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Cornell Mniversity Library

BOUGHT WITH THE INCOME
FROM THE

SAGE ENDOWMENT FUND

THE GIFT OF
Henry W. Sage

x189Q1

A.7698. 4 23/11/94

 

 
DATE DUE

 
CHAPTERS ON THE PRINCIPLES

OF

INTERNATIONAL LAW.
Zondon: C. J. CLAY AND SONS,
CAMBRIDGE UNIVERSITY PRESS WAREHOUSE,
AVE MARIA LANE,

AND
STEVENS AND SONS, LIMITED,

119 AND 120, CHANCERY LANE,
LAW PUBLISHERS anp BOOKSELLERS.

 

Cambritge: DEIGHTON, BELL AND CO.
HLeipsig: F. A| BROCKHAUS.
Pew Work: MACMILLAN AND CO.
CHAPTERS ON THE PRINCIPLES

OF

INTERNATIONAL LAW.

BY

JOHN WESTLAKE, Q.C., LL.D.,

WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE UNIVERSITY
OF CAMBRIDGE;

LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE $
HONORARY LL.D. OF THE UNIVERSITY OF EDINBURGH;
MEMBER AND LATE VICE-PRESIDENT OF THE INSTITUTE OF
INTERNATIONAL LAW.

CAMBRIDGE:
AT THE UNIVERSITY PRESS.

1894.

[All Rights reserved.]
G
A. 76984

Cambridge:

PRINTED BY C. J. CLAY, M.A. AND SONS,
AT THE UNIVERSITY PRESS.
PREFACE.

Tuts book is not a detailed treatise on international
law, but an attempt to stimulate and assist reflection
on its principles. It is primarily intended in part per-
formance of a professor’s duty to his university, though
not without hope that it may be of use to others as well.
International law being the science of what a state and
its subjects ought to do or may do with reference to
other states and their subjects, everyone should reflect
on its principles who, in however limited a sphere of
influence, helps to determine the action of his country
by swelling the volume of its opinion. Indeed to
prepare men for the duties of citizenship is the chief
justification for introducing into education a subject
which, on account of its inevitable defect in precision,
is less suited as a training for the mind than as an
exercise for the trained mind. Again, international
law is not a highly technical subject, and it would be a
mistake to aim at giving it more technicality by the
mode of treating it. The law of a country is bound by

w. b
vi INTERNATIONAL LAW.

 

written enactments and recorded judicial deliverances,
and the procedure for applying it is as fixed as the law
and by similar means. Hence arise struggles between
the letter and the spirit, and the spirit receives no
effect unless means can be found of bringing it within
the letter. But there is little of the letter, little of ex-
press convention or authoritative formula, to enter into
the problem of determining the duty of a state towards
its neighbours. If any one says that the technical duty
of a state is to take or abstain from taking a certain
course, but that in the given circumstances it may Justi-
fiably act otherwise, we may be pretty sure that he had
no sufficient reason for laying down the technical duty
in the terms which he has chosen. On more than one
ground, therefore, there ought in this case to be less
than the usual difficulty in combining academic and
general readers.

In the first chapter the reader is invited to consider
shortly the place of international law among the
sciences, and in what sense it is law. This is neces-
sary because the writers on our subject speak much of
a law of nature, which has to be distinguished from the
laws of nature familiar to us in what are called the
natural sciences. It is also necessary because of the
dominant position which certain views of John Austin
have held in the English universities, as to which there-
fore I must ask the general reader to excuse a few
sentences which will scarcely interest him. That emi-
nent thinker rendered great service by elucidating the
various elements, psychological states and states of
fact, which have to be provided for by the law of a
country, and the knowledge of which makes up the
PREFACE. vil

 

larger part of what in the English universities is called
jurisprudence. But he prefaced his system by analys-
ing the law of a country into commands addressed by
a sovereign to subjects, including in his description of
the sovereign all those who participate in the supreme
authority. And the definition of the law of a country
which resulted from that analysis he gave as the def-
nition of law, so that international law, not being set
by an Austinian sovereign to Austinian subjects, was
in his view not law at all, but what he called positive
international morality. Now this was beside the mark
of what followed in his own lectures. In elucidating
the elements with which the law of a country must be
concerned Austin found no use for his definition of law,
perhaps it was impossible to find any ; and thus we are
fortunately able to retain most of the fruits of his
labour, unaffected by the doubt which has at last arisen
about that definition.

What is called the historical school contends that
Austin’s definition is not applicable to law in all states
of society or under all political systems, in particular
that customary law often exists in communities in
which they tell us that no Austinian sovereign issuing
Austinian commands can be pointed out; and they
bid us begin our study by enquiring what law has in
fact been in its various forms, from the earliest times
which can be traced, and from the rudest savages that
can be found, to the most highly organised of modern
states. Those on the other hand who demand that
some clue shall be given before that labyrinth is entered
are called the analytical school, and in England it has
been too often assumed that no one can belong to the

62
Vili INTERNATIONAL LAW.

 

analytical school without accepting Austin’s definitions.
I am keenly sensible of the interest and value of his-
torical and even of prehistorical investigations, inform-
ing us of institutions and states of society remote from
our own. We learn from them how the different
peoples whom we study usually conducted themselves
with regard to family, property, or any other matter
which in our actual England is regulated by law; by
what beliefs and motives, and by what commands or
compulsion if any, their conduct was kept to its usual
lines. And by accumulating a number of such investi-
gations we learn how what we now know as the law of
a country has arisen. But the analytical school are
certainly right in maintaining that, if we give the name
of law to anything which we so discover in a remote
state of society before we have fixed in our minds what
we mean by that name, we beg the question, and have
no security that our language has any consistent, or
therefore useful, sense.

It does not therefore seem to me admissible to dis-
pense with an analytical enquiry into what we mean
by law, but whatever merit Austin’s analysis may have
for the law of a country, his treatment of international
matters appears to be inadequate, as notwithstanding
his great ability it well may have been from his not
having given them much attention. We may grant,
though it has been disputed, that a sovereign in his
sense, the commanding part or body, may always be
found in a state if looked for carefully; also, what
cannot be disputed, that no commanding part or body
can be found among the states of Europe and America.
Still, it will not follow that there is nothing in the
PREFACE. ix

 

intercourse between those states which can be more
properly classed with law than with morality. Whether
that is so must be determined by observation, and
observation will probably bring us back to certain very
ancient conclusions. We may find that, besides ap-
proving conduct as moral or reprobating it as immoral,
men distinguish the morality which they deem from that
which they do not deem themselves justified in enforc-
ing ; that every society tries to express that distinction
in rules suitable to the purpose for which it exists, and
acts on it with more or less consistency; that the nation
with its law is merely the strongest case in point; and
that another case, not less real because weaker, is pre-
sented by the society of states with its international
law. And we may find an incidental advantage in
having cleared the foundations of our subject from
Austin’s nomenclature. His definition of a sovereign
included that the person or body called by that name
should not only be the commanding portion of the
state, but should not be, himself or itself, subject to any
commands, in other words, should be independent.
Now sovereignty and independence are terms of inter-
national law, but at least in that science they belong to
the state as a whole and not to any part of it. In the
system of Europe and America a state is accepted asa
unit, whatever may be its internal constitution. It is
the state, and not the Austinian sovereign within it,
that is sovereign and independent. Consequently an
attempt to adhere to the nomenclature which we have
rejected might have led to confusion, and to enquiries,
irrelevant to international law, as to where in any poli-
tical body the Austinian sovereignty lies.
x INTERNATIONAL LAW.

 

We can now return to matters of more general
interest. The international lawyer is in search of the
rules existing in the international society and more or
less enforced by it, but very few of those rules have been
laid down by conventions between states. They must
be looked for in the practice of states; but when a
practice is quoted as carrying authority, it must be
further shown that it has not consisted of a number of
purely voluntary acts or abstentions, but that the thing
has been done or abstained from in obedience to a
persuasion that such was the law. Thus the appeal to
practice obliges us to join with it the study of opinion,
and there are cases in which we are driven to the study
of opinion alone, because no practice may exist on the
point in question, or because we may be called on to
recognise that, through a change of opinion, an old
practice has ceased to be accompanied by the general
persuasion of enforceable right without which it cannot
be Jaw. We also have to examine the history of inter-
national relations for the purpose of seeing how far in
different ages a real society has existed between states;
from what date the society which now exists between
them in Europe and America may be reckoned, so that
its practice may be quoted as carrying authority; and
how the development of opinion has been connected
with the changes in international relations. All this
forms a complicated investigation, the parts of which
act and react on one another, and the historical method
seems to be the best for entering upon it. Therefore
in the chapters from the second to the fifth I ask the
reader to accompany me from ancient Greece to the
middle of the eighteenth century, confining his atten-
4

PREFACE. Xl

 

tion to the most important events and thinkers, for
which alone there is room in so short a sketch, but to
which, even in a larger work, it would be desirable to
introduce him before entering into further detail on any
part. It has sometimes seemed to me that the brief
accounts of the older writers which are given in modern
treatises have lost, in passing from hand to hand, a
little of their likeness to the originals, and that the
points in the originals which are selected for mention
are rather those to which later systems attach the most
importance than those which best represent the thought
of the writers. The great work of Grotius is especially
one of which it would be difficult to form either an
adequate or even a correct notion from the few lines in
which his opinions are usually mentioned, and some
pains have here been taken to represent it as it is.
The Peace of Westphalia has been dwelt on with in-
sistence, as marking the era from which the existing
international society dates, and as giving important
help towards understanding its nature.

It is, or ought to be, familiar to all who have
engaged in these studies that communion of thought
between England and the Continent meets with a cer-
tain difficulty from the fact that jus, dvozt, recht—in
Latin, French and German—combine the two mean-
ings of law and right, which in English are so sharply
distinguished that there is no word combining them.
Latin, though as widely known in England as in any
other country, does not make us sufficiently alive to
the circumstance, because law, which to an English-
man is apt to appear the more important meaning of
the two, is also the predominant meaning of jus. But
Xil INTERNATIONAL LAW.

 

drow and recht, when not used with a definite reference
to the law of a country, seem to carry to a French or
German ear a sense of which the nearest English equi-
valent would oftener be right than law. This does not
place the continental thinker in Austin’s point of view.
The international right which he understands by
drott international is something more than that con-
duct which is entitled to moral approval. It is a true
jural right, which, as he holds, not only ought to reign
but ought to be made to reign in the conduct of states.
But there is a difference between him and the English
thinker. Both those who speak of international law and
those who speak of /e droit international may regard
their subject as being the body of rules of a society, but
the former would think primarily of the rules, and then
of the right as ordinarily measured by them, the latter
primarily of the right, and then of the rules as ordinarily
embodying it. Both may regard the rules as to be
obeyed, subject to exceptions, but the former would
regard the exceptions as matter rather for casuistry
than for law, while the latter would see in them the
vindication of a higher jural right. The practical diffe-
rence would be most felt when the change of a rule was
advocated. Those whose prepossession was chiefly
with law, while unable to contend that in the absence
of an organised legislature law might not be changed
by the same power of opinion which had established it,
would be slow to admit the change. But those whose
prepossession was chiefly with right would be impatient
of the continued existence of any rule which they no
longer believed to embody it. The prepossession with
right, though not necessarily united with the notion of
PREFACE. xill

 

abstract or primary rights inherent in persons and
states, is apt to lead to it: towards the end of the
historical chapters I have introduced the reader to that
notion in speaking of Wolff, who made it one of the
foundations of his system. All the more important
considerations having, it is hoped, been brought forward
and received some discussion in the pages thus far
referred to, I proceed in Chapter VI to the delicate task
of laying down the general principles of international
law in short form. My point of view is that of law,
and [| think that the paragraphs which I have drawn
up express what is generally held in England, while
the more moderate of those who set out from right will
perhaps not substantially dissent from them, though
for themselves they would have expressed some of
them differently.

