at the service of the Fatherland. The Volunteer Navy thus formed was to carry the German flag, and was to be under naval command and naval discipline. The officers were to receive commissions from the state for the period of the war, and the crews were in like manner to be temporarily enrolled in the government service. The owners were to receive a certain sum as hire and to be compensated if the vessels were destroyed while under the control of the naval authorities. If prizes were taken, the sailors who took part in the capture were to be rewarded by money payments.1 These offers and appeals do not seem to have been very enthusiastically received by the seamen and traders of Germany, for throughout the war no ship of the proposed Volunteer Navy ever put to sea. But outside the Fatherland the plan attracted a good deal of attention. The French Government denounced it as a disguised form of privateering and a gross violation of the Declaration of Paris. The British Ministry, when called upon to say how they would regard it, published an opinion of the Law Officers of the Crown, who had come to the cautious conclusion that there was "a substantial difference" between it and the system against which the first article of the Declaration of 1856 was directed, and declared that they could not object to the Prussian Decree. Many publicists of repute have discussed the matter, but no general agreement has been reached. Calvo and Hall condemn the proposal, but Bluntschli, Twiss, aud Geffcken see no serious objection to it on the score of legality.*

It is impossible to suppose that the question raised in 1870 was settled by the collapse of the Prussian project. Maritime states will seek some unobjectionable way of util

1 Wharton, International Law of the United States, § 385.

2 British State Papers, Franco-German War, No. 1 (1871), p. 22. Calvo, Droit International, § 2086; Hall, International Law, § 181.

4 Bluntschli, article in Revue de Droit International, Vol. IX., p. 552; Twiss, Belligerent Right on the High Seas since the Declaration of Paris, pp. 12-14; Geffcken, Note to Heffter, Droit International de L'Europe, p. 279.

A

izing in war the services of their mercantile marine. movement will be carried on in naval affairs similar to that whereby militia and volunteer corps have gradually won recognition in land warfare. In the winter of 1877-1878, when there was imminent danger of hostilities between England and Russia, the latter power accepted the offer of a patriotic association to create a Volunteer Fleet, the vessels of which were to be purchased by private subscription, but made over to state control during the contemplated war, and commanded by officers of the Imperial Navy. Fortunately, the questions at issue were settled without further fighting by the Treaty of Berlin; but the Russian Volunteer Fleet survived the circumstances which gave it birth, and exists at the present time. It receives an annual subsidy from the government on certain conditions as to the number and efficiency of the cruisers, and some of its ships are regularly employed in carrying convicts and soldiers from the Black Sea ports to Siberia.1 The Sultan has been constrained by diplomatic pressure to regard them as merchant vessels, in order that they may freely pass the Dardanelles and the Bosphorus, which are closed in time of peace to the men-of-war of foreign states; 2 and this circumstance will probably prove embarrassing should Russia wish to claim for them the position of lawful combatants in some future struggle. Great Britain and America have adopted a somewhat different system. The former led the way in 1887 by entering into agreements with the Cunard Line, the White Star Line, and other great steamship companies, whereby, on consideration of an annual subsidy, they agreed to sell or let certain swift vessels to the government at a fixed price and on short notice, and to build new ships according to plans to be approved by the Admiralty, who were to be at liberty to acquire them on terms similar to those accepted in the case of the existing fleet. Half the seamen on board the vessels subject to these agreements were to be engaged 2 See § 109.

1 Statesman's Year Book for 1894, p. 891.

from the Royal Naval Reserve, and the Admiralty was to have the right of placing on board fittings and other arrangements which would facilitate the speedy equipment of the vessels as cruisers in the event of war.1 In 1892 the Government of the United States acquired powers of a like kind over the vessels of the American Line. There is nothing in these agreements to which the most scrupulous legalist can object. Should the vessels subject to them be used in war, they will be added to the national navy by hire or purchase, and will be manned by officers and men belonging to the public forces. The practical working of the Russian plan is not so clear; but if it means nothing more than the payment for armed and duly commissioned cruisers by voluntary subscriptions instead of taxes, no publicists will venture to denounce it as a violation of the Declaration of Paris. The legality of a Volunteer Navy must depend, like the legality of a Volunteer Army, upon the closeness of its connection with the state, and the securities it affords for a due observance of the laws of war.

