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Act provides for the discipline of the navy in war and peace, and the penalties imposed for misconduct in times of war are severe. Article 4 of the Naval Discipline Act of 1866 enacts as follows: "When any action or any service is commanded every person subject to this Act who shall presume to delay or discourage the said action or service upon any pretense whatsoever, or in the presence or vicinity of the enemy shall desert his post or sleep upon his watch shall suffer death, or such other punishment as is hereinafter mentioned." It is evident, therefore, that if a British submarine officer received an order from a lawful authority, e. g., the British Admiralty, to sink a German merchant ship without notice, and if he attempted "to delay or discourage" this service on the plea that the order violated the laws of war, he would be liable to the death penalty, and rightly so, for no army or navy could exist if every subordinate were permitted or required to constitute himself a judge of the legality or morality of the orders received from his superiors. It may happen that an order which, on the face of it, is a violation of the laws of war is justified. It may be an act of reprisal, or it may be that the superior authority has information not in the possession of the subordinate, as for instance, that the merchant vessel is sending wireless messages of military importance, but the subordinate cannot know and cannot judge. To make him responsible is to strike at the foundations of discipline in every army or navy in the world.

IN HIS JUDGMENT, therefore, says Sir Graham, whilst the indignation caused by the killing of non-combatants, including women and children is natural and justified, the differential treatment of submarine officers should be abolished. And since his paper was written the differential treatment of German submarine officers has been canceled and the British Government, on further examination, has adopted the conclusions here put forward.

THE QUESTION of Reprisals is then discussed. "Reprisals between belligerents are retaliation for illegitimate acts of warfare for the purpose of making the enemy comply in future with the recognized laws of war. . . Reprisals are an extreme measure, because in most cases they inflict suffering upon innocent individuals. In this, however, their coercive force exists, and they are indispensable as a last resource. An infraction of the laws of war having been definitely established every effort should first be made to detect and punish the actual offenders. Only if this is impossible should other measures be taken in case the injured belligerent thinks that the facts warrant them. As a rule the injured party would not at once resort to reprisals, but

would first lodge a complaint with the enemy in the hope of stopping any repetitions of the offense, or of securing the punishment of the guilty. This course should always be pursued unless the safety of the troops requires immediate drastic action and the persons who actually committed the offense cannot be secured." (British Manual of Military Law, pp. 452, 454, 456.) The regulations do not apparently distinguish between retaliatory measures and reprisals, nevertheless there is a distinction which in the interest of humanity should be emphasized. For instance, if the enemy used a prohibited weapon, then it would be permissible to retaliate by the adoption of the same or a similar weapon. But there is a clear moral distinction between such an act of retaliation and the destruction, let us say, of a defenseless town as a reprisal for a military offense.

IT IS to be noticed also that the regulations enjoin the despatch of a threat or warning before recourse is had to reprisals. This point is important. For whilst the French maxim les représailles ne valent rien is true, and though reprisals generally lead to counter reprisals and a competition in barbarism, the same cannot be said of the threat of reprisals. The following is an extract from Sir Herbert Maxwell's "Life of Wellington" (Vol. I., p. 351): "As October drew to a close, however, the reports from Pamplona showed that the garrison were in the last extremity. Deserters brought word that the whole place had been mined and that the Governor intended to destroy it. In this Wellington perceived an intention to do injury to the Spanish nation contrary to the laws of civilized war, and he sent strict orders to Don Carlos de Espana who was conducting the blockade that if this project were carried out the Governor, all the officers and noncommissioned officers, and every tenth man of the garrison should be put to death. It has been supposed that this was an empty menace, and that Wellington dared not carry it into execution. Be it remembered that the order to Don Carlos was explicit; that it was delivered on 20th October when the Governor was treating for surrender, and that Don Carlos was not one to be squeamish about carrying it out to the letter. Happily the threat proved enough. Pamplona was delivered unmarmed into the hands of Don Carlos on 31st October." Here there was a threat of reprisals, of reprisals against the military, not the civil population, and it succeeded. The Manual of Military Law gives the following examples of reprisals, and the threat of reprisals: "Early in 1813 the British Government having sent to England to be tried for treason 23 Irishmen naturalized in the United States who had been captured on vessels of the United States, Congress authorized the President to retaliate. Under this Act General Dearborn placed in close confinement 23 prisoners taken at Fort

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George. General Prevost, under the express direction of Lord Bathurst, ordered the close imprisonment of double the number of commissioned and non-commissioned United States officers. This was followed by a threat of unmitigated severity against American citizens and villages in case the system of retaliation was pursued. Mr. Madison retaliated by putting into confinement a similar number of British officers taken by the United States. General Prevost immediately retaliated by subjecting to the same discipline all his prisoners whatsoever. A better temper,

