Heresies of Sea Power/Part 2/Chapter 5
V
INTERNATIONAL LAW
International law has been defined—nautically at any rate—as 'a series of rules drawn up by a number of learned pedants, and agreed to by a number of other learned pedants, for the conduct of operations of which the said pedants have no practical conception.'
This definition is, of course, a more or less humourous generalisation; though for practical purposes not always so very inexact. For whereas with individuals Common Law is enforced by the power behind it, where nations are concerned no such power exists.[1] A belligerent will break as many laws as he pleases without fear of interference from any nation, so long as his law-breaking does not cause inconvenience. Should it do so he is then liable to be met by protest or force according to the circumstances of the nation concerned. He is nearly always able to count the exact risk, and to reason out where he must be careful and where he can break the law with impunity.
For instance, when the Japanese seized the Russian destroyer Retchitelni at Chefoo in the Russo-Japanese war, there was a clear breach of International Law so far as the sanctity of a neutral port is concerned. China, however, if she had the will, was totally unable to enforce the law, and no other nation was sufficiently interested to concern itself in the matter. On the other hand, Russian vessels which took shelter at Kiao Chau and Saigon were not interfered with by Japan, and law was operative. But it would not have affected results had there been no law on the subject at all, for the simple reason that it was not to the interests of either Germany or France to see Russia suffer too severely at the hands of Japan or to have conflicts in their harbours, while it was not to Japan's interests to attempt the capture of the Tsarevitch at Kiao Chau as she seized the Retchitelni at Chefoo. Yet we know very well that had the Tsarevitch been at Chefoo no respect for International Law—other than the fear of international complications—would have prevented the Japanese from capturing the battleship. We know further that, however technically illegal, such an action would have been perfectly sound and rational.
Indeed, the right of sanctuary in a neutral harbour is an altogether illogical law. It is unfair to the victor that the vanquished should be able to evade the consequences of defeat, and easily suggests intolerable situations in the case of a neutral half inclined to enter the war. Had Germany, for instance, joined forces with Russia at any time after Round Island there would have been an important battleship added to Japan's enemies—a battleship which would have been sunk or captured to a certainty but for the existence of a law on the question of internment and Japan's need for observing the law.
Legal moralists have enlarged upon Japan's criminality in seizing the Retchitelni at Chefoo, but in point of common-sense it was quite the correct course. In the matter of a destroyer it was of minor importance, but had the Tsarevitch been the ship in question, the uncertainty as to China's attitude in the war would probably have rendered her capture imperative as a mere measure of self-protection.
Had the incident occurred it is clear that no nation would have taken action against Japan on account of regard for the laws of neutrality as Law: any action, whatever its nominal cause, would have been dictated solely by self-interest or a regard for 'precedent.' Nations able to conceive a similar state of affairs in connection with their own ships at some future date might, on the score of precedent, have protested; but even so the measure of the protest would have been entirely determined by the strength of Japan in relation to themselves. The law in this particular matter, therefore, is in substance, a theory which belligerents agree to observe when observance would be necessary without any law on the matter at all.
The neutral harbour and its sanctity was the bane of Japan throughout the war. The outcry about Russia's misuse of French harbours in the voyage of the Baltic Fleet was (so far as the legal aspect of the matter is concerned) probably based to some extent on misconceptions bound to occur through the vagueness of French rules upon the subject of belligerents visiting French harbours. Japan as the interested party protested to the full extent of which she was capable, but no other nation interested itself on the legal points involved in France's benevolence to her ally.
The chief trouble that neutral harbours caused to Japan was, however, in connection with the fugitives from Round Island. The Tsarevitch and the other runaways were ethically Japanese prizes. Being separated from their fleet they would, in a wider ocean, have fallen into Japanese hands or have been sunk by Japanese ships; but, owing to the existence of neutral harbours near at hand, they were able to escape the full consequences of defeat by internment in places where it would not have paid Japan to follow them.
Then there is the Chemulpo affair. Here the Japanese took up positions so that the Russians were liable to immediate annihilation—torpedo-boats being placed ready to discharge.
The Variag's captain then appealed to the neutral warships present, and on the grounds that neutral (British) property might be damaged did an action take place in the harbour, the Japanese agreed to withdraw, if the Russians would agree not to interfere with the Japanese troops being landed.