Coming now to particular principles, Chapter VII
explains those concerning the legal equality of states,
their political inequality, and the position and protec-
tion of the subjects of a state when in foreign countries
or contracting with foreign governments. These are
matters which, if we set out from the idea of primary
rights, would fall under those of independence and
equality. Chapter VIII deals with what, in such a
system, would be placed under the primary right of
self-preservation, and discusses the alleged right and
the actual rules relating to the matter.

Chapter IX is devoted to the nature and acquisi-
tion of territorial sovereignty, with the allied topics of
protectorates in uncivilised regions and spheres of
influence, and contains much on which controversy
may be expected. It is based on a sharp distinction
XIV INTERNATIONAL LAW.

 

between territorial sovereignty and property, with a
consequent abandonment of those arguments relating
to the former which have been derived from the Roman
law as to the latter or from feudalism. This position
has not been previously taken up by any English
writer, and it was necessary to fill the void by a new
treatment of the title to territorial sovereignty, espe-
cially in uncivilised regions, with regard to which the
Roman doctrine of occupation as a natural mode of
acquiring property had been made to do duty. Hence
again it was necessary to consider the relation of civi-
lised powers and their international law to uncivilised
natives, and the nature and limits of the rights which
such powers and their subjects can possibly derive
from the natives by the treaties which have been so
much in vogue in Africa. The great human interest
of that question would of itself have been a sufficient
motive for its introduction into this book, even had it
not been required for the scientific purpose mentioned.
My views as to natives and treaties with them, and on
inchoate titles and the conditions for their completion,
have already been published in the Revue de Drott
International, in connection with the disputes of a few
years since between England and Portugal. In deal-
ing with protectorates in uncivilised regions, I have
pointed out the radical distinction between them and
protectorates over states, and have tried to put this
new form of territorial aggrandisement on its proper
and independent basis.

Chapter X is an attempt to make the British posi-
tion in India scientifically intelligible. Here again the
great interest of the subject would have justified its
PREFACE. XV

 

introduction, even did not our position, and the steps
by which it has been attained, illustrate more than one
of the principles that have formed the topics of the
preceding chapters. The discussion which the subject
here receives has been greatly facilitated by the recent
publications of Mr Tupper and Mr Lee-Warner, but it
had already occupied my attention.

The eleventh and last chapter of the present series
treats of the principles of the laws of war as between
belligerents. Attention has been drawn in it to the
extreme license on the ground of necessity which has
received a certain scientific sanction from one of the
contributors to the important Handbook of Interna-
tional Law edited by the late Professor von Holtzen-
dorff.

The title of chapters which has been chosen instead
of that of essays implies a certain connection and
sequence in their subjects, which the foregoing sum-
mary may show to exist. But several more chapters
would have to be added in order to make this a com-
plete work on the principles of international law. My
intention in planning it included one on the principles
of neutrality, and another giving examples of the growth
of international law, in which one would have borne
on neutrality. These have been postponed because it
was found that a more elaborate treatment of that sub-
ject would be necessary than would have been in pro-
portion to the scale of what is now published. The
rights and duties of neutrals are the part of interna-
tional law which has changed most since the time of
Grotius, and with regard to which ideas tending to
further change are still the most rife; and I hope to
XVI INTERNATIONAL LAW.

 

make a thorough examination of its principles at no
distant time. Meanwhile it is trusted that the present
volume may furnish students and others with matter
for reflection, and assist them in attaining clear notions,
on the nature of the society formed by states and on
many parts of their mutual obligations.

J. WESTLAKE.

8th September, 1894.
CONTENTS.

CHAPTER I.

INTERNATIONAL LAW IN RELATION TO LAW IN GENERAL.

International Law the Body of Rules between States

Law and Society :

Jural Laws and the Laws of alive ious i Scienée

The Society of States compared with other Societies

A special point of Contact between International and faiowal
Law: Private International Law

Another special point of Contact between ihiverwational anil
National Law: Territory and Property : Natural Law, or the
Law of Nature as a Jural Conception

Austin’s Limitation of the term “ Law”

The Moral Law

Rights and Wrongs

CHAPTER II.

THEORY BEARING ON INTERNATIONAL LAW DOWN TO THE
RENAISSANCE.

Greece

Rome: Jus Gentium

Rome: Jus Naturale ; : :
The dissolution of the Roman empire : Icidlore of Seville
The Renaissance: Suarez

CHAPTER III.
AYALA: GENTILIS : GROTIUS.

Ayala
Gentilis .
Grotius

PAGE

AN

‘Oo

10
II
15
16

17
18
22
23
25

30

33
XVili INTERNATIONAL LAW.

 

CHAPTER IV.

PAGE
The Peace of Westphalia and Pufendorff —. ‘ : ‘ 52
CHAPTER V.
BYNKERSHOEK : WOLFF: VATTEL.
Bynkershoek . 5 ‘ ‘ : : : : : 66
Wolff. ‘ : 7 : : ‘ : ; a ‘ 70
Vattel =. é : 2 : é é , 4 . é x 76
CHAPTER VI.
The Principles of International Law... j ‘ : d : 78
CHAPTER VII.
THE EQUALITY AND INDEPENDENCE OF STATES.
The Independence and Legal Equality of States, and Semi-
Sovereignty . F 86
The Political Inequality of ‘States, and the Great Powers of
Europe . é 92
The Equality of States in Giviileation, aia the Provention af
Subjects abroad. ‘ , ‘ ‘ : ‘ : ‘i IOI
CHAPTER VIII.

INTERNATIONAL RIGHTS OF SELF-PRESERVATION.
Self-preservation as an alleged Primary Right. ; IIo
Rights of Self-preservation actually allowed by ititertatienal Taw 114
The Balance of Power . ‘ 120
Alleged right of Self- ee agalnet fhe Contagion of Reus

lution ‘ ‘ . ‘ 122
Self-preservation as a eenise of Gritiinal Turiediedun : : ; 125
CHAPTER IX.

TERRITORIAL SOVEREIGNTY, ESPECIALLY WITH RELATION TO
UNCIVILISED REGIONS.
Territorial Sovereignty distinguished from aa ‘ : 4 129
The Title to Territorial Sovereignty . 134
The Position of Uncivilised Natives with regard to Tntermarlovial
Law : : . : : : : : é 137
Government the International Test of Civilisation : : I4I

Treaties with Uncivilised Tribes . ‘ “ ‘i 3 r 143
 

CONTENTS. x1X
PAGE
Discovery and Occupation as International Titles 155
The Inchoate Title by Discovery or Occupation 160
The Ripening of an Inchoate Title into a Complete one 163
The Geographical Extent of International Titles in Undintiiked
Regions : 166
Alleged International Title by Civitising Tilugnée aed bayou
the limits of Occupation 174
Protectorates in Uncivilised Regions 177
Spheres of Influence 187
CHAPTER X.
THE EMPIRE OF INDIA.
The East India Company and Companies in General . 190
Rise of the British Empire in India, from the point of view of
International Law “ 193
The Empire of India in relation to international Law 5 211
The Empire of India in relation to Constitutional Law . 219
CHAPTER XI.
War.
The Rules of War considered as Laws . 232
Principles relating to Particular Military Gpewtions a ‘ 236
Principles relating to the Conduct of War generally: Kriegs-
manier and Kriegsraison 238
The treatment of the Peaceable Population, arid a Private
Property on Land and at Sea 245
Retorsion 253
The General Thee of the Relation of Bubiscts 4s toa War 258
Humanity in War . : : 4 264
The Improvement of the Laws of War 267
INTERNATIONAL LAW.

CHAPTER I.

INTERNATIONAL LAW IN RELATION TO LAW IN GENERAL.

International Law the body of Rules between States.

INTERNATIONAL law is the body of rules prevailing
between states. It may also be described as the body
of rules governing the relations of a state to all outside
it, whether other states or private persons not its
own subjects. These definitions are not inconsistent,
because, where international law allows a state to have
direct relations with a private person not its own
subject, it is only by virtue of a rule prevailing be-
tween states that this is so. Any state may capture
try and execute a pirate, whether its own subject or
not. Any belligerent state may capture try and
condemn a ship belonging to a neutral owner for
violating a blockade established by it. This is so
because it is a rule between states that his own state
may not interfere for the protection of the pirate or the
blockaderunner. If a state presumes to act directly
against a private foreigner in a case in which no inter-
national rule excludes the state to which the latter

Ww, I
2 INTERNATIONAL LAW. [cHap.

 

belongs from protecting him, the matter becomes one
between the two states: the foreigner’s state is injured
even though it may not seek redress.

These considerations furnish the answer to a ques-
tion which is sometimes asked, whether private persons
can be the subjects of international law. It would be
pedantic to deny that the pirate and the blockade-
runner are subjects of international law, but it is only
by virtue of rules prevailing between states that they
are so.

Law and Society.

We have next to ask ourselves what is meant by a
rule prevailing between states. It is meant that states
form a society, the members of which claim from each
other the observance of certain lines of conduct,
capable of being expressed in general terms as rules,
and hold themselves justified in mutually compelling
such observance, by force if necessary; also that in
such society the lines of conduct in question are ob-
served with more or less regularity, either as the result
of compulsion or in accordance with the sentiments
which would support compulsion in case of need. It
is an old saying, wz soctetas 261 jus est ; ‘where there
is a society there is law.” And perhaps no better
account can be given of what is commonly understood
by law than that it is the body of rules expressing
the claims which, in a given society, are held to be
enforceable and are more or less regularly observed.
When a claim is urged but is not held to be en-
forceable, it is commonly called a moral claim as
distinguished from a legal one. In order to become a
legal claim it must be accompanied by the sentiment
that it would be justifiable to enforce it, and that
1.] LAW AND SOCIETY. 3

 

sentiment must be shared by the general mass of
some society which is concerned with the matter. If
in that society the claim is not with some degree of
regularity either enforced or observed without the
necessity of resorting to force, it will follow that the
sentiment in favour of enforcing it is wanting either in
width of diffusion or in strength. The claim may be
in process of becoming a legal one, but as yet it is
only a moral one. On the other hand, where no claims
have become legal ones, there cannot be a society
in any true sense. A number of men having certain
concerns in common may feel no need of a particular
society with laws to regulate them, because the men
themselves are included in the larger society of the
state, the laws of which are sufficient for their as well
as for other particular purposes. But if a number of
states attempted to live with no common sentiment at
the back of their mutual claims sufficient to secure
some regularity and impose some limits with regard to
them, disorder and violence would reign unchecked by
any social bond. So the maxim mdz soczetas bc jus est
correctly puts before us society and law as mutually
dependent. They must have been inseparable as facts
from the earliest time at which there was any inter-
course between men, probably before there was any
clear consciousness of the notions corresponding to the
facts, and they are still inseparable in all departments
of intercourse between men. Without society no law,
without law no society. When we assert that there is
such a thing as international law, we assert that there
is a society of states: when we recognise that there is
a society of states, we recognise that there is inter-
national law.
4 INTERNATIONAL LAW. [cHar.

 

Jural Laws and the Laws of Nature known to
Scrence.

