certain persons who, by special characteristics, are of unusual importance or usefulness to the enemy, while not combatants in the technical sense are, nevertheless, liable to capture and detention as prisoners of war. Such persons are certain officials of the enemy state, certain persons rendering services not directly hostile, but yet of marked service to the enemy as, e. g., contractors, machinists, etc. Also persons who by special training may easily become dangerous enemies. Under this class may come the personnel of private vessels. The rule generally accepted is that sailors on all merchantmen are liable to be treated as prisoners of war.

Article 11 qualifies this general permission by allowing detention as prisoners of war "when by training or enrollment they are immediately available for the naval service of the enemy."

Authorities are very generally agreed upon this point. (Perels, Seerecht der Gegenwart, p. 190 f.; Pillet, Les Lois Actuelles de la Guerre, p. 152; Hall, International Law, p. 421; Rivier, Principes du Droit des Géns II, p. 346.) Hall briefly states his conclusion: "Finally, sailors on board enemy's trading vessels become prisoners because of their fitness for immediate use on ships of war." The Naval War College Manual of International Law states: "Officers and seamen of merchant vessels of the enemy may, according to usage, be detained as prisoners of war upon the ground that they can be immediately employed on ships of war." (p. 86, 2d ed.)

The first clause of Article 11 should stand as printed in the code, except as noted in (b) below.

(b) Should the word "private" be substituted for the word "merchant" in the first line of Article 11?

The word "merchant," while possibly covering a large portion of the vessels liable to capture, is not sufficiently broad to cover certain vessels not engaged in trade, which are and must be liable to capture and whose personnel may be equally dangerous if not retained. The word "private" as covering the vessels other than "public" should be substituted.

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(c) How should the last two lines of Article 11 read? The word "merchant" may be omitted, making the last clause read, "Any person in the naval service of the United States who pillages or maltreats, in any manner, any person found on board a vessel captured as a prize, shall be severely punished,” if this last sentence is to be retained. It would be better, however, to make No. 17 of the "Articles for the Government of the Navy" and this last sentence of Article 11 of the Naval War Code to correspond by substituting one for the other or by revising both. No. 17 of the "Articles for the Government of the Navy" reads: "If any person in the Navy strips off the clothes of, or pillages, or in any manner maltreats, any person taken on board a prize, he shall suffer such punishment as a court-martial may adjudge." The sentence as it stands in the code does not prescribe how the punishment shall be determined.

Article 12.

The United States of America acknowledge and protect, in hostile countries occupied by their forces, religion and morality; the persons of the inhabitants, especially those of women; and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished.

(a) Should not the words, "private property" be inserted before the word "religion" in line 3 of Article 12?

The words "private property" should be inserted in Article 12 because Article XLVI of The Hague Convention provides that in case of hostile occupation "Family honor and rights, individual lives and private property as well as religious convictions and liberty must be respected."

This rule is immediately binding upon the naval force of the United States when constituting the hostile occupying force. Such force would then come without question under the rules of war on land.

(b) Should not the whole article be rewritten and amplified in view of The Hague Convention provisions in regard to occupation of hostile territory? If so, suggest the wording of the article and give reasons therefor.

It would be better in this case to substitute Article XLVI of The Hague Convention with respect to the laws and customs of war on land in place of Article 12 of the Naval War Code. Naval forces thus occupying hostile countries, by the simple fact of occupation become amenable to the rules of The Hague Convention. This Article XLVI with an introductory clause would read: In hostile countries occupied by forces of the United States of America, "Family honor and rights, individual lives and private property as well as religious convictions and liberty, must be respected." There are also other Hague Convention articles that should be inserted here. (See Section III.-On Military Authority over Hostile Territory, p. 155.)

SECTION III.-BELLIGERENT AND NEUTRAL VESSELS.

Article 13.

All public vesssels of the enemy are subject to capture, except those engaged in purely charitable or scientific pursuits, in voyages of discovery, or as hospital ships under the regulations hereinafter mentioned.