Next day, February 9, the Russians were informed by the Japanese that they would be attacked where they lay unless they came out to destruction before 4 p.m. The captains of the neutral warships signed (so it is said) a protest against this, but this protest was apparently not received by the Japanese admiral until after the Russians had left the anchorage and were just about to engage in the battle which—it is important to note—still took place in Korean territorial waters.
None of the neutral ships protested against this action, which from the legal standpoint was quite as improper as an attack at the anchorage would have been. They were concerned simply with the property of their fellow-countrymen which might get injured in a fight at the anchorage, and there are no indications of the slightest real regard for the law of the matter as Law on the part of any one concerned. "Were International Law a living force the Russians would have lain at their anchorage free from molestation. The only actual law was expediency. It was expedient for the Japanese to destroy the Russians and they consequently did so. It was expedient for the Russians not to involve neutral property in their own destruction, so they steamed clear of this neutral property. It was expedient for the neutral warships to guard the interests of their own people—so they did so. For all the bearing that it had on results in this case International Law might never have existed at all.
The attitude of any naval officer so circumstanced would have been the same as that of the Japanese Admiral Uryu, whose prime duty was to destroy the Russians rather than to work out the exact legality of his action. Incidentally it may be mentioned that the exact legal aspect of the question almost defies working out. Korea was a 'neutral state,' but in how far did the landing of Japanese troops make Chemulpo a Japanese harbour? In how far is the question affected by the fact that Russia had allowed Japan's right to land troops in Korea and specifically mentioned Chemulpo?[2]
As a nation the Japanese have probably more regard for International Law than any other. For instance in their war with China, Professor Takahashi was embarked in the flagship Matsushima as legal adviser to the admiral commanding. Yet that war gave us the Kowshing affair, in which this neutral British vessel chartered by the Chinese Government to convey eleven hundred soldiers to Korea, was sunk by Togo, then captain of the cruiser Naniwa. The Kowshing had left Taku before war broke out and Togo's action in capturing her was quite illegal. But on the other hand what would his action have been had he allowed her to proceed? He would have been an admirable example of a law-respecting citizen, but a singularly bad naval officer. That he sank the Kowshing and allowed the Chinese soldiers to drown without any attempt to save them was, as it turned out, merely a necessary sequence of the really illegal act of stopping the vessel at all. Both acts were dictated by expediency. With the best will in the world it would have been quite inexpedient for him to have bothered about the legal position of the Kowshing and her cargo of Chinese soldiers, and it is to be observed that the British Government allowed the Kowshing incident to slip, though there was no Japanese alliance in those days and little if any partiality for Japan. Togo's entirely illegal act was sanctioned as sound common-sense.
Questions of contraband are those which most nearly affect naval officers. In actual practice things work out to the effect that a belligerent by declaring an article contraband is able to seize neutrals carrying it to the enemy without risk of remonstrance from the neutral's government. When in 1904 Russia declared coal contraband, there is much reason to believe that she hoped thereby to solve some of her own coal problems. At a pinch it would have been possible to seize any neutral collier destined for a neutral port on the plea of 'contraband intended for Japanese use,' burn the coal, and pay compensation afterwards for the 'mistake.' No such incident appears to have occurred, but there were valuable possibilities in declaring coal contraband. Something akin to this actually happened at Vladivostok where much-needed neutral steamers were seized, declared confiscated and used, compensation being paid at some subsequent date in some cases when the 'judgment' of the Vladivostok Court was reversed. This action was obviously illegal: but it was one that no naval officer would hesitate to take, given the need of the vessels. The demands of expediency must override any legal considerations agreed to in time of peace.
Then there is the question of neutral waters, referred to in the case of the Chemulpo affair. It is quite illegal for a warship to enter neutral waters for the purposes of advantage in an action, but saving the presence of a neutral force to ensure the sanctity of such waters what ship would hesitate to ignore all laws on the matter if it had anything to gain thereby? It is quite illegal for submarines to lie in neutral waters awaiting victims, and at the close of the Russo-Japanese war proposals to frame some regulations under this particular head were mooted. Some day they are likely to take shape and be agreed to by every nation; but what submarine will be deterred from entering unwatched neutral waters on that account?
It is illegal to lay mines in the high-seas or anywhere outside the three-mile limit. The knowledge of this is an almost direct incentive to laying them further out to sea, where they. might be less expected. A mine laid where the enemy expects to find one is a perfectly useless weapon. It may be that in any case, on the ground that it is likely to break adrift and damage its own side; but the obvious thing to do with it if laid at all is to lay it on some illegal and, therefore, less to be expected spot.
