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pay the penalty. Neither Lord Stowell nor his successor, Dr. Lushington, ever said anything to justify such a conclusion

On the contrary, "if a neutral ship or a protected ship," said Lord Stowell in the Felicity,* "is destroyed by a captor either wantonly or under an alleged necessity, in which she is not directly involved, the captor or his Government is answerable for the spoliation." Dr. Lushington, in the Leucadé, † laid down the general rule that it was the primary duty of the captor to bring in the prize for adjudication, and if this were impracticable, to release it. American Prize Courts acted upon the same principles. In the case of Maisonnaire v. Keating, the vessel was American, sailing under a Sidmouth license carrying food for the enemy's forces. She had thus acquired a hostile character. Captured by a French cruiser, her master, upon threat of destruction, agreed to ransom. "The capture," said Story J., “was strictly legal, but the hostile character would not justify the destruction of the vessel and cargo on the high seas."

The old rule that a neutral merchantman must never be destroyed was first attacked by Russia in her naval instructions of 1869; by the United States in 1898; by Japan in 1904; and by Germany during the Naval Conference of 1908, which produced the Declaration of London. Naval instructions, however, do not constitute international law. By Article 21 of the Regulations of 1895 and Article 40 of the Instructions of 1901, Russian commanders were empowered to destroy their prizes, whether enemy or neutral, under

such circumstances as bad condition or small value of the prize, risk of recapture, distance from Imperial ports

*2. Dods, 381 (1819). 1. Spinks, 217 (1855). 12. Gall, 325 (1815).

or

their blockade, danger to the Russian cruiser or to the success of her operations. To meet Russia on equal terms, Japan very reluctantly revised her prize regulations in a similar manner. But whilst autocratic Russia at the beginning of the new century was the first Power in the history of naval warfare to destroy neutral vessels on the high seas, Japanese commanders were careful to refrain from such practices, and continued to denounce the new departure.

Two batches of ships were destroyed; the first in 1904 and the second in 1905. In the first were the Tea, Hipsang, and Knight Commander; in the second, the Saint Kilda, Ikhona, Oldhamia, and Tetartos. The Tea was a German ship, and full compensation was given by the Russian Prize Court. The Hipsang was sunk in true German fashion, by shell-fire and torpedo, at sight, without warning. No satisfaction was ever obtained in the Russian Prize Court. On the ground of carrying contraband (railway plant) the Knight Commander was blown up. Its destruction aroused great indignation in Great Britain. It was described by Lord Lansdowne as "a very serious breach of international law"; and by Mr. Balfour, as "entirely contrary to the practice of nations in war time" -which it was. Upon a strong remonstrance in this sense to the Russian Government, Count Lamsdorf promised that it should not occur again. Upon the sinking of the second batch, eleven months later, the Count declared that his former assurances held good and that the fresh cases were due to misunderstanding of the commanders on the spot and to the disorganization of the Russian naval forces in the Far East.

The question of destruction of neutral merchantmen came up for discussion at The Hague Conference of 1907. A solution was found im

possible. The Russian proposal to destroy where release would endanger the safety of the captor or the success of his operations, was supported by Germany and opposed by Great Britain, Japan, and the United States.* The proposal was based on the ground that a State without oversea ports was placed in a position of unjustifiable inferiority. The Italian delegate thereupon suggested that this difficulty would be met by giving belligerents the right to send their prizes into neutral ports. Article 23 of the Convention XIII, whereby a neutral Power may allow prizes to enter its ports, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a Prize Court, was carried by nine votes

to

two-Great Britain and Japan. The question of destruction was reserved for the Naval Conference which met at London on December 4th, 1908. Opinion was again sharply divided, but a compromise was ultimately effected. The old rule was accepted in Article 48, whereby “a neutral vessel which has been captured may not be destroyed by the captor; she must be taken into such port as is proper for the determination there of all questions concerning the validity of the prize." By the succeeding Article 49 the rule is eaten up by the exception -"As an exception, a neutral vessel which has been captured and which would be liable to condemnation, may be destroyed if the observance of Article 48 would involve danger to the safety of the warship or to the success of the operations in which she is engaged at the time." Subsequent Articles provide for the safety of all persons on board and the ship's papers, and make it incumbent upon the captor "to establish that he only acted in the face of an exceptional

*The United States had withdrawn the Naval Code, 1904, in which destruction was permitted.