The law which belongs to society is a rule for
human conduct. That the laws of nature in the
modern scientific sense are different in kind from rules
for human conduct may seem too obvious to need
pointing out, but in fact the two senses of the word
“law” have led to so much confusion that it is necessary
to insist on the distinction between them at the outset
of my subject. It will assist us if we speak of laws for
human conduct, whether national or international, as
jural laws. Laws of nature are statements of certain
facts of nature, namely of certain invariable sequences
of antecedents and consequents. Jural laws are direc-
tions. The formula of the one is “this is”; the formula
of the other is “do this.” Consequently laws of nature
are never broken: if it were found that a phenomenon
contradicting an asserted law of nature had happened,
the conclusion would be that the asserted law was not
one. But jural laws are broken by men’s disobedience
to the directions which they convey, even although the
lawbreaker may be punished. The only link between
the two is that the uniformity with which the conse-
quents in nature follow the antecedents suggests the
uniformity with which a jural law applies or is intended
to apply to a whole class of cases. On account of that
meagre analogy the term “law” has been extended
metaphorically from jural laws to laws of nature, and
the extension has been defended on the ground that
jural laws will not be beneficial, in most cases will not
even obtain any wide observance, if the facts expressed
by the laws of nature are not duly taken into account
in framing them. That is a true remark: a wise law-
| JURAL LAWS AND THE LAWS OF NATURE. 5

 

giver must take facts of all kinds into account. But to
take a fact into account is not blindly to copy it, and
the metaphorical extension of the term “law” has
tended to conceal the truth that one of the most
important functions of jural law is not to copy but to
limit and correct those habits and impulses which,
regarded merely as facts, are laws of nature. Thus an
impulse to defend ourselves is linked to many forms of
danger by a sequence of cause and effect. The various
manifestations of that impulse are proper subjects of
enquiry for the natural historian, and furnish him with
laws of nature so far as they are found to take place in
uniform courses. But the impulse is often so strong
and unreflecting that its free gratification would be
incompatible with any society among men. It prompts
us to ward off danger from ourselves by transferring it
to innocent persons, and jural law has to distinguish
and punish the cases in which it is reprehensible to
yield to the impulse of self-defence. This example
is an instructive one with regard to international law.
The word “nature” is so suggestive of praise that self-
defence, being as an impulse a law of nature, has been
erected into a primary right. Writers have been found
to treat the right of self-defence, not as a compendious
expression for summing up those rights of defending
itself which on jural principles can properly be allowed
to a state in various circumstances, but as a natural
source from which it may be deduced that a state may
justifiably do every thing necessary for its defence.
Now such reasoning is not only immoral, but it leads
to no definite result. The action of the licensed self-
defender exposes other states to danger, and their
rights of self-defence meet that of the first state in a
conflict for the solution of which no principle is
6 INTERNATIONAL LAW. [ CHAP.

 

furnished. The only remedy is to bear well in mind
the distinction between the laws of nature and jural
laws.

The Society of States compared with other Socteties.

Returning to international law as the jural law of
the society of states, we have to compare that society
with other forms of human association. Possessing
little organisation and no officers, never indeed perform-
ing a truly collective act, the body of states might at
first sight be likened to what is commonly called
“society,” consisting of persons interested in main-
taining the rules of good breeding, or what at the time
and place they consider to be such. In that loosest of
all forms of association rules are maintained by the
independent, though concurrent, action of individual
members in shunning intercourse with those who do
not observe them, and by the support which the
members give to one of their number who shows
resentment against a person by whom the rules have
not been observed towards him. States however do
not to any great extent use the shunning of intercourse
as a means of enforcing international rules. The popu-
lations of different countries are too closely united by
commerce, travel, intermarriage, and even by the lines
of religion crossing political boundaries, for public
intercourse between them through their national organs
to be easily dispensed with. Permanent diplomatic
intercommunion has been forced by European states
on Eastern empires which were unwilling to admit it,
and the withdrawal of ambassadors is either a prelude
to war or a step which brings war within measurable
distance, while when war ends public intercourse is
1. | THE SOCIETY OF STATES COMPARED. 7

 

restored, In this respect the society of states is closer
even than a cricket club or a trades union, notwith-
standing that these perform collective acts when they
enforce their rules by formally expelling recalcitrant
members. The exclusion of a state from the inter-
national society is scarcely more thought of than, within
a state, the expulsion of a subject is thought of as a
means of enforcing the law of the land. The inter-
national society answers to a want of mankind which
no one is permitted to ignore. And it is far from
lacking that other mode of enforcing its rules which
consists in the support given by the members to one of
their number who has been injured by a breach of
them. Often, it is true, a justly offended state is left
in the particular case to fight its own battle, but it
receives a moral support from the general recognition
that its resort to arms was the exercise of a right, and
the interests of states meet and cross each other at so
many points that there is generally, before long, some
point at which the offender is made to feel the loss of
sympathy which his conduct has occasioned.

If on the other hand we compare the international
society with the national one which exists by virtue of
the state tie, the differences which strike us most are
the collective character and overwhelming strength of
the power which enforces the rules of the latter, and
the great variety of topics to which those rules relate.
In other words, there is in a state a sovereign authorit
and the citizens are in general subjection to it, while
in the society of states there is no sovereign authority
and the life of each is touched by international law
only at a few points. A third difference, that which
exists in the amount of obedience paid to international
and national law respectively, does not seem to. deserve
8 INTERNATIONAL LAW. [ CHAP.

 

the prominence sometimes given to it. The truth is
that much the larger part of the mutual relations of
states is carried on with great regularity in accordance
with the international law relating to the several
matters concerned, and that the cases which have a
contrary appearance are mostly those in which a rule
is uncertain or in which the change of a rule is strongly
advocated. For example, there is no universally re-
ceived enumeration of the articles which a belligerent
may treat as contraband of war when carried to his
enemy by a neutral, nor any universally received
principle on which the contraband character of a par-
ticular article may be determined, and even between
enemies the progress of humanity is continually de-
manding some further restriction of the license of war.
Hence have arisen many of the complaints of violating
international law made by neutrals against belligerents
and by belligerents against one another, but it is more
correct to say that international law is an imperfect
body of rules than that, so far as it is perfect, it is not
obeyed. The want of international organisation chiefly
makes itself felt, so far as concerns international rules,
in the imperfection of the power to define and develop
them. But that is a defect from which the law of the
land is not always exempt in countries which have
attained some considerable degree of advancement.
Take for instance the laws of England in the period of
Glanville and Bracton, say the reigns from Henry the
Second to Henry the Third, when old local customs,
new feudal principles and habits of action, and a good
deal of Roman law, then lately made known in this
country, were being fused together into our common
law, and that by the judges, to whom but little express
legislative help was given before Edward the First.
| THE SOCIETY OF STATES COMPARED. 9

 

While the process was going on, uncertainty reigned
over as large a part of the law of England as the part
of international law over which it now reigns. And if
we add the private violence, which then exceeded in
frequency and impunity the public violence of European
states in the nineteenth century, it may safely be said
that international law is now not less certain and better
obeyed than was the law of England till the process
referred to was fairly complete.

A Special point of Contact between International and
National Law: Private International Law.

Again, the comparison between international law
and state law or the law of the land would be inade-
quate, if we left out of account that to some extent they
have to protect the same interests and are therefore
concerned with the same topics. It is one of the
undoubted functions of a state to secure private rights
over things within its territory, or disputed between
persons who, through being established within its terri-
tory, are habitually amenable to its laws. But the
performance of this function often involves the conside-
ration of private rights over things situate in foreign
countries, or arising from transactions which took place
in foreign countries; and often disputes have to be
settled between parties one or both of whom are absent
from the territory or only casually present in it, and
such absence or casual presence of a party is again
varied by his being politically a subject of the state in
question or a foreigner. Hence arises the necessity of
determining, at least to some extent, the limits of a
state’s jurisdiction and of the application of its laws in
private matters. The science of those limits is called
private international law or international private law.
10 INTERNATIONAL LAW. [cHap.

 

It is true that the international society leaves to the
states which are its members considerable latitude with
regard to that science, but not an unlimited latitude.
A state might depart so widely from any accredited
principles, in its claim to exercise jurisdiction or apply
its laws, that a foreigner who suffered by such departure
would be considered to have suffered an international
wrong and his state would resent it. Therefore state
rules affecting the interests of individuals are in some
degree concerned with international principles, and a
part of the body of law which regulates those interests
is common ground to a state and to the society of
states,

Another Special point of Contact between International
and National Law: Territory and Property:
Natural Law, or the Law of Nature as a Jural
conception.

There is still another point of contact between na-
tional and international law, in that certain international
rules dealing exclusively with public interests have been
borrowed from private law. This occurred for two
reasons, which it is necessary to mention here for the
sake of completeness in the subject now occupying us,
but which will have to be more fully treated hereafter.
First, the right of a state in its territory bears a great
resemblance to that of property, and the resemblance
was even closer in the sixteenth and seventeenth cen-
turies, when the doctrines of international law were
assuming shape, because the feudal confusion between
government and property, and between a state and its
sovereign, had not then been wholly got rid of. Hence
many rules of property law, which of course were sought
in that of Rome, were taken over as international rules
fa INTERNATIONAL AND NATIONAL LAW. II

 

applicable to territory. Secondly, it was in the age
when international law was being formed that a theory,
by no means confined to that age, attained its fullest
development and currency. I mean the theory of a
state of nature in which men once lived or might be
supposed to have lived, for it is difficult to say how far
it was believed in as an historical truth, and of a natural
law or law of nature proper to that state. The term so
used bore a sense quite different from that of the laws
of nature in modern science, which we have already con-
sidered, for the conception was a jural one, however
ill founded. The theory went on to represent nations
as individuals who, from their not having any common
political superior, were in the same mutual relations as
men in the state of nature, and who were consequently
bound by this natural law. But the Roman jurists had
also speculated on the same natural law, and had iden-
tified with it much of what was their own law as
embodied by Justinian in its final shape. And thus a
door was opened for the introduction into international
law, under the name of the law of nature, of no small
part of the private law of Rome on obligation as well
as on property.

Austin’s limitation of the term “ Law.”

At this point it becomes necessary to mention that
John Austin confined the term “law” to the commands
issued by a sovereign authority to persons in general
subjection to it, and therefore denied its application to
the rules prevailing between states which have no
political superior. We shall probably feel less surprise
that the revolt against that nomenclature has now
become so general than that a writer of such great
ability should have adopted it, and that it should have
12 INTERNATIONAL LAW. [cHap.

 

reigned so long in the legal literature of England.
Without laying stress, in a question of definition, on
the links which bind international to national law
through its dealing with the same topics or borrowing
its rules, it seems strange that a distinction can have
been missed which transcends political boundaries and
runs through every kind of human society, the dis-
tinction between rules which the conscience of man
allows and often even requires him to enforce, and the
claims, commonly called moral ones, which he asserts
no such right of making good. It is possible that the
distinction was not missed, but that its importance was
underrated in consequence of some view about the
source of the conscientious obligation which may rest on
man to obey a rule. Undoubtedly the question about
the authority of law may be asked in that sense, and it
may not receive exactly the same answer in the case of
international asin that of national law. Since a loosely
organised society can give less protection than a highly
organised one, and its rules are not ascertainable with
equal precision, it may have less claim to the obedience
of its members. But the obligation of law on the
conscience is a question of ethical philosophy different
from that of the objective existence of law in a society,
and lying deeper. No one will contend that the obli-
gation to obey the law of the land is absolute. There
have been both Christian martyrs and political martyrs
whose resistance to it was praiseworthy. But that
circumstance does not affect the classification of insti-
tutions or facts, and it is with law as an institution or a
fact that the legal student has to deal. Finding that
in all societies the right to enforce rules is asserted and
exercised, for his purpose securus judicat orbis terra-
rum, and he need not hesitate to give the name of
”

1.] | AUSTIN’S LIMITATION OF THE TERM “LAW. 13

 

international law to the rules of a society as necessary
to human existence as the state itself.

The only alternative to doing so would be to
describe those rules as international morality. But
that terminology would obscure the fact that the rules
in question do not exhaust the ethical duties of
states, that in the forum of conscience rules which it is
proper for his fellow man to enforce can no more
measure the whole duty of man when he is aggregated
into nations than when he acts as a private person in
his own country, and that this is recognised in the
intercourse of states by their from time to time advanc-
ing claims which they do not feel justified in supporting
with the last degree of pressure, though the growth of
opinion sometimes ripens them at a later date into
legal ones. Austin indeed, proposing the term “‘posi-
tive international morality” as the substitute for ‘‘inter-
national law,” recognised by the word “positive” some
distinction among the mutual claims of states, though
not connecting it clearly, if at all, with the general
conviction and exercise of the right of enforcement.
But unless it be recognised that the distinction rests on
that basis there is danger on the one hand of checking
the progress of mankind by depreciating the less
ripened claims, and on the other hand of putting claims
founded only in sectional or individual interests on a
par with those which express the general needs of the
international society. The late Professor Mountague
Bernard drew attention to the latter of these dangers
when he said that “the fallacy suggested by the phrase
‘international morality’ is a more practically mis-
chievous one than the fallacy suggested by the phrase
‘international law,’ because the temptation to over-
strain legal analogies and clothe mere opinions indis-
14 INTERNATIONAL LAW. [ CHAP.

