attain that objective. Except for one chance shot, the damage was exclusively on property unconnected with the conduct of the war. Of the 127 persons killed or injured none, save one or two soldiers who were in the street at the time, were combatants. As for the moral effect, for which presumably the enemy is seeking, that was all to his disadvantage." (London Times, October 18, 1915.) § 14. THE RESTRICTIVE NATURE OF THE LAWS OF WAR THE RESTRICTIVE NATURE OF THE "So far as the in this sense natural procedure [fighting out their quarrels] of the human species is mitigated in the behavior of the parties, that is due to the scope which they may allow to the better qualities of our mixed humanity, and to the influence of certain rules which the consent of nations has made a part of international law. These rules are always restrictive, never permissive in any other sense than that of the absence of prohibition, for law can give no positive sanction to any act of force of which it cannot secure the employment on the side of justice alone, even if the particular act be not one which the law would prohibit both to the just and to the unjust if it could. Whenever therefore in speaking of the laws of war it is said that a belligerent may do this or that, it is always only the absence of prohibition that must be understood." (John Westlake: International Law [2d ed., Cambridge, 1913], vol. II, p. 56.) THE NORTH SEA MINE FIELD (1914) THE Secretary of the Admiralty communicates the following: "The German policy of mine-laying,1 combined with their submarine activities, makes it necessary on military grounds for the 1 The following extracts relating to the laying of mines are from articles by the Naval Correspondent of the London Times: [Extract from London Times, August 6, 1914:] "The sinking of the Königin Luise, by which the British Navy scores first blood, is precisely one of the incidents Admiralty to adopt counter-measures. His Majesty's Government have therefore authorized a mine-laying policy in certain areas, and a system of mine fields has been established and is being developed upon a considerable scale. "In order to reduce risks to non-combatants, the Admiralty announce that it is dangerous henceforward for ships to cross the area between Latitude 51° 15′ N. and 51° 40′ N. and Longitude 1° 35′ E. and 3° E. "In this connection it must be remembered that the southern limit of the German mine field is Latitude 52° N. Although these which are fairly certain to precede decisive action. The Königin Luise was a Hamburg-Amerika liner of about two thousand tons and had been converted into a mine layer. Probably she carried four hundred or five hundred mines, each filled with explosive and so fitted that after a certain time had elapsed it would become 'live' or ready to explode if touched. Rows of such mines can be fastened round the bulwarks or, on a deck sloping towards the stern, suspended from an overhead tramway. Sometimes they are fastened together with chains or wire hawsers, and matters are so arranged that when put into the water they remain at a depth fixed by the layer. A ship, either an old cruiser, still of good speed, or a fast liner, is fitted in this way, and her business is to steam at high speed across the estuary of a river, or the entrance to a port, and as successive runs are made to strew the mines in parallel or converging rows until the layer has disposed of her cargo. The Königin Luise was perhaps on her way to the Thames to get rid of her cargo in this way when the Harwich patrol flotilla and the Amphion picked her up and stopped her game with a torpedo. That other attempts will be made is certain, and our destroyers may not always be so fortunate as to score. There is, however, another way of dealing with the mines, and the mine sweeper is a vessel which also performs its duty very efficiently and with extraordinary quickness." [Extract from London Times, August 14, 1914:] "As the official announcement also stated, however, that Germany had scattered mines indiscriminately in this area, this rather points to such a battle being fought later on instead of immediately. Very much depends, however, upon what is meant by the term 'indiscriminately.' It must be fairly certain that the mines can only have been laid in areas within which the Germans have been able to operate. Unless, therefore, very broad paths have been left through the fields, the mines will act as much as a deterrent to the egress of the German ships as to the movements of our own vessels against the enemy. It is well to remember that mines once laid in open waters are beyond the control of either side. That is to say, nothing can prevent them from exploding if the protrusions which contain the igniting apparatus are struck, by friend or foe alike. Admiral von Ingenohl, therefore, can have no more desire than Admiral Jellicoe to manœuvre his fleet in such a dangerous area. Still assuming, therefore, that the mines have been strewn indiscriminately, should an order be given for the German Admiral to give battle at any cost such an order, for example, as Napoleon gave to Villeneuve — either the mines must first be picked up again or the movements of the German vessels are limited to such channels as have been left open. Not until they were clear of the dangerous area could the Germans challenge an action. Moreover, to fight with the knowledge that behind them these mines were scattered indiscriminately would be for the Germans to take a risk which is almost inconceivable." limits are assigned to the danger area, it must not be