Maine says:

It must, however, be observed that no deceit is allowable where an express or implied engagement exists that the truth should be acted or spoken. To violate such an engagement is perfidy, and contrary alike to the customs of war and the dictates of honor. For example, it is a gross breach of faith and an outrage against the customs of war to hoist a hospital flag on buildings not appropriated to the wounded, or to use a place protected by a hospital flag for any other purpose than a hospital. (International Law, p. 149.)

Risley says:

A fraudulent use of signals of distress as a means of approach is not legitimate sailing under false colors, but an act of treachery. (Law of War, p. 121.)

It is difficult to understand upon what ground the flying of false colors can be justified when used solely for the purpose of getting within range of an opponent when it is forbidden to fire under false colors the shot which is thus made effective. Some statements are to the effect that no acts of hostility may be committed under a false flag. A recent decision of the Japanese court seems to hold properly that hostilities are not merely those acts involved in physical contact of the belligerent forces, but that hostilities date from the time when one force sets out with the intention of engaging the other-i. e., when the Japanese fleet sailed from Sasebo, and not at the time when it attacked the Russians at Port Arthur.

Questions also arise as to the use of false colors when passing a fortification, landing troops, laying mines, or in actions not involving the firing of a gun.

Some authorities maintain that such acts are as directly hostile as the firing of a gun and should not be masked under false colors, on the ground that perfidy in war is forbidden.

The right to fly the national flag being one most carefully guarded, and the flag being ordinarily held as the emblem most entitled to respect, third powers are now beginning to ask by what right a belligerent flies a flag to which it has no right.

False colors during an insurrection. The propriety of the use of the United States flag by a regular war vessel

of the established Government of Venezuela during the period of insurrection was under consideration in 1902. The case is summarized in the letter of Mr. Bowen to Mr. Hay: No. 127.]

LEGATION OF THE UNITED STATES,

Caracas, September 24, 1902.

SIR: I have the honor to inform you that on the 22d instant, at 7 p. m., I called on the minister for foreign affairs and told him that I had just received the confirmation of a rumor I had heard several days before, to the effect that the Venezuelan war ship Restaurador had steamed up the Orinoco and entered the port of Ciudad Bolivar flying the American flag at her foremast, it having been placed there with the object of deceiving the revolutionists and of approaching Ciudad Bolivar so closely as to permit her to bombard the town effectively.

I then said to him:

"Your captain dishonored the American flag; he should be ordered to raise it and salute it, and your Government should apologize."

He answered that he had heard nothing about the incident, and that he desired to have several days so as to investigate it. I replied:

"The facts that I have presented to you are indisputable, and I can give you only twenty hours, for I feel that at the end of that time I must cable the facts to my Government."

He thereupon agreed to act within the time specified. Before I left him I told him that the captain of the Restaurador had called the day before on Captain Diehl, the commander of the U. S. S. Marietta, stating that he had displayed it simply as he would have a flag of truce, and that he hauled it down before beginning the bombardment. I characterized the captain's explanation as neither credible nor satisfactory, and the minister's silence proved that he believed I meant what I said.

The following morning the first secretary of state called on me at 11 o'clock, and, after stating that his chief was ill in bed, informed me that he had been sent by his Government to express its regret that the American flag had been used improperly by the Restaurador, and that orders would be sent to her captain that afternoon to raise it and salute it with 21 guns. He then spoke of the earnest desire entertained by his Government to maintain friendly relations with the United States, and to remain on the best of terms with this legation. I assured him that the sentiments he had expressed are reciprocated most warmly by both the United States Government and by this legation, and I sent by him my best wishes to the minister for foreign affairs for his speedy recovery.

After he had gone I sent word to Captain Diehl, through Mr. Goldschmidt, our consul at La Guaira, that the Restaurador would salute our flag before sunset. Shortly after 5 o'clock Mr. Goldschmidt telephoned me that the full salute of 21 guns had just been fired by the Restaurador, and that our flag meanwhile had been displayed at her foremast.

My reason for not cabling to you for instructions, and for not entering into a written discussion with the Venezuelan Government, was because I feared if there was any delay the Restaurador might leave the port of La Guaira, and thus avoid doing honor to the flag she had insulted.

During my conversation with the Venezuelan authorities I took the precaution to have Mr. Russell, the secretary of this legation, present, and I am indebted to him for several remarks he made that helped to render the settlement of the matter satisfactory. I am, etc.,

(U. S. Foreign Relations, 1902, p. 1073.)