 

criminately in the robe of law is less dangerous than
the contrary tendency to degrade fixed rules into mere
opinions.” It is submitted that both fallacies may be
avoided if we decline to treat the law of the land as the
only proper kind of jural law, for then, while keeping
law distinct from morality, we shall not encourage an
undue attribution to international law of the characters
only appropriate to the law of the land.

In the abstract science of geometry the groups,
from the highest to the lowest, are equally real or
equally unreal. The rectilinear figure, the triangle
and the isosceles triangle are equally unreal in the
sense that no objects occur possessing those exact
forms, and equally real in the sense that their contem-
plation by the sentient mind is inevitable. Each
therefore is defined in the same way, by enumerat-
ing the characters contemplated in it. But natural
history deals only with external facts, and wherever
these furnish for the determination of genera only such
a balance of resemblances as leaves it disputable to
what genus a certain species shall be referred, no good
end is served by trying to establish the genus on an
enumeration of arbitrary characters. Jural law, as a
product of human action, is the subject of a natural
science. The law that any state has jurisdiction over
a pirate, and the law which punishes a murderer with
death or imprisonment, are individuals. They fall at
once, as natural individuals do, into their natural
species, international and national law respectively.
Between these species it is submitted that enough
resemblance exists to justify comprising them in one
genus by the common name of law. But to preclude
the enquiry into resemblance by laying down a prior7

1 Four Lectures on Subjects connected with Diplomacy, p. 171.
i, | THE MORAL LAW. 15

 

that law must be the command of a political superior is
to import into a natural science the mode of defining
proper to an abstract one,

The Moral Law.

Besides the jural laws which we have been con-
sidering, and the laws of nature in the sense of modern
science at which we have glanced, “the moral law” is a
term often used to express the obligations which are in-
cumbent on men in the forum of conscience. As rules
for human conduct, perpetually violated, those obligations
can have no connection but that of metaphor with the
laws of nature in the sense of modern science, but they
have so much analogy with jural laws that the question
arises whether they do not form with these last a real
class of the highest or most comprehensive kind, to the
whole of which the term “law” is applied with an
identical meaning. In order to answer that question
in the affirmative the notion of human enforcement,
which accompanies all jural laws and makes by its
presence the very distinction between them and rules
of only moral obligation, would have to be excluded
from the meaning of law in the largest extension which
it can receive without going into metaphor. But the
notion of enforcement by superior determination might
remain, since in an enlightened conscience the test of
a duty is its consonance with a moral order not to be
violated without evil consequences, and such a moral
order, with the consequential penalties for its breach,
may be reverently regarded as imposed by a superior
power. Here at last, not by arbitrary definition but
by following the train of observable resemblances, we
arrive at the final meaning of law.
16 INTERNATIONAL LAW, [CHAP. 1.

 

Rights and Wrongs.

Along with law there goes the notion of a right,
that is, of a claim against the person who has violated
the law to our disadvantage; and he is said to have
done us a wrong, which our right serves to redress.
The right and the wrong are jural or moral ones
according as the law which has been violated is a jural
or a moral one, but in popular language a jural right is
called a legal one, so that that language is guilty of
the inconsistency of opposing a legal right to a moral
one at the same time that it recognises a moral law.

There is no chronological order of priority between
society, law, and rights and wrongs. They must have
arisen together in the earliest times. No human
society can have existed a day without its law, and the
breach of no law can be unaccompanied by the feelings
of a wrong and a right. The maxim wz soczetas 162
jus est must have been as true always as now, and in
every age its truth is equal in both senses of jus:
‘‘where there is a society there is law” and “where
there is a society there are rights.” But the logical
order is that which we have followed. Rights and
wrongs presuppose laws, and laws presuppose society.
Even the moral law is not adapted to man in isolation.
CHAPTER II.

THEORY BEARING ON INTERNATIONAL LAW DOWN TO
THE RENAISSANCE.

Greece.

Ir is in the literature of Rome that we meet with
the first serious reflection on international relations,
Active as was the Greek mind in most directions it
never busied itself with law, and when the law of a city
received little attention except as a branch of politics
it could not be expected that the law which was possible
between cities should be made a subject of philosophical
treatment. The Amphictyonic oath imposed the obli-
gation not to destroy a city of the league or cut off its
water supply, and among “the lawful customs of the
Hellenes,” ‘‘the observances to which Hellenes have a
mutual claim’,” we find mentioned the prohibition of
poisoned arrows, the duty of releasing prisoners of war
for ransom, and that of offering to submit disputes to
arbitration before resorting to war. How small was
the practical influence of these oaths and maxims the
reader of Thucydides knows from the sad stories of
Platzea and Melos, but at their best they aimed at little
more than mitigating or preventing the horrors of war,
they scarcely disclose any recognition of a justice which

1 ca rev “EAAnvev vouipa, Ta mpds Tous "EAAnvas Sikata.

Ww. 2
18 INTERNATIONAL LAW. [ CHAP.

 

should govern all international relations, their root
seems to have been feeling and not reason. Therefore
they were not observed, and even the feeling stopped
at the limits of Greece. ‘With other races, with bar-
barians, all Greeks are eternally at war,” said the
Macedonian envoys at the AZtolian council’.

Rome: Jus Gentium.

To teach law to the world was the especial mission
of the Romans. Accordingly they believed that peace
and not war was the normal relation between them and
other nations, and that in their conduct towards other
nations there was a path of justice to be followed.
They had a college of feczales, whose duty it was to see
that at least the formal requisites of fair and hallowed
dealing with foreign sovereigns and communities were
observed, and one of whom solemnly claimed redress
as a preliminary to a declaration of war on its refusal.
And it is from the Roman lawyers that the world
inherits the name and the conception of jus gentium,
the original import of which must be explained before
we can venture to translate it by the modern phrase,
“the law of nations.”

“Tf any one,” says Pomponius, “assaults an ambas-
sador of the enemy, it is considered to be a breach of
the jus genttum because ambassadors are held to be
sacred. And therefore, in a case where ambassadors
were at Rome at the time when war was declared
against their nation, it was determined that they re-
mained free in accordance with the jus gentium?.” But
for their character as ambassadors they might have

1 Cum alienigenis, cum barbaris, zternum omnibus Grecis bellum
est: Livy, xxxi, 29.
® Pomponius, lib. xxxvii ad Quintum Mucium, in Dig. 50, 7, 17.
II. | ROME: JUS GENTIUM. 19

 

been enslaved as enemies. Disregard however this trait
of barbarism, and the ideas of Pomponius are quite
those we are accustomed to in the modern world. He
recognises the sanctity of diplomatic intercourse, which
is clearly a matter of public law between states, and he
refers it to the yas gentium. Why should we hesitate
to translate that phrase by “the law of nations”? One
reason is that, with us, ‘the law of nations” has come
to mean exclusively the law prevailing between states,
or international law, while the Roman jurists included
more in their 7s gentizwm. Another reason is that, to
many modern minds, ‘‘the law of nations” is a law
which rests on the consent of nations or states as such,
while the Roman jurists regarded their jus gentium as
resting on the consent of mankind, of the whole body
of men as thinking and feeling individuals distributed
among the nations. Let us see how this results from
the employment of the phrase on other occasions.

The courts of law at Rome had to determine litiga-
tion between foreigners, of whom the influx was large,
and between foreigners and Romans. They could not
apply the law of their own city for that purpose,
because the law of a city was regarded in the ancient
world as the peculiar inheritance of its citizens, not
lightly to be communicated to others, and because it
would not have been just to apply the law of Rome to
transactions which must often have been entered into
without reference to it. Such a state of things must
also have arisen at Athens or at any other great
political and commercial centre, but the Roman genius
for law could not bear to meet it unsystematically by
trying to do the best in each case as it arose. It
demanded rules, and they were reached through the
display of another Roman tendency, that of resorting

2—2
20 INTERNATIONAL LAW. [ cHAP.

 

to observation rather than to reasoning a przorz, It
was noticed that in every institution, such as marriage
or contract, there was a kernel of substantial import-
ance in which the laws of all nations agreed, and a
husk of forms in which they differed. Accordingly,
where Roman law could not be applied, the husk was
stripped off and the kernel was deemed to be sufficient.
Thus a Roman stipulation had to be made by the
words dart spondes? spondeo ; “do you undertake that
such or such a thing shall be given?” “I undertake.”
But the pretor peregrinus, the judge whose business it
was to administer justice where foreigners were con-
cerned, held that by or with them a contract had been
sufficiently entered into by the words dadzs? dabo;
“will you give?” “I will give”; or by any other words
that expressed the intention of incurring an obligation’.
In doing this he was said to administer the jus gentzum,
but the law which he applied was not one existing
between nations or indeed any public law, nor as
private law was the bare kernel which he applied the
law of any nation, nor did it derive its force from the
consent of any nation as such, except of course such
consent of Rome as was involved in its application
by a Roman official. It was a law embodying the
elements which were proved, by comparing the laws of
different nations, to have the approval of men to
whatever nations they belonged. Hence the classical
jurists give, as equivalents for jus gentium, “the com-
mon law of all men” (commune omntum hominum jus),
“that which is equally observed among all peoples”
(cd quod apud omnes populos pereque custoditur), “the
law which all nations use” (jus gentium, guast quo jure
omnes gentes utuntur)’. And in all these expressions

1 Gaius, 3, 93. 2 Gaius, 1, 1; Just. Inst. 1, 2, 1.
TE: | ROME: JUS GENTIUM. 21

 

we shall more accurately seize the sense of the original
if we remember that 7ws included the principles of legal
right as well as the rules of law, although, as the
English language possesses no one word comprising
both, the translation must necessarily be inadequate.

Having thus arrived at the true meaning of jus
gentium so far as concerns private law, we perceive
that its meaning in public law was the same. When
Pomponius relates the determination (vesponswm) that
ambassadors were sacred by the jus gentium, he means,
and the authority which he quotes meant, that they
were sacred by the universally recognised principles
of legal right. They were sacred because, in matters
concerning nations as well as in those concerning
private persons, principles which commended them-
selves to the conscience of all men were to be observed.
The principles were plain enough in the particular
instance. Ambassadors are necessary to intercourse
between nations, and they had entered Rome in reli-
ance on the public faith. But what put the stamp on
those principles was the universality of their recognition
by reflecting beings. This it was that made ambas-
sadors sacred by the jus gentzum. No special depart-
ment of law in force between nations was appealed to,
nor was the consent of any nation as such implied.
If Pomponius had been told that some strange people
claimed to enslave Roman ambassadors, or objected to
the Roman preetor’s holding its members bound by
stipulations not couched in a prescribed form of words,
he would doubtless have replied in each case that the
general judgment of mankind was to be followed, and
would have felt in each case that his reply rested on
the same basis.
22 INTERNATIONAL LAW. [ CHAP.

 

Rome: Jus Naturale.

