present, by reference to general principles and the tendency is to so determine their status. This is necessary because great injury might be done to one or both of the belligerents if the laws of different states might say what was proper service in the time of war, as was formerly thought to be possible unless a convention was adopted among the leading states. If the material of which the cable is to be made is liable to seizure and confiscation on the high sea in the time of war, then it is not too much to claim that the cable itself, when in full operation, is liable to the consequences of war under like circumstances." (Ibid, p. 37.)

The rule of the Institute tries to cover the treatment of cables beyond the territorial jurisdiction of the belligerent by specifying that only within the limits of effective blockade is cutting allowable. The fourth rule introduces an idea, which, if carried out, would make all cutting unnecessary, for it is only to prevent the transmission of hostile messages that cutting is necessary within the territorial jurisdiction of the enemy, within blockade lines, or at any other point. The destruction. of a harmless cable would be prohibited as wanton devastation. It will be evident that if the fourth rule. can be enforced the third will be unnecessary, because a cable of this class would not be used for hostile purposes. If the fourth rule is not enforced, the limitation of cutting to the places specified in the third rule becomes arbitrary.

The fourth of these rules in regard to cables adopted by the Institute states that "It is intended that the liberty of the neutral state to transmit dispatches shall not involve the right to use or to permit their use, manifestly for lending aid to one of the belligerents." This rule does not, however, provide any means for the prevention of the use which is forbidden.

If a submarine cable connecting one belligerent and a neutral state is used to aid that belligerent, the other belligerent doubtless has a right to prevent such use in any reasonable manner provided he does not thereby violate neutral territory or neutral rights. This fourth

rule provides that the neutral has no right to permit the cable to be used manifestly to aid one of the belligerents. If the neutral does not prevent such use, then the other belligerent impliedly must take action. The action most feasible and certain is often the cutting of the cable outside of neutral jurisdiction. Therefore, if military necessity justifies such action, it may be taken. The officer responsible for the interruption must realize that he assumes the responsibility and that this responsibility should be assumed only when based on military. necessity. As M. Renault well said in the discussion, "Il faut qu'a des moyens d'attaque nouveaux correspondent des moyens de défense nouveaux: le moyen d'at-. taque étant devenu plus rapide et plus dangereux, le moyen de défense peut devenir plus dur, puisque autrement il n'y aurait plus aucun moyen de défense du tout." (Annuaire, 1902, p. 314.)

Pending an international agreement, the following wording would meet the requirements of the United States Navy, while giving reasonable guarantee as to the observance of neutral rights:

ART. 5. Unless under satisfactory censorship or otherwise exempt, the following rules are established with regard to the treatment of submarine telegraphic cables in time of war, irrespective of their ownership:

(a) Submarine telegraphic cables between points in the territory of an enemy, or between the territory of the United States and that of an enemy, are subject to such treatment as the necessities of war may require.

(b) Submarine telegraphic cables between the territory of an enemy and neutral territory may be interrupted within the territorial jurisdiction of the enemy or at any point outside of neutral jurisdiction, if the necessities of war require.

(c) Submarine telegraphic cables between two neutral territories shall be held inviolable and free from interruption.

There is no doubt, however, that this whole matter of the treatment of submarine telegraphic cables in time of war should be referred to an international convention for adjustment. So far as the present conditions are concerned the rules as above stated accord with practice, and while opinion is divided, some of the best authorities agree with the above rules and particularly with the

provision that military necessity may compel interruption outside of neutral jurisdiction. [Perels, Das internationale öffentliche Seerecht der Gegenwart, Berlin, 1903; p. 186.] The rules should, from the above and from other reasons, read as stated until some international agreement is devised.

(b) Should a provision in regard to wireless telegraphy be inserted in the code?

At the present time, the future of wireless telegraphy is uncertain and the possibility of interruption not fully determined. There is no reason for binding the officers by any regulations in advance of more accurate knowledge of the subject itself and of its possibilities. Therefore the proposition to insert a provision in regard to wireless telegraphy should not be entertained unless by international agreement.