Cartel and other vessels of the enemy, furnished with a proper safe-conduct, are exempt from capture unless engaged in trade or belligerent operations.

(a) Would a vessel flying an enemy flag and carrying supplies to a neutral state where a famine exists be liable to capture and under what circumstances?

"A vessel flying an enemy flag and carrying supplies to a neutral state where a famine exists" might not be liable to capture if the vessel were public and the supplies were of a charitable nature destined for the relief of the famine.

Such a use of supplies could not directly or indirectly aid the enemy, but rather by the amount of the supplies lessen the enemy's resources. Of course, if the supplies. were destined for the neutral country simply because a higher price could be secured. on account of existence of the famine, the vessel and supplies as engaged in a commercial undertaking would be liable to capture.

The officer must judge, and in case of doubt should send the vessel into a port of his own state.

If the vessel be a private vessel of the enemy it is subject to capture under Article 14 of the Naval War Code. In time of war other arrangements must be made for the transportation of such supplies, e. g., by neutral vessels, by enemy vessel under pass previously obtained, etc.

(b) Should a vessel engaged in making deep-sea soundings be exempt from capture as engaged in scientific pursuits?

Vessels engaged in deep-sea soundings might not be liable to capture because engaged in scientific pursuits, but from the nature of the vessel it could be directly utilized for hostilities, e. g., the vessel could be used for grappling cables, or for cable laying, etc.

The officer must judge, but such a vessel doubtless. would be sent into port without exception, or if exception were made it would be only in the rarest instances.

(c) Are private vessels "engaged in purely charitable or scientific pursuits, in voyages of discovery" liable to capture? Why?

Private vessels "engaged in purely charitable or scientific pursuits, in voyages of discovery" are liable to capture. While such vessels may in no way contribute toward strengthening the enemy, but rather divert a certain amount from his military resources, yet the difficulty of responsible control is so great that these vessels should be exempt only by grace of the commander in the immediate region, not by general rule.

(d) How should vessels engaged in religious and missionary work be treated?

Vessels engaged in purely religious and missionary work would be exempt under this section as engaged in charitable pursuits provided they are public vessels. Such cases, however, would be exceedingly rare. Private vessels thus engaged should be left as in the prior case (c) to the discretion of the commander. In all such cases, the ranking officer in the region acts on his own responsibility and should accordingly guard against possible injury from such vessels. He has absolute right to forbid the vessels to engage in religious and

missionary service during the continuance of hostilities, or even to capture these enemy vessels.

(e) How should a boat belonging exclusively to the light-house service be treated?

Boats belonging exclusively to the light-house service should in general be liable to the penalties of unarmed vessels engaged in the enemy's service. No exemption should be made by rule, as the service is, or may be, made of great military importance.

An exception was formally made in time of war in the Prize Law of Japan in 1894, when exemption from capture was extended to "boats belonging to lighthouses. The nature of the light-house service in China at this time may have prompted this extension.'

Article 14.

All merchant vessels of the enemy, except coast fishing vessels innocently employed, are subject to capture, unless exempt by treaty stipulations.

In case of military or other necessity, merchant vessels of an enemy may be destroyed, or they may be retained for the service of the Government. Whenever captured vessels, arms, munitions of war, or other material are destroyed or taken for the use of the United States before coming into the custody of a prize court, they shall be surveyed, appraised, and inventoried by persons as competent and impartial as can be obtained; and the survey, appraisement, and inventory shall be sent to the prize court where proceedings are to be held.

(a) Should the word "private" be inserted in the place of the word "merchant" in both instances in Article 14?

The word "private" should be inserted in place of "merchant" in both instances in Article 14, for reasons already given under Article 11 (b).

(b) What should be the treatment of vessels engaged in deep-sea fisheries? Why?

Whale, seal, cod, or other fish not taken to market in natural form, but salted or otherwise changed, are lines of fisheries which render vessels so engaged liable to

1 Takahashi, Cases an International Law, Chino-Japanese, p. 179.