necessity.' As long ago as August, 1909, when criticising some provisions of the Declaration of London, I observed, "Article 49 is little less than the recognition of piracy." In view of subsequent events, I see no reason to modify this observation. "Exceptional necessity" means "military necessity." With this doctrine in force, the safeguards of the Declaration would seldom be effective in practice. The captor, as a rule, would find little difficulty in satisfying his own Prize Court of the existence of "exceptional necessity." Inability to furnish a prize crew would be one. That a neutral ship released might be a danger would be another. So elastic is this expression that the captor would, in fact, be the sole judge. Moreover, such a privilege confers upon a weak naval Power a strength which it would not otherwise possess. It would be relieved from all trouble in carrying in for adjudication, and by the destruction of the cargo and the dispersion of witnesses, the owners might find it impossible to establish their innocence. Even if the alleged safeguards were adequate, the deck of a warship can scarcely be described as a place of safety. Within a few hours the latter may be engaged by the enemy. To subject non-combatants of an enemy merchant ship to the risks of battle is bad enough, but to allow belligerents, in the name of military necessity, to subject neutral noncombatants, including women and children, to run risk of death and injury and to undergo the ordeal of a naval combat is a monstrous doctrine.

The admission of the doctrine of military necessity in the Declaration was a fatal mistake. It is under the plea of this doctrine that the German Government defends its submarine warfare. Such a defense would not, of course, be entertained by any *The Declaration is now withdrawn. tLaw Times, August 7th, 1909.

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international tribunal. In exceptional cases which are capable of judicial interpretation, the doctrine is admitted in international law. But as Professor Goudy has pointed out, it is in quite another sense that the doctrine of military necessity has been set up in the present war. "It has been used as palliating or even justifying positive breaches of international law. A belligerent State of its own authority and in disregard of custom, treaties, juristic opinion, and other international authority, has claimed the right to judge of the circumstances that constitute a military necessity."*

The announcement of unrestricted submarine warfare by Germany in February was based on the calculation that with 300 U-boats and 10,000 men, Great Britain would be knocked out, and the mainspring of the Entente offensive broken. Assuming that an effective antidote is not discovered, it will be within the resources of almost the smallest State in the future, by maintaining a fleet of a thousand or so submarines, to attack with impunity the strongest maritime Power, to hold up international commerce, and to threaten with starvation the whole world.

Four solutions of the problem are possible. First, the creation of a rule of immunity from capture at sea of all private property. In spite of all the advantages of this rule, which might be urged, in present circumstances it is doubtful whether the greater maritime Powers would even consent to entertain it. Secondly, the compromise contained in the Declaration of London, coupled possibly with the obligation thrown upon neutrals to admit belligerent prizes into their ports. I I have already stated the objections to the compromise. There are also

*The War and International Law. Scientia, November, 1916, 385.

serious objections to the corollary, such as embarrassment to the neutral. Thirdly, the maintenance of the old rule of non-destruction or neutral ships and of destruction of enemy ships only in exceptional circumstances, and after providing for the proper protection of crew and passengers and ship's papers. In this case also the right of carrying prizes into neutral ports might be conceded. And, lastly, recognition of unrestricted submarine warfare after the German model.

Since several States have gone to war rather than submit to the latter, and most of the others have officially protested against it, this last solution seems improbable. It is, however, possible. Whichever side wins, its militarists will be loathe to give up such a powerful weapon of offense.

It is also conceivable that small maritime States at present neutral may see in its recognition an infallible instrument of defense. The decision in this problem ultimately rests with public opinion. Some indications of its tendency have already been given. For instance, the "Grotius Society," on June 30th, 1915, declared that "Under no circumstances ought a neutral vessel to be destroyed unless engaged in un-neutral service." and that destruction of merchantmen, belligerent or neutral, by submarines should be prohibited. An American writer considers it "imperative to prohibit absolutely the use of submarines in commercial warfare."* So, too, at the annual meeting of the American Society of International Law in April, 1916, Professor Minor came to the conclusion that "there must be по submarine warfare on commerce." It is also significant to find a Dutch writer maintaining that "the civilized nations will never justify such a destruction of human lives and *Round Table, June, 1916, 528.

goods, which, from a military point of view, is also ineffective." When we remember that Norway has already lost one-third of her mercantile marine and some hundreds of her personnel, we may question whether small maritime powers will support recognition of the German method.

In the interests of humanity alone public opinion, if left to itself, would probably condemn this recognition. But there is a danger that the public may be persuaded by the specious. arguments of the militarists against its better judgment. In order to meet such arguments it must be informed. The Contemporary Review.

If, happily, the destruction of merchantmen is prohibited by international law, a sanction must be created. If a belligerent merchantman is destroyed, the captors should be regarded as war criminals, liable to be shot when captured; if a neutral is destroyed, the captors should be treated as pirates, liable to be hanged.