The Roman appeal to the general judgment of
men, founded on observation of their wide agreement,
was reinforced by Greek philosophy. The Stoics,
whose system was the most accepted at Rome, taught
that nature recommended certain principles of conduct,
and of justice as a part of conduct. Principles so
recommended were necessarily independent of state
boundaries, and harmonised in their liberality with
those which analytical observation detected as under-
lying the variety of state laws. The classical jurists
therefore readily identified the natural law which the
Stoic philosophy suggested—jus naturale, the jural as
distinguished from the scientific laws of nature—with
the jus gentium, which in the spirit of that identifi-
cation came to be applied between Roman citizens as
well as where foreigners were concerned. Gaius uses
the former term as equivalent to the latter when he
contrasts delivery, as a mode of transferring property
naturalt gure, with mancipation and other modes of
transfer existing by the peculiar law of Roman citizens,
jus proprium civium Romanorum, and he declares in
general terms that the yus gentium is “what natural
reason establishes among all men,” a declaration which
Justinian adopted from him’, One jurist however of the
great age, Ulpian, noticing that some legal institutions
are based on natural facts common to men with other
animals, carried his love of subtlety so far as to found
on that circumstance a distinction between jus naturale
and jus gentzum. He defined the former as ‘that which
nature has taught all animals, and from which come the
union of male and female, called by us marriage, and the

1 Gaius, 2,65; 1,1. Just. Inst. 1, 2, 1.
11. | ISIDORE OF SEVILLE. 23

 

1”

procreation and education of children’.” In an age less
philosophical even than that of Ulpian Justinian
adopted this definition along with what he took from
Gaius, but it must be condemned. It favours the
notion that statements of fact about natural habits,
which so far as they are true are laws of nature in the
scientific sense, can be directly transmuted into jural or
moral laws, without considering whether the habits in
question need encouragement or check. Or if it be
admitted that the legal institutions based on natural
facts must be moulded by other considerations besides
that of the bare facts, still it is irrelevant to those
other considerations whether the basal facts are com-
mon to all animals or peculiar to man. So far as it is
permissible to speak of a law of nature in a jural or
moral sense, it can only be understood to comprise
those precepts which, all things considered, reason
establishes. And the classical Roman tradition must
be followed in holding that where and so long as there
is a general concurrence of civilised men in favour of
certain precepts as established by reason, there and so
long such precepts must be accepted for practical pur-
poses as those of natural reason, without prejudice to
the efforts of reformers to bring the world over to a
different opinion, as they have often done.

The dissolution of the Roman empire : Isidore of Seville.

But in consequence of the refusal of Ulpian and
Justinian to treat jus xaturale and jus gentium as equi-
valent, or to distinguish them as reason propounded by
philosophers and reason accepted by the world, they

1 Jus naturale est quod natura omnia animatia docuit...... hinc descen-

adit maris atgue femine conjugatio, quam nos matrimonium appellamus,
hinc libzrorum procreatio et educatio: Just. Inst. 1, 2.
24 INTERNATIONAL LAW. [cHap.

 

came to be treated during a long course of ages as
separate departments of law. Perhaps no one again
laid much stress on the difference between fundamental
facts as being common to all animals or peculiar to man,
but other lines of demarcation were found. Isidore
of Seville, writing early in the seventh century of the
Christian era, reserves the term jus gentium for what
we should now describe as international law, so that
here for the first time we find that term fairly trans-
latable by ‘law of nations’.” All the remaining matter
of the old jus gentium, namely the law common to all
nations, 7us commune omnium nattonum, he includes in
jus naturale. ‘Nhen Isidore wrote independent king-
doms had been founded by the northern races within
the ancient limits of the Roman empire, and it was
doubtless owing to that circumstance that the rules
prevailing between states acquired importance enough
to be treated as a separate branch of legal science with
a name of its own. This rapid development of the
scientific classification in accordance with the political
changes suggests the true cause why in a more en-
lightened age, and with such excellent principles to
start from, the Roman jurists never worked out a
system of international law. It is that in their time there
was hardly an international society. The Roman and
Parthian empires divided the world within which inter-
national relations on any thing like an equal footing

1 Isidore also has a jus mlitare, among the subjects of which he
mentions dell inferendi solemnitas and federis faciendi nexus. But by
this seems to be intended only as much as a military commander need
know about those subjects, for della, federa and paces are enumerated by
him among the subjects of jus gentzum. Etymologiarum libri xx, l. 5,
c. 4 to 7; quoted by Nys, Le Droit de la Guerre et les Précurseurs de
Grotius, p. 12. Isidore died in 636, and is said to have been engaged on
the Etymologia at the time of his death.
11. | THE RENAISSANCE: SUAREZ, 25

 

were possible. But the society which is to give birth
to law must contain a sufficient number of members for
the questions which arise among them to be viewed ina
general light. Between two or three individuals par-
ticular interests determine and general rules do not arise.
For the rest, the earliest enumeration of the subjects of
the law of nations is interesting enough to be quoted,
though not of any scientific importance. /us gentium,
Isidore says, ‘‘is the occupation of territory, the build-
ing and fortification of cities and castles, wars, captivities,
enslavements, the recovery of rights by postliminy,
treaties of peace and others, truces, the scruple which
protects ambassadors from violence, prohibitions of
marriage between persons of different nationality *.”
The first and the last items in the list vividly reflect
the land-hunger of the northern invaders, and the
jealous separations which they had substituted for the
unity of the Roman peace.

The Renatssance: Suarez.

The definitions of Isidore of Seville were copied in
the Decretal of Gratian and generally followed during
the middle ages’, but the Renaissance writers, returning
to classical authority, restored to jus gentium a larger
meaning than international law, though they did not
in general reassert its equivalence to the 7us naturale.
On the one hand the enlightenment of the conscience
by Christianity, on the other hand the experience of
centuries of practical barbarism, had made it evident to
the best thinkers that general consent tolerated and

1 Jus gentium est sedium occupatio, edificatio, munitio, bella, captivi-
tates, servitutes, postliminia, federa, paces, inducia, legatorum non
violandorum vreligio, connubia inter alienigenas prohibita. Isidore of

Seville, u. s.
2 Nys, u.s., p. 13.
26 INTERNATIONAL LAW. [cuap.

 

even approved of much which could not be fairly
charged on nature in any sense in which that term
implied reason. Hence jus naturale and jus gentium
came to be currently distinguished, the former as those
rules whether of public or of private law of which the
necessity could be seen, the latter as those rules whether
of public or of private law of which the necessity could
not be seen, and which were to some extent though by
no means altogether reprehensible. This classification,
in its bearing on the mutual relations of states, is
admirably given in a passage of Suarez which it is well
worth while to quote at length.

“The human race, however divided into various
peoples and kingdoms, has always not only its unity as a
species but also acertain moral and quasi-political unity,
pointed out by the natural precept of mutual love and
pity which extends to all,even to foreigners of any nation.
Wherefore although every perfect state, whether a
republic or a kingdom, is in itself a perfect community
composed of its own members, still each such state,
viewed in relation to the human race, is in some measure
a member of that universal unity. For those commu-
nities are never singly so self-sufficing but that they
stand in need of some mutual aid society and com-
munion, sometimes for the improvement of their con -
dition and their greater commodity, but sometimes
also for their moral necessity and need, as appears by
experience. For that reason they are in need of some
law by which they may be directed and rightly ordered
in that kind of communion and society. And although
this is to a great extent supplied by natural reason, yet
it is not so supplied sufficiently and immediately for
all purposes, and therefore it has been possible for
particular laws to be introduced by the practice (sz)
TE | THE RENAISSANCE: SUAREZ. 27

 

of those same nations. For just as custom (consuetudo)
introduces law in a state or province, so it was possible
for laws to be introduced in the whole human race by
the habitual conduct (#orzbus) of nations. And that
all the more because the points which belong to this
law are few and approach very nearly to natural law,
and being easily deduced from it are useful and agree-
able to nature, so that although this law cannot be
plainly deduced as being altogether necessary in itself
to laudable conduct (ad honestatem morum), still it is
very suitable to nature and such as all may accept for
its own sake*.”

In this passage Suarez, dealing with the rightful
foundation of international law, does not notice the
fact, to which he was certainly not blind, that custom
had introduced bad rules as well as good ones. Also
his reference to the human race as the source of binding
international custom is too large, for no international
society has ever been of that extent, even if we suppose
only the civilised part of mankind tobe intended. This
was not long afterwards pointed out by Grotius who,
after describing jus gentium as that law which has
received its obligatory force from the will of all
or of many nations, proceeds—‘“] have added ‘many’
because scarcely any law except the natural law, which
itself is often called jus gentzum, is found to be common
to all nations*®.” Already Ayala had spoken of “ laud-
able and ancient customs” as having “ been introduced
between Christians®.” But Suarez has put on record

1 Tractatus de Legibus et Deo Legislatore, 2, 19,9; quoted by Nys,
u.s.,p. II. This treatise passed the censure in 1611 and was published
at Coimbra in 1612.

2 De Jure Belli ac Pacis; 1, 1, 14.

3 De Jure et Officits Bellicis et Disciplina Militari bri tress 1.1, ¢. 5,
no. 19. :
28 INTERNATIONAL LAW. [ CHAP.

 

with a master’s hand the existence of a necessary human
society transcending the boundaries of states, the in-
dispensableness of rules for that society, the insufficiency
of reason to provide with demonstrative force all the
rules required, and the right of human society to supply
the deficiency by custom enforced as law, such custom
being suitable to nature.

A complete theory of international law, as of every
other subject of human activity, must include both a
statical and a dynamical branch, a branch dealing with
the subject in a state of equilibrium and one dealing
with it in a state of movement or progress. When
reason and custom were recognised as the two sources
of international law, the statical branch of that science
had been placed on the footing on which alone it
can stand. At the same time, since reason is fallible
and customs change, the dynamical branch existed
in germ. But the men of the Renaissance scarcely
perceived this, because the boundless intellectual
confidence of that spring time led them to regard
the dictates of natural law as capable of clear and
exhaustive enumeration, and because the material
conditions on which custom so largely depends had
been little altered during many ages. We however
have learnt that the term “natural law,” as then
employed, was little more than the expression of a
sentiment so strong that for the time it seemed to be a
pledge of its own perpetuity. The possibility of change
in the law of nations has been proved by experience.
Many of its rules are now quite different from what
they were two or three centuries ago. That the inter-
national society possesses no legislature, no organisation
for declaring a change, puts great obstacles in the way
of making and ascertaining one, and that difficulty is
i. THE RENAISSANCE: SUAREZ. 29

 

increased by the complicated interests which attend a
high state of civilisation. But mere difficulty cannot
stop a natural process, and the development of the
social relations of man is a natural process. Every
international rule was in its establishment a change, if
not from a preceding rule at least from the absence of
rule, and the causes which established international
rules and justified them are in eternal operation.
CHAPTER. JEL,

AYALA: GENTILIS: GROTIUS.

Ayala.

Tue end of the sixteenth and the beginning of the
seventeenth centuries saw the appearance of three
works on the laws of war: Balthazar Ayala’s De /ure
et Offictts Bellicts et Disciplina Militari libri tres, the
De Jure Belli libri tres of Albericus Gentilis, and the
famous De Jure Belli ac Pacis of Hugo Grotius. It
is not surprising that the part relating to war should
have been made a distinct branch of study before any
other part of international law. Even now war is by
far the most striking fact in international relations,
though the whole tenour of those relations has settled
us in a point of view from which war seems natural.
States, and not any sovereign or other persons, stand
prominently out as the parties to international discus-
sions. Those discussions generally relate to topics and
are carried on by means of arguments very different
from the topics which occur and the arguments which
are used in private matters, and we are prepared to see
them decided by methods unknown in private litiga-
tion, and in which the respective forces of the parties
have free play. But as long as the feudal system pre-
vailed, with its confusion between the notions of
CHAP. III. | AVALA. 31

 

property and government, very many of the disputes
which we should now call international were disputes
between rulers or cities standing towards one another
in the personal relation of lord and vassal or having
the personal relation of vassals to a common lord, and
claiming territory by virtue of the same rules of law by
virtue of which smaller persons claimed a piece of
ground before a judge. Vague notions of a supremacy
in the pope, or even in the emperor beyond the acknow-
ledged limits of the Holy Roman Empire, on which last
however too much stress must not be laid, also tended,
so far as they had any influence, to keep the quarrels
of rulers and cities on a level with those of private
individuals ; and the arguments used in them, where
feudal principles were not concerned, were mostly
derived from Roman private law, rather because there
had been little reflection on the difference of the cases
than from the recognition of any bond of connec-
tion between them as different. On the whole, when
we read the international controversies of the middle
ages and the time of the Renaissance, we are struck by
the fact that the disputants move in a sphere of private
law, not as extending that sphere by analogy, but
because they do not perceive that their matter carries
them into a higher sphere. When such a controversy
ended in war, and in war carried on with a savagery
but little limited either in theory or in practice, the
conclusion was felt to be more disparate from the
premises than it is now easy to understand. A transi-
tion was suddenly made.from a region of law less open
to question than much of international law would now
be asserted to be, to a mode of decision unknown to
that region of law and stained by inhuman license.
Naturally therefore the first topic of international law
32 INTERNATIONAL LAW. [ CHAP.