From all of which it is abundantly clear that International Law is an effective law only so far as the weaker is concerned—the strong nations obeying it or enforcing it only so far as such action suits their necessities or the expediency of the case. In theory International Law rests for its action on public opinion. In practice, the value of public opinion is a small factor. If the United States Fleet—for instance—outraged International Law in war, public opinion in the United States would be with the Fleet and not with the Law. Similarly opinion in England—assuming that sympathy with the United States, which would exist in almost any war in which America might be engaged—would be a considerably more powerful factor than any regard for the letter of the Law. Throughout the world generally only those nations which were anti-American to commence with would possess a public opinion at all in favour of the enforcement of the Law. It would, in fine, be simply a vehicle for the expression of self-interest.
An interesting example of this sort of thing in operation was afforded by the Russo-Japanese war. Coal was shipped to either belligerent. The illegality of supplying coal to Russia was much discussed, but nothing was said about coal supplied at the self-same time to Japan. Public opinion was concerned not with the Law in the matter, but with its self-interest—the success of Japan.
Again, there was the case of the Malacca. Had the Black Sea been Japanese is it likely that anything would have been heard in England about the illegality of warships passing the Dardanelles? Would it not have been an expedient (and therefore justifiable) act? In Germany, however, instead of being 'reasonable enough,' as it was in the case of Russian ships, it would have been a gross violation of treaties and so forth ad lib.
There is a good deal of reason to believe that the Russian story of the Malacca incident is substantially true on several points. This story in full is as follows:—
The Malacca was watched by a Russian agent who saw on the wharf a number of cases believed to contain machinery for destroyers building in Japan and other war requisites. Observed watching, he retired. The next morning a broad arrow was upon each suspected case: though the official broad arrow should only have been put after the cases were received on board.
Hence the Malacca incident—the capture of the vessel and her subsequent release upon imperative British demands. Had the Japanese captured her under corresponding circumstances as suspected of carrying essentials for the Russian fleet would British public opinion have so eagerly supported International Law on the matter?
Then there are affairs like the Dogger Bank incident where the Russian Baltic Fleet opened fire and sank or injured some British fishing vessels. Public opinion rose to fever heat and more. Supposing a British fleet going to a distant war to have sunk some Russian fishing vessels under similar circumstances would British public opinion have viewed the incident in the same way?
International Law of course hardly legislates for incidents like that of the Dogger Bank, but it will probably have to do so ere many years have passed. Whatever views were entertained by the civil population there is no doubt that naval opinion was slow in condemning the Russian admiral, probably because it had in view precedent and the possible framing of some inconvenient law on the matter—inconvenient, because were the Baltic Fleet's offence to become a duly recognised offence, very awkward and dangerous situations might result in certain cases.
Briefly the facts were as follows:—
The Russian Baltic Fleet before leaving for the Far East was warned to be on its guard against a possible attack in the Baltic or North Sea. Near the Dogger Bank the first division—out of its direct course, either from bad seamanship or of set design, passed through a British fishing fleet. A little later the second division came up and suddenly opened fire on what the Russians alleged to have been two torpedo boats, but which others have asserted were the Aurora and Dmitri Donsköi. In the firing damage and loss of life were sustained by the fishing fleet. The Russians proceeded on their course without stopping to aid the victims.
Now it is immaterial whether the Russians fired at their own ships or not, the main point is that they believed themselves to be attacked and at once opened fire without regard to anyone else in the neighbourhood who might get hurt. This was an absolutely proper act from the naval standpoint—'Fire at anything suspicious' is the only possible order for a fleet that believes itself to be in danger of torpedo attack; to wait to ascertain may be to court destruction. Similarly, an admiral believing an attack to have been delivered would commit a more than error by waiting to save any innocent victims of his fire.
These points were evidently borne in mind by the Commissioners whose full report was as follows:—
1. The Commissioners, after minute and prolonged examination of the whole of the facts that have come to their knowledge concerning the incidents submitted to them for investigation by the St. Petersburg declaration of November 12/25, 1904, have in this report proceeded to give an analysed statement of those facts in their proper order.
In communicating the principal opinions of the Commission on each important or decisive point of this summary, they believe that they have thrown sufficient light upon the causes and the consequences of the incident in question, and at the same time upon the responsibilities resulting therefrom.
2. On October 7/20, 1904, the second Russian squadron of the Pacific Fleet, under the chief command of Vice-Admiral Aide-de-Camp General Rogestvensky, anchored near Cape Skagen with the intention of taking in coal before continuing its voyage to the Far East.