supposed that navigation is safe in any part of the southern waters of the North Sea. "Instructions have been issued to His Majesty's ships to warn east-going vessels of the presence of this new mine field." (London Times, October 3, 1914.) SECRETARY BRYAN'S PROPOSAL RELATIVE TO FLOATING MINES ON THE HIGH SEAS (1915) 1 IN regard to floating mines, Secretary Bryan on February 20, 1915, proposed to the German and British Governments to agree: "1. That neither will sow any floating mines, whether upon the high seas or in territorial waters; that neither will plant on the high seas anchored mines except within cannon range of harbors for defensive purposes only; and that all mines shall bear the stamp of the Government planting them and be so constructed as to become harmless if separated from their moorings." The German note of February 28 in answer to this proposal contained the following paragraph relative to the use of floating mines: "1. With regard to the sowing of mines, the German Government would be willing to agree as suggested not to use floating mines and to have anchored mines constructed as indicated. Moreover, they agree to put the stamp of the Government on all mines to be planted. On the other hand, it does not appear to them to be feasible for the belligerents wholly to forego the use of anchored mines for offensive purposes.' A few days later (March 15th) Sir Edward Grey handed the American Ambassador a memorandum discussing Germany's method of conducting the war as compared with that of Great Britain, dated March 13th. It contained the following statement in regard to the employment of mines by Great Britain: 1 This proposal in regard to mines was associated with a similar proposal in regard to submarine attacks on merchant vessels and the use of neutral flags with the purpose of disguise or ruse de guerre. "3. At the very outset of the war a German mine layer was discovered laying a mine field on the high seas. Further mine fields have been laid from time to time without warning and so far as we know are still being laid on the high seas, and many neutral as well as British vessels have been sunk by them." After discussing the violations of the law of war alleged to have been committed by the German Government, Sir Edward Grey continues: "On the other hand, I am aware of but two criticisms that have been made on British action in all these respects: (1) It is said that the British naval authorities also have laid some anchored mines on the high seas. They have done so, but the mines were anchored and so constructed that they would be harmless if they went adrift and no mines whatever were laid by the British naval authorities till many weeks after the Germans had made a regular practice of laying mines on the high seas. (2) . . . (Extracts from the Correspondence published by the State Department; American Journal of International Law, Supplement, July, 1915, pp. 97-99.) § 15. SANCTIONS: MEANS TO ENFORCE RESPECT FOR THE LAWS OF WAR (a) Investigation by the Government responsible THE TREATMENT OF BRITISH PRISONERS (1780) General Washington to General Clinton July 26, 1780. I AM exceedingly obliged by the favorable sentiments you are pleased to entertain of my disposition towards prisoners; and I beg leave to assure you, Sir, that I am sensible of the treatment which those under your direction have generally experienced. There is nothing more contrary to my wishes, than that men in captivity should suffer the least unnecessary severity or want; and I shall take immediate occasion to transmit a copy of the report you enclose . . . to the commandant at Charlottesville, with orders to inquire into the facts, and to redress grievances wherever they may exist. (George Washington: Writings, collected and edited by W. C. Ford [II vols., New York, 1889-91], vol. vIII, pp. 360–61.) THE BARALONG INCIDENT (1915) [THE following condensed outline of the Baralong case is made up of extracts taken almost textually from the British and German notes:] On December 6, 1915, Ambassador Page, acting under telegraphic instructions received from the American Government, transmitted to Sir Edward Grey a "memorandum from the German Government (dated November 28, 1915) concerning the murder of the crew of a German submarine by the commander of the British auxiliary cruiser Baralong," which stated that: "According to the unanimous statements" of these witnesses [whose affidavits were annexed], the occurrence took place as follows: "In August, 1915, the British steamer Nicosian was on her way from New Orleans to Avonmouth. She carried about 350 mules for war purposes, thus being laden with contraband. The witnesses were shipped as muleteers and superintendents. On the 19th August, about 70 nautical miles south of Queenstown (Ireland), the steamer was stopped by a German submarine and fired on, after the whole crew, including the witnesses, had first left the ship in the life-boats. "When the witnesses were in the life-boats outside the line of fire from the submarine, a steamer which had been already noticed by the witnesses, Garrett, Hightower, Clark, and Curran, when still on board the Nicosian, approached the spot. This, as afterwards transpired, was the British auxiliary cruiser Baralong. As this steamer approached all the witnesses noticed clearly that she was flying the American flag at the stern and that she carried on her sides large shields with the American flag painted on them. As the steamer carried the distinguishing marks of a neutral ship and had shown signals, which according to the seafaring members of |