 

which forced itself on the attention of thinkers was
what rational account could be given of war, how it
might be distinguished from the unlicensed violence of
private persons towards one another, whether any
principles of right could flourish on such a soil, to what
extent principles of right, if applicable at all, might
curb the passions which war seemed to let loose.

The first attempt to give a complete answer to these
questions was made by Ayala, whose work was pub-
lished at Douai in 1582. It was dedicated from the
camp before Tournay, 31st October, 1581, to the prince
of Parma, in whose army the author was supremus
juridicus, judge advocate. The three books into which
it is divided have no separate titles, but correspond to
the three parts of the general title, de jure bellico, de
officits bellicts, and de adtsceplina militarz. In the
preface Ayala declares his intention of combating the
common opinion that war is incompatible with law, and
that to seek to reduce its practice to a rule of justice is
as though we should seek reason in madness. He
must be given great credit for this design, though he
pursues it without much philosophy or method. He
adopts the common view of his time, that of a natural
law to which the jus gentzum was added by general
consent; but he fluctuates within a few lines, and
without perceiving that it is a fluctuation, between
asserting on the one hand that all men enjoyed liberty
by the natural law and that the jus gentium has
abolished that enjoyment by introducing slavery, and
on the other hand that the 7us gentium is consistent
with the natural law because the latter had not pro-
hibited slavery but only not established it. We need
not follow him into detail. The most important point

1L. 1, c. 5, no. 16.
11. | GENTILIS. 33

 

to remark is that while making the legal effects of war
depend on its being justum bellum, he disconnects the
epithet from the justice of the cause and makes it
depend on the war being carried on by princes having
no superior, so that it may be justum bellum on both
sides in the sense of possessing plenztudinem quandam,
a certain satisfaction of legal requisites, as in the phrases
juste nuptie, gusta etas and others. It is clear that,
since the justice of a war is necessarily in dispute, no
laws of war could be established on any other basis
than this; but Ayala puts it on the ground that it is
not fitting, 0 conventt, to discuss the equity of what
is done by princes who have no superior’.

Gentzlts.

Albericus Gentilis, a native of San Ginesio in the
March of Ancona and a doctor in the civil law of the
university of Perugia, left Italy in consequence of his
having adopted Protestant doctrines, and in 1588, the
year of the Spanish Armada, was Regius professor of
the civil law at Oxford. Already, in 1585, he had
published a book De Legationzbus. Ina letter which
Professor Holland has printed in the preface to his
excellent edition of the De /ure Belli hori tres
(1877) we find Gentilis inviting a friend to the Oxford
Commencement of July 1588, when he was to discourse
‘on the laws of war, the causes of making it, the mode
of carrying it on, and the rights of conquerors and
conquered” ; and disputations were to be held under
his presidency on the questions

“Whether a war can be just on both sides; whether the laws of
diplomatic intercourse apply to civil wars; and whether a subject who
differs in religion from his prince ought to bear arms against a prince of

1L. 1, ¢. 2, nos. 33—35.
w. 3
34 INTERNATIONAL LAW. [cHapP.

 

his own religion—that is,” as Gentilis adds, “ whether a papist is right in
serving his prince in arms against the pope.”

A De Jure Belli commentato prima, published
about October of the same year, and a second and
third published in 1589, doubtless gave to the world
the matter which had been thus propounded at Oxford;
and the De Jure Bellt libri tres, in which these treatises
are enlarged Professor Holland says to five times their
extent, appeared in 1598. But the list of subjects
contained in the letter of ten years before expresses
with considerable accuracy the scope of the book even
in its final shape. The opportuneness of those subjects
to England threatened by the Armada, when the con-
duct that would be pursued by the English Catholics
was so important a question, is obvious. We cannot
doubt that it was because of such opportuneness that
Gentilis rushed into print without giving himself the
time to work out his subject with the fulness he after-
wards gave it, but the turn of his mind must bear the
responsibility for the fact that, even in 1598, his first
chapter presents his principles in a manner which I
once summed up as follows, and I think without parody.

“The proper foundation to build on is natural reason, the consent of
all nations (the terms are treated as convertible). A// nations? Well,
no; that is the way Donellus presses definitions, but do not let him
mislead you, for the consequence is that he has to give the definitions up.
And the Roman lawyers did know nearly all the world, and the unknown
must be judged of by the known. Besides, if all do not agree, the major
part must govern, just as with individuals in a state (remember that
Gentilis came from an Italian city). And then, too, natural reason is
plain in itself. It is enough to say, ‘Nature teaches us,’ for you know
there are things that are only made darker by trying to prove them. We
shall quote great authors, as in other arts and sciences, and the doings
of great and good men, and Roman law, and the Bible. Go to the mathe-
maticians for proofs: the nature of my subject only admits of persuasion.
‘Come then; there is no lack of matter to ground our decisions upon, so

let us begin1.’”
1 The Academy, 5th January, 1878, p. 2.
II. | GENTILIS. 35

 

Indeed the superiority of Gentilis to his predecessor
lies in the completeness with which he ultimately worked
out his subject, and in his conception of its unity and
limits, free from the connection with tactics and military
administration in which Ayala had presented it. His
inferiority in principles is strikingly illustrated by his
mode of dealing with the question whether a war can
be justum bellum on both sides, so as to produce its
legal effects on both sides, as in changing the property
of things captured. He misses the true solution given
by Ayala, and labours to reconcile the correct answer,
which he cannot help seeing to be necessary, with the
assumption that legal effects can only flow from the
justice of the cause, and that this is implied in the phrase
justum bellum. For that purpose he urges that there
is generally a show of justice on each side; that the
mean in which virtue consists is not a point but a space
possessing breadth, within which room may be found
for each, though the one is more just than the other ;
that a man may try his chance if the case is obscure,
and that “when utility conflicts with honour there is
no little obscurity which we ought to follow” ; lastly,
that it will not often happen that the injustice of one
side is evident, and that laws are not to be framed to
suit exceptional cases’. And this he finds satisfactory.

Nor was Gentilis a man from whom any assistance
could be hoped in mitigating the ferocity of war.
Liviano, he says, put a prisoner to death with insult,
because he had been accustomed to call him a beast;
and Liviano was right. It has been very common, he
says, to hang persons who try to introduce supplies
into besieged towns ; and rightly, if they are mercenary
merchants, because they are not helping their country

1L 1c. 6.
32
36 INTERNATIONAL LAW. [ CHAP.

 

but have been led by greed so far as to despise a
power stronger than themselves. Apparently neutral
merchants are intended by mercenaries. Again, Gen-
tilis agrees that it seems very hard to kill hostages for
other men’s faults, but he holds it to be both just and
expedient. Bodin says that the practice of killing
hostages was given up because bad faith is now so
common that it would have to be too often done; but
I, Albericus, say that faith has ceased to be kept since
its breach has ceased to be punished’.

Grotius.

Hugo Grotius was born at Delft, in Holland, in
1583. He took an active part in the political and
religious dissensions of the United Provinces, was
imprisoned on the defeat of the Arminian and re-
publican party, to which he belonged, escaped by the
aid of his wife, and took refuge in France. There he
wrote the De /Jure Belli ac Pacis, which appeared in
1625, dedicated to Lewis XIII. By negotiating the
alliance between France and Sweden, which decisively
turned the fortune of the Thirty Years’ War against
the emperor and the Catholic cause, he contributed to
the foundation of the new Europe which was con-
secrated by the Peace of Westphalia; but he died in
1645, three years before that peace was concluded.

The Nouvelle Biographie Générale mentions forty-
eight different publications of Grotius, besides his
letters. All are in Latin except ‘“ Proofs of the true
religion,” in Dutch verse, intended to show sailors
how to convert pagans, and an introduction in Dutch

1 The first two passages are in 1. 2, c. 18, and the third in 1. 2, c. 19:
pages 220, 227, 233 of Professor Holland’s edition.
11. | GROTIUS. a7

 

to Dutch law. He begins in boyhood as a poet, soon
writes sacred dramas, and continues to compose
verses and dramas all his life. He translates modern
mathematics and philology and Greek astronomy, the
history of Procopius, the Greek anthology and the
Phoenissz of Euripides. He edits Lucan and Tacitus.
He writes on the antiquities of the American Indians
and of the institutions of Holland; the history of the
Dutch republic; on law, Roman and modern Dutch.
He annotates the Old and New Testaments, and
pours out a flood of political and theological writings,
being greatly occupied late in his life with a scheme
for the reconciliation of the Protestant and Catholic
Churches, as he had been earlier with the evidences of
Christianity and the controversy against the Socinians.
Nor is this enumeration exhaustive, but only one of
his works appears to have been philosophical, and
that not original but a compilation: Pkhzlosophorum
sententie de fato, published posthumously in 1648.
If international law could even otherwise have been
overlooked by a writer with such varied interests, it
was forced on his attention by the hostilities in the
straits of Malacca between the Dutch East India
Company and the Portuguese, and by the scruples of
conscience which led the Mennonites and others in
Holland to refuse their share of the booty. Grotius,
then only in his twenty-second year, vindicated the
Company and its right to the booty in a treatise De
Jure Prede, which contains the germ of his great
work, but was never printed in full till 1868. Four
years indeed after its composition, when Spain was
proposing to Holland terms which included the
abandonment by the republic of the commerce of the
Indies, he published the twelfth chapter of the De
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any one come to have something of his own, his enjoy-

ment of which can be interfered with, and he be thereby

wronged? It is because law has given him something
of his own. But law ought not to be arbitrary.
Whether it proceed from a legislature or from a
society of men establishing a custom among them-
selves, and whether that society be a national or an
international one, law ought to be guided by distribu-
tive justice, which depends on a wise consideration of
all the claims existing in the circumstances. The claim
which any one has to such an exercise of distributive
justice as shall frame the law in his favour is called in
Latin aptitudo. When the law has been so framed,
a legal right or facudtas arises under it by expletive
justice against all who do not respect the claim so
recognised. Until then, and within a state, the claim
ought not in English to be called a right without the
epithet szorad, to indicate that something is wanting to
the power of enforcing it. But outside the state tie,
Grotius held that any one might right himself to the
extent measured by distributive justice operating as
natural law, so that in those circumstances and to that
extent the distinction between legal and moral rights
disappeared for him. The measure of expletive justice
is definite, namely that of the wrong to be redressed.
The measure of distributive justice varies with circum-
stances, and it often happens that an exercise of it
overrides the existing legal right, making a new dis-
tribution between the parties, which in its turn expletive
justice is charged with maintaining. Thus, to take
modern examples, a legislature exercises distributive
and overrides what before was expletive justice when
it enables a tenant to demand a reduction of rent which
he could previously obtain only from the free will of
11. | GROTIUS. 4I

 

his landlord, when it enables a bankrupt debtor to
obtain a discharge from his liabilities or alters the con-
ditions on which he could previously obtain it, and
when it restricts the rights of the lord of a manor over
a common. It is often the moral duty of a private
person to regulate his dealings with others on the
principles of distributive justice, as in the cases of land-
lords creditors and lords of commons. He may go
further and act with charity or generosity. But the
existence of the moral duty is the ground for legislative
interference, where it is not sufficiently performed or
cannot well be so without such interference.

I will now pass rapidly over Grotius’s other distinc-
tions. An enumeration of them is necessary in order
that the reader may form a notion of what a famous
book is like. We meet then with two kinds of law,
that which enforces expletive justice, called by Grotius
jus eqguatorium because it restores a party to a position
equal to that in which he was before he suffered the
wrong, and that which dispenses distributive justice or
at least is supposed to do so, called by Grotius jus
vectorium because by conferring legal rights it governs’.
The latter kind of law may either be that of nature,
which at least outside the state tie is sufficient of itself
to confer rights, or be imposed by some will (zs
voluntarium); but when rights have been conferred it
is natural law that their violation should be redressed,
and so jus eguatorium is a branch of natural law.
Grotius in his mature judgment very properly declines
to consider any part of the latter as being common to
man and animals, though in his youth he had given in
to that view’, but jus voluntartum falls into divine and

1 De Jure Belli ac Pacis, \. 1, c. 1, iti.
2 Compare De Jure Belli ac Pacis,\. 1, c. 1, xi, with De Jure Prede, p. 50.
42 INTERNATIONAL LAW. [ CHAP.