It appears, according to the deposition made, that from the time when the squadron left the roadstead of Reval, Admiral Rogestvensky had caused the vessels under his command to adopt minute precautions, with the object of placing them fully in a position to repel an attack by torpedo-boats during the night, either at sea or when anchored.
These precautions seem to be justified by the information frequently sent by the agents of the Imperial Government respecting hostile attempts that were to be apprehended, and which in all probability would take the form of attacks by torpedo-boats.
Furthermore, during his stay at Skagen, Admiral Rogestvensky had been informed of the presence of suspicious vessels off the Norwegian coast. Besides, he had learned from the captain of the transport Bakan, who had come from the north, that on the night before he had seen four torpedo-boats, which had only a single light at the masthead,
This news caused the Admiral to leave twenty-four hours earlier than he had intended.
3. Consequently each of the six different sections of the squadron steamed off separately in turn, and reached the North Sea independently of each other in the order mentioned in Admiral Rogestvensky's report; this general officer commanding in person the last section, composed of the four new battleships, Kniaz Suvaroff, Imperator Alexander III., Borodino, Orel, and the transport Anadyr.
This section left Skagen at 10 p.m. on October 7/20.
The first two sections were ordered to proceed at a speed of 12 knots and the following sections at 10 knots.
4. Between 1.30 and 4.15 on the following afternoon, October 8/21, all the sections of the squadron were passed in succession by the English steamer Zero, the captain of which vessel examined the different units closely enough for them to be recognised from his description of them. Moreover, the results of his observations are in general agreement with the indications given in Admiral Rogestvensky's report.
5. The last vessel passed by the Zero was the Kamchatka, according to the description which the captain of the Zero gave of her.
This transport, which at first formed part of the same group as the Dmitri Donsköi and the Aurora, was, therefore, at the time alone and about ten miles behind the squadron, having been obliged to slacken speed owing to a machinery defect.
This accidental delay was perhaps incidentally the cause of subsequent events.
6. Towards eight o'clock in the evening this transport met the Swedish vessel Aldebaran and other unknown ships, which she fired upon, doubtless owing to the apprehensions aroused in the momentary circumstances by her isolation, the damage to her machinery, and her slight fighting value. However this may be, at 8.45 p.m. the captain of the Kamchatka despatched to his commander-in-chief by wireless the statement respecting this meeting that he was ' attacked on all sides by torpedo-boats.'
7. In order to understand the influence which this news might have had upon the subsequent decisions of Admiral Rogestvensky it must be remembered that in his anticipations the attacking torpedo-boats whose presence had thus been announced to him, rightly or wrongly, as being some fifty miles astern of the section of ships under his command, might overtake him towards one o'clock in the morning in order to attack him in turn.
This information decided Admiral Rogestvensky to signal to his ships towards ten o'clock at night to redouble their vigilance and to expect an attack from torpedo-boats.
8. On board the Suvaroff the Admiral had deemed it indispensable that one of the two senior officers of his staff should be on duty on the bridge during the night, in order to superintend in his stead the progress of the squadron, and let him know immediately should any incident occur.
Moreover, on board all the ships the permanent orders of the Admiral prescribed that the chief officer on duty was authorised to open fire in case of a manifest and imminent attack of torpedo-boats.
If the attack were made from ahead he was to do so on his own initiative, and in the contrary case, much less pressing, to refer to his commanding officer.
With regard to these orders, the majority of the Commissioners considered that they involved nothing excessive in time of war and particularly in the circumstances which Admiral Rogestvensky had every reason to consider very alarming in view of the impossibility he found of verifying the accuracy of the warnings that he had received from the agents of his Government.
9. Towards one o'clock in the morning, on October 9/22, 1904, the night was semi-obscure, somewhat overshadowed by a slight and low mist. The moon only showed itself at intervals through the clouds. The wind blew moderately from the south-east, raising a long swell, which made the vessel roll five degrees.
The course followed by the squadron towards the south-west necessarily led the last two sections, as was eventually proved, to pass in the neighbourhood of the habitual fishing-ground of the flotilla of the Hull fishing-boats, consisting of some thirty small steamers and covering an area of some miles.
It is proved from the consistent depositions of the British witnesses that all these boats carried their regulation lights and trawled according to their customary rules under the lead of their 'admiral,' and pursuant to the indications conveyed by conventional rockets.