§ 225.

Prohibition of

some instruments

of warfare and conditional legality

of others.

In early ages and among barbarous peoples all methods of destruction appear to have been used indifferently against an enemy, and any restraints that were practised seem to have arisen from the idea that a brave and generous warrior should not avail himself of new and unusual weapons or tactics. Thus the Zulus, after the battle of Ulundi in 1878, expressed their surprise that such courageous and honorable foemen as the British should have condescended to use breechloading rifles, which fired six times while they were firing once with their muzzle-loaders, and the Arab prisoners taken at El Teb in 1884 characterized as an unworthy trick the rear attack by which they had been defeated. Civilized belligerents,

1 British State Papers, Subvention of Merchant Steamers for State Purposes, 1887.

2 In 1898, during the war between the United States and Spain, the swiftest of these liners were taken over by the American government and did good servi e as scouts and transports.

however, have not been swayed by similar feelings. Men of science rival one another in the invention of new and more potent instruments of destruction, and states compete for exclusive rights in them. The government that deems it possesses machinery for taking life more efficacious than anything to be found in the arsenals of its neighbors keeps secret the processes of manufacture, and guards with the most zealous care the knowledge which it fondly believes will one day be transmuted into power. Restrictions upon the use of means of slaughter have indeed been introduced into the laws of warfare; but they are based on the idea of humanity, not on that of fairness. It is now an accepted principle that one side may put only so much stress upon the other as is sufficient to destroy its power of resistance. This, when applied to instruments and methods of destruction, forbids those which inflict more suffering than is necessary in order to kill or disable an enemy. It also limits and conditions the employment of means which are not altogether prohibited. Side by side with it there is a strong and healthy feeling against treachery, and the two together are responsible for several practical rules which will be discussed in the following sections. It will obviously be impossible to go through all the means and instruments of warfare, nor is it necessary to do so. The prohibitions are comparatively few, and what is not forbidden is allowed. All that it will be needful to do is to take the chief restrictions and deal with them one by one.

We must first note that

§ 226.

Assassination is forbidden.

The life of some one person is often of the last importance to a cause, and when that is the case its enemies are under great temptations to get rid of its champion by murder, if all other means fail. Such assassinations seem to have been sometimes regarded with approval

Assassination prohibited.

by the leading nations of the ancient world; witness the praise bestowed by Roman writers upon the legendary deed of Mutius Scævola. Grotius draws an elaborate distinction between "assassins who violate express or tacit faith" and "those who are not bound by any such tie of good faith";1 and complicates his reasoning by refinements based on his theory of a Law of Nature and its relation to the Law of Nations, and his division of wars into those which are regular and formal and those which are irregular and informal. As he clearly sees, the presence or absence of treachery is the all-important matter; but it is in the attendant circumstances of the deed rather than in the persons of those who do it that we must seek for its justification or condemnation. Modern International Law distinguishes between dashes made at a ruler or commander by an individual or a little band of individuals who come as open enemies, and similar attempts made by those who disguise their enemy character. A man who steals secretly into the opposing camp in the dark, and makes alone, or with others, a sudden attack in uniform upon the tent of king or general, is a brave and devoted soldier. A man who obtains admission to the same tent disguised as a pedler, and stabs its occupant when lured into a false security, is a vile assassin. The attempt to procure such a murder is as criminal as the murder itself. Article 148 of the Instructions issued in 1863 to the armies of the United States declares with perfect justice that "Civilized nations look with horror upon offers of rewards for the assassination of enemies, as relapses into barbarism." The Brussels Conference of 1874 numbered "murder by treachery of individuals belonging to the hostile nation or army among the means of injuring the enemy that were forbidden by Article 13 of its projected Code; and Article 8 of the Manual of the Institute of International Law forbids "treacherous attempts upon the life of an enemy.'

1 De Jure Belli ac Pacis, III., IV., XVIII.