kingdom of Lithuania as well as a kingdom of Poland, apparently by depriving Russia of Lithuania and of its share of the partition of Poland, without the addition of Prussian and Austrian Poland. The proposal in each case seems to be an attempt to win over public opinion, which has always been very pronounced in favor of the Poles, and to gain the support of the Poles themselves, who are again to become a nation and a kingdom. But it is believed that the Poland of public opinion and of the Polish patriots is the unpartitioned Poland which, in 1682 under its king, John Sobieski, defeated the victorious and invading armies of Turkey under the very walls of Vienna, and saved a Christian Europe from Moslem aggression, only later to be partitioned by three of the Christian countries of Europe and among these the chief beneficiary of the victory of 1682.

Without going into details, it should be said that the ruler of Lithuania, then an independent country, married the Queen of Poland in 1568, and, by this marriage, the countries as well as their rulers became united. Poland was for centuries an unfortunate country unfortunate internally because it was an elective monarchy, and subject to foreign intrigue and dictation in the matter of election, and unfortunate externally because its territory was coveted by three countries surrounding it and which, taking three bites to the cherry instead of the proverbial one bite, absorbed it, so that part of Poland went to Prussia, a part to Austria, and a part, forming the balance, to Russia, which three countries hold the land and its people in bondage.

Frederick the Great, on behalf of Prussia, and Catherine II, on behalf of Russia, concluded two treaties on the 4/15 of January, 1772, in the name of the Holy Trinity, an expression which the late Professor Jellinek of Heidelberg was accustomed to say was always used by Powers on the point of committing a peculiarly immoral agreement. By the first, they agreed to occupy and to annex certain Polish provinces, and by the second they determined conditions concerning the maintenance of auxiliary troops in case of attack. The reason assigned by the King of Prussia and the Empress of Russia was "the general confusion in which the republic of Poland exists by the dissension of its leading men and the perversity of all its citizens." Austria was not a party to this treaty, but it was the desire and the intention of the contracting parties that the Empress Maria Theresa should accede to it on the part of Austria. This Austria agreed to on February 19,

1772, and two treaties were entered into on July 25, 1772, between Russia and Austria, on the one hand, and Russia and Prussia, on the other, fixing the portions of Poland which each of the partitioning Powers should and actually did annex.

Poland lost by this action on the part of its neighbors about onefifth of its population and one-fourth of its territory. The Empress of Austria was apparently loath to take part in the partition, but, when she made up her mind to join her imperial sister and her royal brother, she showed herself very exacting as to her share of the spoils, so exacting indeed that Frederick the Great said to the Austrian Ambassador: "Permit me to say, that your mistress has a very good appetite." This remark is equally applicable to all three of the sovereigns engaged in the partition of Poland, and the appetite, as the proverb says, "grows by what it feeds on."

Therefore, a second partition was agreed upon September 3, 1793, by which Poland was reduced to one-third of its original dominions with a population of some three and a half millions. In Lessing's Minna von Barnhelm, Just is not satisfied with the single glass. He wished a second, and, when the second was forthcoming, he added a proverb to the German language, upon which Austria, Russia and Prussia acted, that all good things are threefold.

Austria and Russia took the first step. Prussia, under the successor of Frederick the Great, acceded to the treaty of January 3, 1795, between Catherine of Russia and Maria Theresa's successor, and, in the treaty of the 10th of October, 1795, the balance of Poland was gobbled up.

Passing over the period of the French Revolution and of the Empire, the Congress of Vienna, which remade the map of Europe, took up the question of Poland and apportioned it among the three Powers. The Russian portion was erected into the kingdom of Poland under the sovereignty of Alexander, Czar of Russia. An insurrection of 1830 was put down by the Czar Nicholas, the successor of Alexander, and Russian Poland became a Russian province.

So the matter stands today. Prussia has its share; AustriaHungary has its share, and Russia has its share.

Historians have given themselves much trouble to determine the sovereign who first proposed the partition. Carlyle, in his elaborate Life of Frederick the Great, thinks that the partition was doomed to happen, stating that

Two things, however, seem by this time tolerably clear, though not yet known in liberal circles: first, that the Partition of Poland was an event inevitable in Polish History; an operation of Almighty Providence and of the Eternal Laws of Nature; . . . and secondly, that Friedrich had nothing special to do with it, and, in the way of originating or causing it, nothing whatever. It is certain the demands of Eternal Justice must be fulfilled. . . . If the Laws and Judgments are verily those of God, there can be no clearer merit than that of pushing them forward, regardless of the barkings of Gazetteers and wayside dogs. . . . Friedrich, in regard to Poland, I cannot find to have had anything considerable either of merit or of demerit, in the moral point of view; but simply to have accepted and put in his pocket without criticism, what Providence sent.1

The Prussian historian, Von Sybel, however, is of a different opinion. "The first official suggestion," he says, "came no doubt from Germany, but we are not to conclude that this was the cause of Poland's fall. If that suggestion had not been made, Poland would, it is true, have remained undivided, but would have fallen as a whole into Russia's hands." 2

The question of priority is not important. The fact is that the three countries, Prussia, Russia and Austria, took part in the partition and they are therefore all guilty, and they are in the opinion of the undersigned equally guilty, for each of the participating Powers was a free agent and could and should have resisted the temptation to profit at the expense of a neighboring country, irrespective of the sovereign from whom the proposal first came.