10. According to communications received by wireless telegraphy nothing unusual had been signalled by the sections which preceded that of Admiral Rogestvensky in traversing these regions.
It subsequently transpired that Admiral Folkersam in particular having skirted the flotilla on the north, very closely examined the nearest trawlers with his searchlights, and having recognised them as inoffensive, proceeded quietly on his way.
11. It was shortly afterwards that the last section of the Fleet led by the Suvaroff, flying Admiral Rogestvensky's flag, arrived in its turn near the trawlers' fishing-ground. The course taken by this section carried it nearly into the midst of the flotilla of trawlers, which it would have been obliged to skirt, but to the southward, when the attention of the officers on the watch on the bridge of the Suvaroff was attracted by a green rocket, which put them on their guard.
This rocket, fired by the 'admiral' of the trawlers according to their conventions, indicated in reality that the trawlers were to trawl on the starboard side to windward.
Almost immediately after this first alarm, according to the depositions, the observers on the bridge of the Suvaroff who were scanning the horizon with night glasses, discovered 'on the crest of the waves in the direction of the starboard cathead' and at an approximate distance of eighteen or twenty cables a vessel which appeared to them suspicious, because they saw no light and the vessel seemed to be coming straight towards them.
When the suspicious vessel was lit up by a searchlight the men of the watch believed that they detected a torpedo-boat steaming at high speed.
It was for these reasons that Admiral Rogestvensky opened fire on the unknown vessel.
The majority of the Commissioners express on this point the opinion that the responsibility for this act and the results of the cannonade sustained by the fishing flotilla rests with Admiral Rogestvensky.
12. Almost immediately after opening fire on the starboard side, the Suvaroff perceived ahead a small boat barring her course, and was obliged to turn to port in order to avoid colliding with it. But this boat lighted up by a searchlight was recognised as a trawler.
In order to prevent the firing of the vessels from being directed against this inoffensive boat, the axis of the searchlight was immediately raised 45 degrees.
Thereupon the Admiral signalled to the squadron the order 'Do not fire on the trawlers.'
But while the searchlight illuminated this fishingboat, according to the depositions of the witnesses, the observers on board the Suvaroff perceived on the port side another vessel which appeared to them suspicious because of its resemblance to that at which they were firing on the starboard side.
Fire was at once opened on the second object, and was thus carried on from both sides, the line of ships having by a retrograde movement returned to its original course without having modified its speed.
13. In accordance with the permanent orders of the squadron the Admiral indicated the object on which the fire of the ships was to be directed by fixing the searchlights upon them, but as each ship swept the horizon in every direction around it with its own searchlights in order to guard against a surprise it was difficult to avoid confusion.
This firing, which lasted from ten to twelve minutes, caused serious damage to the trawler fleet. Two men were killed, six others wounded; the Crane sank, and the Snipe, the Mino, the Moulmein, the Gull, and the Majestic suffered more or less serious damage.
On the other hand, the cruiser Aurora was hit by several projectiles.
The majority of the Commissioners declare that they lack precise elements to identify on what object the ships fired, but the Commissioners unanimously recognise that the boats of the flotilla committed no hostile act, and the majority of the Commissioners, being of opinion that there was no torpedo-boat either among the trawlers or on the spot, the fire opened by Admiral Rogestvensky was not justifiable.
The Russian Commissioner, not believing himself warranted in concurring in this opinion, stated his conviction that it is precisely the suspicious vessels that approached the Russian squadron for a hostile purpose which provoked the firing.
14. Respecting the real objects of this nocturnal firing, the fact that the Aurora was hit by a few 3-pounder and 12-pounder projectiles would seem to be of a natur to give rise to the supposition that this cruiser, and perhaps even other Russian vessels, delayed on the track of the Suvaroff without that vessel being aware of it, may have provoked and attracted the first firing. This error may have been caused by the fact that this ship seen from astern showed no visible light, and owing to a nocturnal optical illusion experienced by the observers in the flagship.
In this connection the Commissioners declared that they lack important information enabling them to ascertain the reasons which brought about the continuation of the firing on the port side. In presence of this conjecture certain distant trawlers might have been confounded with the original objects, and thus directly fired on. Others, on the contrary, may have been hit by a fire directed on objects further off.
These considerations, moreover, are not in contradiction with the impression of certain trawlers who, finding themselves hit by projectiles and remaining lit up in the radius of the searchlights, might have believed themselves to be the object of direct aim.