 

human law. Human law is then divided into that of a
state (czvzle) and that of nations (gentium). In his
use of the latter term Grotius so far deviates from the
language of the Roman jurists as to exclude all institu-
tions belonging to state law, though common to many
states’: his jus gentium only comprises institutions
prevailing between states, but as to these he recognises
the will of the society as having the force of obligation,
of course within the limits set by reason’. This jus
gentium he again divides into that which is truly and
entirely law, and that which only produces a certain
effect like that of the primitive law* Of these two
species the former is identical in substance with the
law of nature, the classification only differing according
as nature or the will of a society of states is considered
as the source of its authority; the other rests merely
on the will of that society, and includes laws good and
bad, among others the bad laws of war against which
Grotius fights. We have now reached the fifth stage
of subdivision, and cannot get further in our distinc-
tions about law. But we can start again, and enume-
rate those classes of rights ( facultates) which it is
necessary to distinguish in giving a detailed exposition
of any body of national law‘, and we can distinguish
the permissions in the Mosaic law into full and less than
full (permissio plena and minor plena). Only the full
permissions are to be allowed as proof that the thing
permitted is not contrary to natural law, but the value
of this proof does not seem to be great, for Grotius
immediately admits that it is often necessary to refer to

1 De Jure Belli ac Pacis, \. 2, c. 8, i.

2 Tb., L. 1, ¢. I, xiv. 3 Ib., Pr., 41.

+ Power, property, rights of contract ; private and public rights. Ib.,
l. I, c. I, V, Vi.
iy. | GROTIUS. 43

 

the natural law in order to judge whether a Mosaic
permission is full or less than full, because the divine
words do not mark the distinction’.

The upshot of the foregoing, so far as concerns the
rightfulness of dealings between states, may be thus
simply stated. Certain institutions exist among all
men, or at least among all the inhabitants of our inter-
national world, and are consonant with reason as
applied to the conditions of man’s existence in that
world. They are examples of distributive justice, even
if neither history nor any fair presumption to be made
about prehistoric times enables us to refer their begin-
ning to a conscious exercise of such justice. Among
these are property, with binding contract as its neces-
sary adjunct, the redress by expletive justice of wrongs
done to property and the faith of contracts, and, Grotius
added, the moderate punishment of the wrongdoer’.
All such therefore are parts of natural law. States
give effect to these branches of natural law as between
their members, and are charged with protecting the
natural rights of their members as against outsiders.
But where, as between states, there is no power
supreme over both parties to a difference, each must
and may protect with his own strong hand what he
conscientiously believes to be his natural rights, even
to the extent of inflicting due punishment on the
wrongdoer. The responsibility of such a position is
great, but it cannot be avoided unless, abandoning the
attempt to distinguish natural law, you incur the still
more serious responsibility of accepting customary law
in its entirety, just and unjust, humane and barbarous.
Deeply feeling his responsibility, Grotius, with an

1 De Jure Belli ac Pacts, \. 1, c. 1, xvii.
44 INTERNATIONAL LAW. [ CHAP.

 

erudition and labour rarely equalled, fortified his
declarations of natural law by the testimonies of men
in all ages and countries, but was obliged to acknow-
ledge the difficulty of distinguishing testimony to what
was from testimony to what ought to be. By the side
of natural law Grotius placed a principle which, in his
elaborate classification, fell under the divine branch of
law imposed by some will (jus voluntarium divinum).
It appears in his book under a great variety of names.
Sometimes it is the law of charity, or the love of one’s
neighbour ( proximi caritas) “ especially as enjoined by
the Christian law.” The natural rule is that you may
do to your enemy whatever is necessary to attain the
end of a just war, but this Christian principle forbids
you to do more harm to an enemy than in the judg-
ment of prudence is likely to be amply compensated by
the good expected’. In that form it will be noticed
that it approaches nearly to the greatest happiness
doctrine of Bentham. Elsewhere it is modesty
(pudor), or equity and human kindness (eguztas et
donitas), restraining us from insisting on the pound of
flesh which the law of nature would give us. Again it
is the respect due not merely to what is equitable and
good (eguum et bonum), but to that which is most
equitable and best (eus guod equinus meliusgue est
respectus), or the preference of that which is best
among the things allowed by nature» And sometimes
what the modifying principle enjoins is said to be a
thing which ought to be done on moral grounds (ex
moralt vratione factendum) as opposed to a debt of
justice’. By whatever name the principle be desig-
1 De Jure Belli ac Pacis, \. 3; ¢. 1, iv; c. 11, ii; c. 18, iv.

2 Ib.; 1.33 c. 10,1; c. 11, xvi; c. 12, viii; c. 14, i.
3 Ib.; 1. 2, c. 22, xvi.
11. | GROTIUS. 45

 

nated, the contrast which Grotius makes between it
and the true natural law, the jus strzcte dictum, is
one of the most characteristic points in his teaching.
Although strict natural law was not in his view the
final measure of duty by which a man ought to regulate
his own conduct, it was in his view the measure of the
conduct which a man is entitled to require from others.
We are bound for ourselves both to pay the debts of
justice and to do what morality further demands, yet if
others fail us in the former we may do ourselves right,
and even wage war for punishment as well as for resti-
tution, but a failure in the latter is no just cause of
war. As little, if a state transgresses in war the limits
of hostile pressure which natural law taken in combina-
tion with Christian charity would impose, does Grotius
admit that third parties may properly interfere to
enforce the observance of those limits or to avenge
their non-observance. If Bentham ever noticed this
point in Grotius, it must have surprised him that a
principle so near to his own of greatest happiness was
allowed so little scope in action.

With these general views Grotius set himself to
examine the customary law of war, the current jus
gentium of war. He found that here and there it
might be salutary, as in prohibiting the employment of
poison, between which and the sword natural law knew
no distinction®. Or its greater latitude might be in-
evitable. For example, natural law allowed you to kill
your enemy and capture his property only in a just
war, and even then to capture his property only to the
amount of the damage for which he was liable, with the
addition of a reasonable penalty. But the customary

1 De Jure Belli ac Pacts, \, 2, c. 22, xvi.
2 Ib.; L 3, c. 4, ili. 3 Tb.; 1. 3, ¢. 4, xv.
46 INTERNATIONAL LAW. [ CHAP.

 

law of nations, having no means of determining the
justice of the war or the amount of the fair damages
and penalty, allowed you in all wars to kill your enemy
and capture his property without limit’. In general
however the customary law of war was so savage that
the great labour of Grotius was to establish, by the
side of each license which it granted, some correction
(cemperamentum) which might reduce it to the measure
of the natural law as modified by the principle of love
to one’s neighbour. How moderate were his hopes in
that direction may be seen from the fact that he does
not absolutely prohibit sacking cities, or enslaving
prisoners in countries where slavery exists, or holding
them to ransom where slavery does not exist. He
sometimes seems to feel about, as it were, for a milder
practice than he enjoins*; and doubtless he hoped that
Christian principles would one day govern conduct to a
degree which he did not venture to anticipate in detail.
When we pass beyond the laws of war to other
parts of our subject, we shall find that by Grotius and
thenceforward much of Roman law was adopted into
the substance of international law, consciously, and as
a consequence of the general views entertained. As
Justinian had handed the Roman law down, cleared of
the forms and fictions of earlier ages, it was largely
composed of that jus gentzum which the jurists had
elaborated by a comparison of the laws of different
peoples and which they identified with natural law.
Here then was ready at hand exactly such an embodi-
ment of general consent—consent, not of states as such,
1 De Jure Belli ac Pacis, 1. 3, c. 6, i, i.
2 Ib.; 1. 33 ¢. 12, viii; c. 14, i, ix. ;
3 See ib.; 1. 3, c. 13, iv; where Grotius suggests the poverty of the

subject of an enemy state as a consideration to be entertained on the
question of taking his property.
tit, | GROTIUS. 47

 

but of the enlightened part of mankind—as was looked
for to give an attestation to nature. And the vehicle
which contained it commanded the highest respect.
After its revival in the twelfth century, the close alli-
ance of Roman law with the cause of monarchical
power against ancient liberties and privileges had raised
much opposition to it. But this had passed away as
the political controversies concerned had partly been
decided and partly come to be waged on other grounds,
and little remained to conflict with the prepossession in
its favour which the worship of the Renaissance for
antiquity occasioned. The law of Rome was called
written reason. Thus what it contained on the mutual
relations of private persons, and especially so much of
it as the Romans themselves identified with natural
law, was applied to the mutual relations of states so
far as they had any analogy to those of private persons.
Such an analogy was very obvious between the terri-
torial rights of states and the proprietary rights of
individual citizens, and thus, among other parts, the
Roman law of property passed over almost bodily into
the international law of territory. A result was pro-
duced coincident with that which would have flowed
from the principles soon to be proclaimed by Hobbes
and Pufendorff, that “states, when they are once insti-
tuted, assume the personal qualities of individual men,”
and that therefore the law of nature is identical for
states and for natural individuals’. If Grotius did not
fully make that identification, at least he had not
rejected the notion of patrimonial governments, and,
so far as any government was admitted to be such, the

1 Hobbes De Cive, c. xiv, 4, quoted with approval by Pufendorff De
Jure Nature et Gentium, |. 2, c. 3, § 23.
48 INTERNATIONAL LAW. [ CHAP.

 

state over which it existed was merged for legal pur-
poses in the person of its sovereign.

Thus through the labour of Grotius, crowning those
of the philosophical theologians with Suarez as their
chief and of the philosophical jurists down to Gentilis,
a fairly complete body of international law was pro-
duced at the moment when the international society
for which it was to serve was assuming the form
which a little later was consecrated by the Peace of
Westphalia. The coincidence was not casual. Then
for the first time, through the decay of the Empire
and of the coercive power of the Catholic Church,
it could be seen that the society would be a purely
secular one, and would be composed of such a crowd
of practically independent states that only general
considerations could be applied to their mutual rela-
tions. Then too, as the volume of history was being
finally closed on medieval Europe, the jealousy of
Roman law also finally disappeared. I proceed to
discuss one point in which the theory of international
law, as we find it in Grotius, bears the marks of an
age no later, as in others it bears the marks of an age
no earlier, than that in which it saw the light.

Since that age great changes have taken place in
the substance of international law. Neither the laws
of war as between enemies, nor the laws of war as
affecting the duties and rights of neutrals, nor several
parts of the law for times of peace, are the same now
as then. The process of change has uniformly been
and could only be the conversion of moral claims into
legal rights, taking the distinction between these to be
what we find it in Grotius, namely the distinction
between claims which the general conscience allows
you to enforce and those which it allows you to urge
111. | GROTIUS. 49

 

but not to enforce. Every such change is therefore a
phenomenon of the same kind as the existence of the
law itself. If with Grotius we speak of distributive
justice and natural law, the change is a new application
of distributive justice in the international field, corre-
sponding to a new view entertained of natural law.
If with modern Germans we speak of the idea of right
or of the jural conscience, the change expresses a
further development of that idea or conscience, just as
the old law was an assertion of them so far as they
were at one time developed. Now it certainly seems
that Grotius did not contemplate it as a possibility
that our view of natural law should be progressively
expanded. With the intellectual confidence of the
men of the Renaissance to which I have already re-
ferred, he seems to have regarded natural law, and
therefore the measure of justice between states, as
capable of being settled once for all by an exhaustive
investigation. It would be unfair to believe that he
regarded his own investigation of it as perfect, but his
mental attitude may be inferred from his dealing with
those corrections, temperamenta, of the brutality of war
which it is his chief glory to have preached. He could
hardly have supposed that any reform of the law of
nations would ever press more urgently for adoption
than these, and certainly not that any could come with
a higher authority than that of Christianity which he
claimed for them. Yet he did not plead for their
admission as law, and he prohibited third parties from
interfering in order to restrain the use of unconscientious
methods in exacting a debt of justice. Such a belief
in the finality of the international law of his day, and
so narrow a view of the mutual interest which should

Ww. 4
50 INTERNATIONAL LAW. [ CHAP.