HERBERT W. BOWEN.

Pillet's zone of control.-Pillet proposed a plan for a circle of jurisdiction about a war vessel, entering which any war vessel which had not been recognized would be treated as an enemy. Pillet maintains that this would work to the advantage of both belligerent and neutral.

Il faudrait reconnaître au navire de guerre belligérant une zone de mer adjacente suffisant à sauvegarde et dans laquelle aucun autre navire de guerre non reconnu ne pourrait entrer sans être considéré et traité comme ennemi. Le belligérant échapperait alors à la dure alternative de couler un neutre innocent de toute intention hostile, ou de voir un adversaire masqué s'approcher à une distance telle qu'au moment où il révèlerait sa véritable qualité il serait impossible d'échapper à ses coups. La situation serait ainsi nettement déterminée et tout navire armé pénétrant, sans avoir justifié de sa nationalité neutre, dans cette zone de protection et de sécurité assumerait par là même les droits et les risques attachés à la qualité de belligérant. Les combattants y gagneraient de se combattre à visage découvert, les neutres vigilants y gagneraient aussi de ne plus être exposée à être pris par erreur pour des ennemis. (5 Revue générale de Droit international public, p. 448-449.)

Regulations as to false colors.-The British Manual of Naval Prize Law (1888) provides that

The commander may chase, but under no circumstances may fire, under false colors. (No. 197.)

The Manual also provides that for bringing a vessel to, the commander

should give warning by firing successively two blank guns, and then, if necessary, a shot across her bows; but before firing, the commander, if he has chased under false colors or without showing his colors, should be careful to hoist the British flag and pendant. (No. 200, p. 62.)

The Regulations of the Navy of the United States, 1905, provide that

Under no circumstances shall he (the commander) commence an action or fight a battle without the display of the national ensign. (No. 293.)

The Japanese Regulations Governing Captures at Sea of 1904-5 provide that

The captain of an imperial man-of-war may chase a vessel without hoisting the ensign of the imperial navy or under false colors. But before giving the vessel the order to stop he must display the ensign of the imperial navy. (Article LII.)

Summary. The failure to display colors before firing a gun is in no sense an act of perfidy. There is in this no claim to identity or national character. It is for the enemy to find out of what nationality the approaching vessel may be. Until this is established the enemy must guard against surprise.

It is evident that there is a considerable diversity of opinion and regulation in regard to the use of false colors. It is evident that some clearer definition of the use of the flag should be made. It is questionable whether the present regulation secures the results which upon its face it purports to secure, i. e., denies the propriety of combat. under a false flag, because the most essential part of a modern action may not be the firing of a gun, but in case of a vessel of inferior speed approaching one superior in speed, the important consideration for the inferior vessel is to come within a range from which it may be able to bring an effective shot to bear upon the superior vessel.

If the use of false colors be merely for the purpose of bringing a merchant vessel within the range of possible capture, then under present conditions it hardly seems a

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practice of greatest importance, as the capture of merchant vessels is only a means to an end and not the prime object of modern warfare.

It is now generally considered that a neutral has an exclusive right to the use of his own flag and the right to prescribe under what conditions it may be used. Of course this right to the exclusive use of his own flag may place upon the neutral certain obligations to guard against its misuse.

A neutral would seem to be acting reasonably in demanding that his national emblem shall not be used by a belligerent to cover any act which may work injury to the other belligerent, which, as regards the neutral, is a friendly state. While the practice has hitherto been tolerated it seems to be an infringement of the natural rights of the neutral state. It may also work hardship for a neutral vessel, for when the use of its colors is permitted to either belligerent it can not surely establish its identity by raising its national flag. Such standards of action have long been eliminated from land warfare and its continuance on the sea is hardly in accord with the standard of fair dealing which generally obtains in naval warfare.

The prohibition of the use of false colors by international agreement would give to neutral war vessels much greater security in their ordinary and proper movements, i. e., in case war should break out between States A and B and a war vessel of neutral C, not knowing that war existed, should for any reason approach a harbor of B flying its true colors, it would be free from the risk it would otherwise incur.

The use of the form of stratagem involved in flying false colors does not seem to bring any advantage commensurate with the disadvantages.

It is admitted that where a vessel summons another to lie to the summoning vessel should make known its identity by displaying its proper flag, the same is true regarding a vessel before firing a gun in action. It is claimed. by many, not without reason, that the rule should be extended to cover all classes of hostile action. To prohibit