⚫ however, soon came over the British Government, by whom the system had been initiated. A party of United States officers who were prisoners of war in England were released on parole with instructions to state to the President that the 23 prisoners who had been charged with treason in England had not been tried but remained on the usual basis of prisoners of war. This led to the dismissal on parole of all officers on both sides. (Wharton: Digest of International Law.) During the Franco-Prussian War, 1870-1, the French captured 40 merchant ships and made their crews prisoners of war. Count Bismarck, who considered it contrary to International Law to retain these men as prisoners, demanded their liberation, and when the French refused it ordered by way of reprisals 40 French private individuals of local importance to be arrested and sent as prisoners of war to Bremen, where they were kept until the end of the war. (Count Bismarck, as it happened, was decidedly wrong, for France had, as the laws then stood, in no way committed an illegal act by retaining the German crews as prisoners of war.) The Germans in 1870-1 by way of reprisals for offenses committed by inhabitants in taking part in the attack on troops, convoys, messengers, etc., exacted fines or burnt down buildings. At Charmes the town casino was burnt down as punishment for inhabitants having fired on the escort of a convoy of prisoners of war (Von Widdern, IV., 2, p. 33). The village of Fontenay was burnt down and a fine of 10,000,000 francs levied on the Province of Lorraine on account of the railway bridge near the village having been destroyed with the alleged connivance of inhabitants (Idem, IV., 2, pp. 290-303). In his proclamations of 31st May, 16th June, and 19th June, 1900, Field Marshal Lord Roberts threatened reprisals for wanton damage to property, and damage to railway and telegraph lines by the burning of the houses and farms in the vicinity of the places where damage was done."

SO FAR THE Manual of Military Law. To these examples may be added the Proclamation issued by General Von Kummer at Metz on October 30, 1870, which ran as follows: "If I encounter disobedience or resistance I shall act with all severity and according to the Laws of War. Whoever shall place in danger the

German troops, or shall cause prejudice by perfidy, will be brought before a Council of War. Whoever shall act as a spy to the French troops or shall lodge or give them assistance, whoever shall show the road to the French troops voluntarily, whoever shall kill or wound the German troops or the persons belonging to their suite, whoever shall destroy the canals, railways or telegraph wires, whoever shall burn munitions and provisions of war, and lastly, whoever shall take up arms against the German troops, will be punshed by death. It is also declared that (1) all houses in which or from out of which, any one commits acts of hostilities towards the German troops will be used as barracks; (2) not more than ten persons shall be allowed to assemble in the streets or public houses; (3) the inhabitants must deliver up all arms by 4 o'clock on Monday, October 31, at the Palais Rue de la Princesse; (4) all windows are to be lighted up during the night in case of alarm." The foregoing proclamation may be said to deal with war treason, but as it has a certain affinity with Lord Roberts' proclamations of 1900, which are classed by the War Office as reprisals, it is quoted as evidence that the theory of reprisals and the theory of war crimes overlap. In any case, however, it is clear that the threat of reprisals is more likely to be successful than the reprisals themselves, that in most cases reprisals where carried out are liable to be denounced as methods of barbarism, and are, therefore, likely to divert sympathy to the sufferers. For this reason, if for no other, great care and forethought should be given to all the aspects of the case, before a threat of reprisals is formulated. For if the threat is delivered it becomes almost impossible to avoid its execution, with all the discreditable consequences.

THE WHOLE question of reprisals is considered by the writer as most difficult. There can be no more glaring example of barbarism than the sack of Magdeburg by Tilly's troops in the Thirty Years' War; but Gustavus Adolphus persistently refused to sanction reprisals, and history holds that he was right. Possibly the rules proposed by Professor Holland might form a useful basis for future guidance. They are as follows:

"Reprisals must be exercised only subject to the following restrictions: (1) The offense in question must have been carefully inquired into. (2) Redress for the wrong or punishment of the real offenders must be unattainable. (3) The reprisals must be authorized, unless under very special circumstances, by the Commander-in-chief. (4) They must not be disproportionate to the offense, and must in no case be of a barbarous character.' rules in effect summarize the proposals put forward by the Russian Government at the Brussels Conference of 1874, Proposals which, unfortunately, were not adopted. As, however, the aim of re

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prisals is not vengeance, but prevention, Sir Graham Bower adds to the foregoing the following rule: "(5) A threat or warning must precede all reprisals, and the reprisals should only be carried out if the threat or warning is disregarded." As the aim of all war is a lasting peace, so a reluctance to engage in reprisals, except under compulsion, is likely to promote that aim and to preserve the honor of the nation in the eyes of impartial or neutral or humane persons.

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