desire to touch the merits of the question, but to declare that for the reason indicated it was impossible for him to associate himself with the subcommittee's expression of opinion; and at his request the fact that he abstained from voting on it was entered on the record. (Conférence Internationale de la Paix, part 3, pp. 27-28.) The conference, in its final act, July 29, 1899, voted certain wishes, among which was the following:

"The conference expresses the wish that the proposal to settle the question of the bombardment of ports, towns and villages by a naval force may be referred to a subsequent conference for consideration."

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This wish formed one of five which were voted unanimously, saving some abstentions," the English delegates having abstained from voting. (Blue Book, Misc. No. 1 (1899), 289.) It appears therefore that there would be no ground for the supposed representation to France, on the part of the neutral governments, in the case stated.

As to the special circumstances alleged in justification of the act complained of, the following observations may be made:

1. By Stockton's Naval War Code, which is binding upon American officers, "the bombardment of unfortified and undefended towns and places for the nonpayment of ransom is forbidden." This provision is believed to represent the best modern opinion and practice, and it invalidates in principle the first excuse.

2. As to the second case, the French answer is unsatisfactory. In general, a belligerent is forbidden to use wanton or disproportionate violence (Hall, 4th ed., 551); and the mere denial of supplies does not give the right to bombard. (Stockton, Naval War Code, 7.) In the present case there is no claim that the bombardment was in any way a military necessity or that it was carried out because requisitioned supplies were forcibly withheld; nor does it appear that due notice of bombardment was given or that any special circumstances, such as might excuse the necessity for notice, existed.

3. The conclusions to be formed as to the third justification depend on several considerations. It does not appear by the French answer whether the torpedo boat, when she fired her first torpedo or gun, had shown her true colors. With reference to the use of false colors, it is laid down "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 United States has taken the lead in forbidding the use of false colors (Stockton, Naval War Code, 8); and it is certain that, even in the case of a naval vessel of a government which had not laid a like inhibition upon its officers, the failure to display the true colors before the actual attack would constitute a flagrant violation of the laws of war, which should be brought to the notice of that government and punished by it.

A reasonable opportunity for explanation and reparation should be given, after which, if redress should be neglected or refused, a right of retaliation would arise. If possible, retaliation should be in kind, unless the action was, as in this case, a gross violation of the dictates of humanity and of civilized warfare. (Snow, 93.) At the same time it is enjoined that in making reprisals due regard

must always be had to the duties of humanity (Stockton, Naval War Code, 8); and it would be desirable to perform an act of retaliation which would not, as in the present case, fall upon people apparently sustaining no proximate relation to the perfidy complained of.

NOTES ON SITUATION I-COAST WARFARE.

Paul Jones. During the year 1776 John Paul Jones, in command of the sloop-of-war Providence, 14 guns and 107 men, on a cruise ranging from the Bermudas to Nova Scotia, made several incursions ashore for the purpose of seizing British stores, releasing American prisoners, and destroying British shipping. These incidents, while they convinced him of the essential importance of a navy to the American cause, left on his mind a clear impression "that the best use to be made of the small force that could be put afloat was to direct it, not so much upon the enemy's commerce at sea in transit as upon his coasts and commercial stations, where his shipping would be found congregated, with insufficient local protection. Commerce destroying, to use the modern phrase for an age-long practice, is a wide term, covering many different methods of application. In essence, it is a blow at the communications, at the resources of the country; in system it should be pursued not by random prowling, by individual ships for individual enemies as they pass to and fro, but by despatching adequate force to important centers, where the hostile shipping for any reason is known to accumulate. Let a single ship of war-commerce destroyer-meet twenty or thirty merchant ships at sea, he can take but few; the rest scatter and escape, and the prisoners must be cared for. Corner the same squadron in port, and neither difficulty, as a rule, exists." 2

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In his statement to the Marine Committee of the Continental Congress on a proposed scheme for the new navy, he advised against ships of the line, on the ground that the United States were not then prepared to contend with Great Britain for mastery of the sea on a grand scale, and recommended the immediate construction of five or six

1 Buell, Paul Jones, Founder of the American Navy, I, 53.
2 Captain Maran, Scribner's Magazine, July, 1898.

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