Piracy has been put down, and privateering has been abandoned, by the force of public opinion among civilized nations. Is it reasonable to expect that "unlimited U-boat war-fare" will meet with greater toleration?

Hugh H. L. Bellot.

THE CENTENARY OF JANE AUSTEN.

As a callow undergraduate I remember being roused out of an apathetic stupor while attending a lecture on the history of the English novel by these startling words on the subject of Jane Austen's readers: "Rabbits cannot be expected to take an interest or see anything humorous in the sight of other rabbits performing their ludicrous antics."

Was the reason that I had failed to appreciate the subtlety and charm of Jane Austen solely due to the fact that I was dull of mind and of as commonplace a character as some of the dramatis persona of her works, and therefore unable to see the comic side of her delineation? I returned home determined to find out exactly where her power lay, what claims she really had to be called the feminine counterpart to Shakespeare.

I found that the mistake I had made was not entirely due to my own ineptitude, but that I had read her too fast. I had hurried over page after page in order to reach the story, to get the hang of the plot, to find *De Gids December, 1915.

some exciting incident, for all the world as if I expected some lurid "film" drama. I had to revise my method of reading. I had to learn the hard lesson that Jane Austen was not "Aunt Jane" of the crinoline era moving stiffly in an artificial, circumscribed area, speaking correctly in an old-fashioned, effete, precise English, but a genial, kindly, yet caustic genius who wrote with her tongue in her cheek, and, like Chaucer, was not averse from pulling her readers' "legs" unless they exercised care. Instead of a "bookish blue-stocking" I found a woman with an almost uncanny depth of insight into human character, one who realized that although life was far more important than literature, yet the true novelist exercised the function of displaying the greatest powers of the mind, and that novels are works in which the most thorough knowledge of human nature, the happiest delineation of its varieties, the liveliest effusions of wit and humor, are conveyed to the world in the best-chosen language.

In other words, I found that new,

hitherto undreamed-of, vistas were being opened up to me, vistas which helped me to understand this complex, intricate tangle which we call the art of living. As a result of my re-reading I first felt a sense of shame at having allowed myself to be so blind to her greatness, and then a sense of mystery as to how a woman who lived so simple and secluded a life could ever have achieved so stupendous a task.

Here was a girl who only lived for forty-two years, the daughter of a country parson, who never went abroad, to London but rarely, whose greatest excitement was a visit to Bath or Lyme Regis, who may or may not have suffered disappointment in love, but certainly had no grand passion, who lived through the French Revolution, Waterloo, and Trafalgar and yet makes no mention of those stirring times, leaving behind her a sequence of novels which within their own limitations are unapproachably perfect. She lived for the most part in the depths of the country at a time when rural society was even more vacuous than it is today. Small-talk, knitting, filigree work, and backgammon occupied the leisure hours of her sex, while men shot and hunted in moderation, but were always ready to accompany the ladies on their shopping excursions or to a local dance.

This is the life that Jane Austen set out to describe, knowing no other. That she succeeded in imbuing this with eternal interest makes one wistfully regret that she had not Fanny Burney's chances of mixing with the great men and women of her time, and yet... we have her own word for it that she could not have undertaken to deal with any other type of men and women than those among whom her lot was cast.

I could no more write a romance than an epic poem. I could not sit down seriously to write a serious

romance under any other motive than to save my life; and if it were indispensable for me to keep it up and never relax into laughing at myself and other people, I am sure I should be hung before I had finished the first chapter.

When the Prince Regent's librarian suggested that she should delineate the habits of life of a clergyman, she replied:

The comic part of the character I might be equal to, but not the good, the enthusiastic, the literary. Such a man's conversation must at times be on subjects of science-philosophy, of which I know nothing; or at least be occasionally abundant in quotations and allusions which a woman, who, like me, knows only her mother tongue, and has read little in that, would be totally without the power of giving. A classical education, or at any rate a very extensive acquaintance with English literature, ancient and modern, appears to me quite indispensable for the person who would do any justice to your clergyman; and I think I may boast myself to be, with all possible vanity, the most unlearned and uninformed female who ever dared to be an authoress.

It is not surprising in the light of this to find that she has nothing in common with a great moral teacher like Dostoievsky; her religion never obtrudes itself into her writings; she had no formal gospel to propagate.

She was neither Pantheist, Monotheist, Agnostic, nor Transcendentalist; that she hated Evangelicalism while recognizing its good points we know. Heartlessness is the only crime that she finds it in her heart to condemn unsparingly.

We do not go to Jane Austen for descriptions of natural beauty; she has neither Hardy's nor Wordsworth's passion for scenery; she does not use hedgerow delights nor grim mountain

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