15. The duration of the firing on the starboard side, even from the standpoint of the Russian version, seemed to the majority of the Commissioners to have been longer than appeared necessary.
But this majority considered that it is not sufficiently informed, as has just been said, with regard to the continuation of the firing on the port side.
In any case, the Commissioners willingly acknowledge unanimously that Admiral Rogestvensky personally did all he could from beginning to end to prevent the trawlers, recognised as such, from being the objects of the fire of the squadron.
16. However that may be, the Dmitri Donskoi having eventually made her number, the Admiral decided to give the Cease Fire signal. The line of his ships then continued its route to the south-west without having stopped.
In this connection the Commissioners are unanimous in recognising that, after the circumstances which preceded the incident and those which gave rise thereto, there was at the Cease Fire sufficient uncertainty as to the danger incurred by the section of the ships to decide the Admiral to proceed on his way.
At the same time the majority of the Commissioners regret that it did not occur to Admiral Rogestvensky, while going through the Straits of Dover, to inform the authorities of the neighbouring maritime Powers that, having opened fire in the vicinity of a group of trawlers, those boats of unknown nationality required assistance.
17. The Commissioners, in closing this report declare that their appreciations formulated therein are not in their spirit of a nature to cast any discredit either on the military value or the sentiments of humanity of Admiral Rogestvensky and of the personnel of his squadron.
Spaun.
Fournier.
Doubassoff.
Lewis Beaumont.
Charles Henry Davis.
The report was not over well received by public opinion in either England or Russia, and in concentrating attention upon this actual incident rather than in regarding it as a case for a ' precedent,' the civil population—which indirectly, by the constant expression of opinion, has much to do with the framing of International Law—showed itself singularly unable to grasp the importance of the problem.
The heated imagination of the captain of the Kamchatka most probably produced the entire incident, but there is nothing to show that similar imaginations will not exist in the next war. Hence the grave importance of the subject.
Supposing a war between England and Germany, what will be the exact status of French fishermen who get mistaken for torpedo-boats, as assuredly they will if they are out at night anywhere in the paths of belligerents? The Paris Commission on the Dogger Bank Incident could not deal with all the possibilities opened by the subject. Russia paid lavish compensation to the injured, but nothing has been heard as to compensation for interference with normal work, due to the risk of being shot at by mistake, which will be the neutral fisherman's lot in the next naval war. It is quite conceivable that this question will involve grave complications at some future date.
The incident is mentioned as indicating another of the problems (one of a series) that bristle around International Law. It is practically impossible to frame anything to meet the case: no sane admiral or captain would obey a mandate about inspecting before firing at a suspicious object at night, and the incident will probably turn out to have put a premium on disguising torpedo-boats as fishing craft—a favourite peace-manoeuvre device at all times.
Certain other matters of International Law involve less abstruse problems, usually, however, because they hardly need a law on the matter at all. In this category may be placed the bombardment of unfortified towns without notice for non-combatants to withdraw. Common humanity would compel such a course in forty-nine cases out of fifty; in the fiftieth, a cruisercaptain, undeterred by humanity in a chance to wreak destruction with no time to wait, would hardly be deterred by any law upon the matter.
And so all through. In practically every case laws as to the conduct of naval war are superfluous either because ordinary humanity already forbids or else because expediency would in any case counsel a similar course. Laws may now and again be useful perhaps in enabling an officer of the skilful sea-lawyer type to know exactly how far he can impose upon a neutral without creating a casus belli, but the stronger man may be relied upon to guide his actions only by expediency, like Togo in the Naniwa when he sank the Kowshing. He will be a very poor naval officer who throws away any chance of damaging the enemy on account of legal considerations. The enemy may esteem his moral rectitude, but that is about all the esteem that he will earn. Even if complications are likely to follow upon his performing an illegal act in order to destroy the enemy, his duty demands that he shall still proceed to destroy. If the worst comes to the worst his country can always 'disavow the action after its accomplishment.' He may or may not be punished for it, but in any case he will have done his clear duty to his country by destroying the enemy, which, had he been more law-abiding, he would not else have done. The predicament is an awkward one for any naval officer to be placed in, perhaps; but the man who acts upon the definition set forth at the beginning of this chapter will never fail at serving his country whatsoever else he may be deficient in. The nation fittest to win is that which with a single eye takes every opportunity to win. It may be bad law, but it is sound common sense.'
- ↑ This general principle is, of course, recognised by the jurists themselves.
- ↑ See Chapter on Russo-Japanese War.