Article 6.

If military necessity should require it, neutral vessels found within the limits of belligerent authority may be seized and destroyed or otherwise utilized for military purposes, but in such cases the owners of neutral vessels must be fully recompensed. The amount of the indemnity should, if practicable, be agreed on in advance with the owner or master of the vessel. Due regard must be had to treaty stipulations upon these matters. Could a fast pleasure yacht be seized and used for a dispatch boat under the provisions of Article 6?

"Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of war and which are lawful according to the modern law and usages of war." (Instructions for the Government of Armies of the United States, Article 14; Naval War Code, Article 3.)

If military necessity exists, the fast pleasure yacht could be seized and used for a dispatch boat without question. A fast pleasure yacht is properly included under the clause "neutral vessels."

Article 7.

The use of false colors in war is forbidden, and when summoning a vessel to lie to, or before firing a gun in action, the national colors should be displayed by vessels of the United States.

(a) Does "war," as used in Article 7, mean the period of actual engagement in hostile'action or the period from the declaration to the termination of the war in the general sense?

As war throughout the code is used to indicate the period during which the peaceful relations between states are severed, there is no reason for giving to the word a different interpretation at this point. Therefore, the word does not refer to the engagement, but to the period of hostile relationship between the states, regardless of the issue or failure to issue a declaration.

"No one can claim, as a right, that a public declaration of war shall be promulgated, unless it be the nation by whose government it is made, and then it serves only as a notice to their own citizens and subjects." (Blatchford, Prize Cases; Betts, J., in "Hiawatha," 1.)

"The question of the point of time at which a state of peace gives way to a condition of war is a question of fact. War begins with the first act of open hostility." (Walker, "Science of International Law," p. 243.) Risley, in "The Law of War," page 82, summarizes the present position:

The following conclusions seem to be warranted:

1. War, as affecting belligerents inter se, commences from the date of an absolute declaration if its issue precede any act of hostility. In all other cases the war dates from the commencement of hostilities. Thus if a conditional declaration, such as an ultimatum addressed to an offending state, is followed by war, the war will date from the commencement of hostilities and not from the conditional declaration.

2. War, as affecting any neutral power, commences from the date at which the neutral power has, or may reasonably be supposed to have, knowledge of its existence. If a declaration or manifesto is issued, the neutral's knowledge of course dates from the official announcement; in all other cases the conduct of neutrals is entitled to the most favorable construction, and hostilities must have become so open and notorious that ignorance of them on the part of the

neutral is impossible before the liabilities attaching to their neutral character will be enforced by the belligerents.

In modern times, however, questions as to the commencement of war are not likely to arise, because the rapidity of communication, the activity of the press, and the publicity accorded to all matters of domestic and international policy combine to make the outbreak of a war immediately known all over the world. Every state is in fact cognizant of the precise date of its commencement, whether it be the date of an official notification or the date of the commencement of actual hostilities.

(b) Should the entire article be stricken out?

Admitting that "war" applies to the entire period of hostile relationships, and no other interpretation can be given, what does the Article 7 mean?

1. The use of a false flag is forbidden during the period of war.

2. Before or when firing a gun or engaging in action, the flag of the United States should be displayed.

3. There is no obligation to display the flag of the United States till the time of summoning a vessel to lie to or till the time of action. The absence of any flag, or the presence of a flag which is not false, is not mentioned.

Upon 2 and 3 all authorities who refer to the subject are agreed, i. e., that before firing a gun the true flag must be displayed and that till such time no flag need be raised.

There remains the question whether what many regard as a form of perfidy is allowable up to the time of firing a gun and is not allowable at the actual discharge of the gun, when it would be of little or no service other than to establish to a certainty the probable enemy character of the vessel firing the gun. It would not be presumed that a neutral would fire upon a belligerent or one vessel of a belligerent upon another vessel of the same belligerent, consequently it is held that the false flag would be pulled down and the true flag would be displayed at the time when the false flag would be of no further use.

In summoning a neutral vessel to lie to the use of true colors is necessary, however, as it establishes the