There is a happy German saying, Die Weltgeschichte ist das Weltgericht, which may be freely rendered in English as posterity is the ultimate court of appeal," and in this court the late William E. H. Lecky has pronounced the following judgment:

It is difficult to exaggerate the extent to which it shook the political system, lowered the public morals, and weakened the public law of Europe, for it was an example of strong Powers conspiring to plunder a feeble Power, with no more regard for honour, or honesty, or the mere decency of appearances than is shown by a burglar or a footpad.3

Will the great war of 1914 right the wrong of 1772, and shall we again see an independent, free and equal Poland, or are we to see a partial, autonomous kingdom at the expense of one or other or of all the partitioning Powers?

JAMES BROWN SCOTT

1 Carlyle, Life of Frederick the Great, Vol. VI, pp. 481-482.

2 Sybel's History of the French Revolution, English translation, Vol. II, p. 347. 3 Lecky, History of England (1906 ed.), Vol. VI, p. 81.

JURISDICTION APPURTENANT TO SHIPS OF WAR OVER THE HIGH SEAS

The present writer is in receipt of a communication from an honored and esteemed correspondent, a distinguished member of the faculty of a well-known French university, in which the utmost surprise is expressed at the "action - or rather the inaction of the American men-of-war when, off Nantucket, they suffered merchant ships to be sunk by the U-63 within the range of their guns." "It seems to me" (the French writer continues) "that there was there a violation of the rights and sovereignty of the United States. I state my opinion on this point of international law in a short note which you will find included herein."

The note, which was written in French, covered some five pages and began by a quotation from Baron Ferdinand de Cussy's work on Phases et Causes célèbres du droit maritime des Nations, t. 1, p. 250, as follows:

Par extension au principe de la souveraineté sur la mer territoriale, on peut dire que le droit de police et de protection appartenant au souverain du territoire baigné par la mer, lui appartient également dans l'atmosphère de ses bâtiments de guerre en pleine mer.

Un vaisseau qui navigue en pleine mer, le patrimoine commun de toutes les nations, ce vaisseau qui voyage à pleines voiles, emporte avec lui sur l'océan une souveraineté ambulatoire, momentanée, fugitive comme son passage, incontestable toutefois. Un vaisseau dans cette situation a même une sorte de territoire autour de lui, une atmosphère propre qui a pour mesure la portée de ses canons. Cela est si vrai que si un navire poursuivi par un autre se réfugie dans ce rayon, il sera à l'abri des poursuites de l'agresseur comme s'il était dans une rade et un port neutre. . . .

He says further that not merely when pursued by pirates, but by ships of a nation with which his sovereign is at war, if the fugitive encounters the warship of a neutral Power, all pursuit ought to cease from the moment the flying ship finds herself within the range of the neutral cannon, as if she had reached a neutral port. My honored correspondent expresses his approval of the above views quoted from De Cussy and says he can not understand how the commandant of a naval force can suffer, under his eyes and within range of his guns, acts of aggression upon an inoffensive merchant ship. He thinks such conduct on the part of the attacking ship but little friendly to the neutral Power because the attack is made as if the neutral Power were not represented. He says if he were walking in a solitary place,

and there saw a robust man armed with a club beating his wife or child, perhaps for serious cause, nevertheless the act would outrage him because it would wound his feelings of compassion, and that the aggressor, acting as if the observer were not present, wounds his dignity in appearing to consider him incapable of intervening to protect the victim of his brutality.

With deference, it is submitted that the above views, as to the part of the sea at any time covered by the guns of a neutral ship of war becoming for the time being neutral territory, like a neutral port, must be met by a like proposition, namely, that the high sea within range of the guns of a belligerent battleship becomes belligerent territory within which undoubtedly acts of war on the part of the belligerents are fully justified and cannot be restrained by the invasion of such belligerent territory by a neutral warship.

In the case mentioned, the German submarine was a vessel of war. The neutral and belligerent merchant ships were within range of her gun and torpedo fire when the American ships approached. It would be strange if the doctrine prior in tempore potior in jure were in this case reversed and the last comer had the complete. right to displace and paralyze the powers of the belligerent ship of war in territory already subject to her control.

Laying this view aside, however, though it illustrates the difficulties of maintaining the views advanced, it is, again with deference, submitted that the doctrine of De Cussy, though supported by possibly a few French writers, has never found acceptance at the hands of the principal writers on maritime law or by the courts; that it is so little known as generally not even to be mentioned; that, if one may say so, it is highly fantastic and of impossible application, the jurisdiction varying with the greatly differing range of marine guns and with every movement of the ship. It seems to have its origin in certain confusions: a confusion as to the situation of a merchant ship sailing under convoy, when the battleship takes her under its protection, with the case of a ship, on the high seas, of another Power, which comes merely within the range of the guns of a neutral ship of war, the latter having in no way accepted the merchant ship as its charge or received it under its protection. A ship of war is no more a floating island of her own country on the high seas than is a merchant ship, save for certain allowed interference with the latter. Each is subject to the law of her own country and of no country but her own. Each is subject,