 

unite the members of the international society, would
not have been possible much later.

The amount of regulation which a society requires
will be in proportion to the closeness of contact between
its members and the complication of their mutual deal-
ings. We have been made familiar with the truth that
the growth of society has been a gradual transition
from status to contract, but it is no less true that after
a certain point contract needs regulation and society
passes again under law. An active commerce requires
a system of bankruptcy, sanitary laws become more
necessary as population becomes more crowded, the
pressure of population on the soil has been found to
call for legislative interference between landlord and
tenant. It is well that our sympathy should be on the
side of liberty, that we should be jealous in limiting the
restraints on individual action as narrowly as can be at
all consistent with the welfare of the society. But the
principle that closer intercourse needs more regulation
remains true, though it may be abused. And the same
principle has forced itself into application between
states ever since the great advancement in arts and
commerce, and the system established by the Peace of
Westphalia under the protection of which they have
flourished, has led to such intimate and constant inter-
national relations. If we think of the navigation of
rivers flowing through different territories, the race for
the appropriation of uncivilised regions, the extradition
of criminals, the influence which the acts of neutrals
may have on the fortune of a war, and many other
topics, we shall see that, as population increases and
intercourse extends, new causes of international friction
arise and the friction from old causes is increased.
UII. | GROTIUS. 51

 

The only complete remedy is the improvement of law,
and the necessary condition of the improvement of
law is that each individual shall not wrap himself in
unconcern when a wrong done to another is unredressed
or the moral claim of another is brutally ignored.

4—2
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54 INTERNATIONAL LAW. [ crap.

 

dent state and her feudatories would not be heard of,
while the power of the emperor had sunk so low that
an opposite result seemed probable for his nominal
dominions. But the latter result was thrown back into
doubt by the great accessions of strength which the
Hapsburgs received from marriage with the heiresses
of the Low Countries and Spain, and, when religion
was added to the causes of political strife, the influence
of the emperors in the Catholic part of Germany was
increased by their championship of the church. The
forces on the other side were, however, still stronger.
The Protestant cause was linked to that of the inde-
pendence of the princes and cities. France was
compelled, by the pressure of the Hapsburgs on her
northern eastern and southern frontiers at once, to
assist in Germany the cause of her politics and not
that of her faith ; and the vigour of Sweden, which was
exerted on the same side in the later scenes of the
contest, was of greater weight than the declining energy
of Spain. The struggle could only end in the defeat
and practical nullity of the imperial power, and in the
recognition of the imperial princes and cities as mem-
bers of the future European system.

In the meantime the struggle had powerfully assisted
in creating a new sentiment of unity among the popu-
lations which were to be comprised in that system.
During the middle ages a striking tale might be the
diversion of the moment, wherever its scene was
laid, but a steady interest in European events hardly
extended beyond the merchants whose traffic might be
affected by distant occurrences, and the higher nobility
who acquired cosmopolitan relations by foreign marri-
ages and the intercourse of courts. But during the
hundred and thirty years between the commencement
Iv. | THE PEACE OF WESTPHALIA AND PUFENDORFF. 55

 

of the Reformation and the Peace of Westphalia the
victory of the church would have endangered the
Reformation everywhere, and Protestants and Catho-
lics living under any government mostly sympathised
with their fellow religionists under any other govern-
ment. A general mutual interest in the fortunes of
states arose, widely extended alliances resulted from it,
and men felt with a novel force that a moral tie united
them. That feeling was aided by the intimate rela-
tionship between the literatures of different countries
which sprang from their enjoyment of a common
Renaissance, and from the identity of the problems
which were occupying the minds of all. It was further
aided towards the end of the period by a natural revul-
sion from the horrors with which war had come to be
waged, and the growth of commerce which followed the
discovery of America and of the passage round the
Cape of Good Hope was not without a similar effect.
When the plenipotentiaries at Munster and Osnabruck
signed the Peace of Westphalia in 1648 the ground
had been well prepared for an international society,
such a society had indeed been gradually emerging, and
we must now look at the shape in which it was com-
pleted and consecrated by their work.

First, no questions that had ever before received a
diplomatic settlement had been of such far reaching
import, or had been settled with the concurrence of so
many powers. The questions concerned all Western
Christendom either by their political or by their reli-
gious bearings, and the representatives of nearly all
Western Christendom were assembled to determine
them. The very meeting of such a congress was
not only the first affirmation, but by its scale a striking
affirmation, of the existence of a body of states which
5 6 INTERNATIONAL LAW. [ civaP.

 

their various interests, whether agreeing or clashing,
did not permit to be strangers to one another. Such
a body, the discussions arising between any of which
are matters of general interest to all, has ever since
existed in our portion of the globe, and its limits have
been extended as occasion has arisen. Early in the
eighteenth century Russia entered it as a consequence
of her increased strength and civilisation, and the
necessity arising from her geographical situation led
to Turkey being formally admitted to the European
system by the treaty of Paris in 1856. It is true
that, since 1648 as well as before, two or more of the
powers comprised in that system have often altered
the map of Europe by settling their differences without
others intervening. It is one of the consequences of
the absence of international organisation that the right
of intervention in the general interest is not held to
be accompanied by a corresponding duty, and the
system is therefore a very imperfect protection of the
weak against the strong. But the right of interven-
tion in the general interest has not been denied, and
the proceedings at Vienna in 1814 and 1815, the par-
ticipation of Sardinia in the Crimean war though not
directly concerned, and the congress of Berlin in 1878,
are examples of its exercise.

Secondly, the society of states was definitively
established in 1648 as asecular one. The Protestant
states in Germany were admitted on an equal footing
with the Catholic ones, and the claim of the papacy to
a supreme temporal authority was already obsolete.

Thirdly, the right of the princes and cities com-
prised within the Holy Roman Empire to contract
diplomatic engagements with each other and with
states outside the empire was formally acknowledged,
IV. | THE PEACE OF WESTPHALIA AND PUFENDORFF. 57

 

subject only to the condition that their engagements
should not be prejudicial to the empire or the emperor.
But the imperial diet was so hampered by its constitu-
tion in determining whether such prejudice existed,
and so ill provided with the means of enforcing its
determinations, that the princes and cities thenceforth
acted and were received as unquestioned members of
the European society. They became real states in
the international sense, and if one of them so acted as
to incur the formal hostility of the empire, the practical
case was merely that it had an enemy the more, and
not a formidable one.

Fourthly, the fact that the princes and cities of the
empire were admitted as members of the international
society had its influence on the nature and rules of that
society, which became a crowd of individual members,
many of them petty, instead of being composed of a
few powers all more or less considerable. The situa-
tion was the extreme opposite of that which had
existed when Rome and Parthia confronted one
another, and although the discussion of international
law from genéral points of view might have been
sufficiently secured with a much smaller number of
states, the tendency to base it on abstract principles
was promoted by the inclusion of so many for which
there could be little safety if grounds of principle were
abandoned. To some extent however this tendency
was balanced at first by the circumstance that the
members of the Holy Roman Empire brought with
them into the international society rules which can
hardly otherwise be accounted for. Thus, when
private war was a general evil within most medizval
monarchies, a vassal who did not-oppose the march
of another vassal across his fief to attack a third was
58 INTERNATIONAL LAW. [ CHAP.

 

not deemed to offend against the latter: the assailant
was merely using the public ways of the monarchy.
So when private war, put down elsewhere, became in
Germany public war, it was not there deemed the
duty of a neutral to prevent the passage of belligerent
forces across his territory ; and that rule, opposed as
it was to principle, found its way into international
law and long maintained itself in it’. In no part of
the development of our subject since the Peace of
Westphalia has the influence of principle, in combina-
tion with the natural interest of weak states, been
more visible than in that part which concerns the laws
of neutrality.

Fifthly, the recognitions of the independence of the
United Netherlands and Switzerland, the former of
which had been conceded by Spain a few months
before, put the seal on successful insurrection. Modern
international society was stamped from its origin with
the principle that states alone are regarded in it, not
governments or sovereigns for their own sakes. That
principle indeed has not reigned without opposition.
That it should have been violated in practice is only
what must happen from time to time to every principle
in so loosely constituted a society as that of nations.
But even in the nineteenth century the combination of
absolute powers popularly, though not quite correctly,
known as the Holy Alliance attempted to base inter-
national relations on a contrary principle of legitimacy,
which would have justified working them for the benefit
of established governments. The attempt however
failed, we may hope finally, and we can see that its

1 Grotius teaches the equal grant of passage to each belligerent when
the justice of the war is doubtful between them: De fure Belli ac Pact
1. 3, & 17; § 3.
IV. | THE PEACE OF WESTPHALIA AND PUFENDORFF. 59

 

success would have given rise to widely different kinds
of international society and law from those which in the
long run have existed ever since 1648.

Sixthly, the practice by which each state is perma-
nently represented at the capitals of other states by
resident ambassadors or ministers of inferior rank,
previously an exception, dates as a general one from
the Peace of Westphalia. That practice is an outward
and visible sign of the common interest which is pre-
sumed to bind together even the remotest members of
the European society, and is a useful means for the
interchange of views in due time on all questions that
may affect that interest. If the discussion of such
questions was left to special embassies, their despatch
would often be delayed till passion and accident had
greatly increased the difficulty of an amicable settle-
ment, and the states less directly interested would often
losé the opportunity of making their sentiments heard.

Such from the international point of view did
Western Christendom emerge from the long contest
between Protestant and Catholic, between the kings of
Spain and the Dutch people, and, although this branch
of the contest was not yet finally disposed of, between
the house of France and the house of Austria. There
was now a society, and the maxim wdz soczetas 7bi jus
est vindicated itself. International law was born. There
was, first, a general conviction that, besides the friendly
offices demanded by good neighbourhood or moral
perfection, there were duties for the slighting of which
a nation might take its redress into its own hands:
secondly, there was a general agreement as to where
the rules defining those duties were to be looked for :
thirdly, the international society was sufficiently inti-
mate and large to justify an injured member in expecting
60 INTERNATIONAL LAW. [ CHAP.

 

that his vindication of its rules would meet with some
appreciable support, direct or indirect, as the result of
the general approval. Of these three points, the com-
bination of which amounted to law, the important one
for the lawyer is the second. He can only deal with
rules so far as they are ascertainable. Now general
opinion at the era which we are considering sought the
matter of international rules in two quarters, both of
which were equally recognised in the broad philosophy
of Suarez and in the painstaking system of Grotius.
One was the natural law dictated by reason, about the
contents of which the confident spirit of the men of
that age did not apprehend much doubt, and which
really was much clearer to them than might otherwise
be supposed, because it was generally admitted to
include that large part of Roman law which the classical
jurists had attributed to a natural source. In case of
doubt it was to be proved as Grotius had proved it, by
testimonies culled from writers and statesmen of all
nations, and therefore establishing that kind of consent
which the Roman jurists had relied on for the jus
gentium which they identified with it, a consent of
mankind and not of nations as such. The other
quarter in which international law was looked for was
the jus gentium as that term was then commonly used,
the rules by which the natural law had been supple-
mented through the custom of nations as such, provided
that the rules of this class were at least not repugnant
to natural reason. The authority of reason and of
custom so limited appeared to be an unquestionable
necessity of human intercourse.

The greatest practical difficulty which attended these
views was that, when the custom of nations as such
was purged from those remains of savagery which
Iv. | THE PEACE OF WESTPHALIA AND PUFENDORFF. 61

 

Grotius had taken the lead in denouncing, there was
not much left of it for which a custom could be quoted
coextensive, or nearly so, with the society for which
rules were needed. Take for instance that important
chapter of the laws of maritime war which affects the
rights of neutrals. The Mediterranean rules embodied
in the Consolat del Mar allowed neutral property to
pass free on board enemy’s ships, and confiscated
enemy's property on board neutral ships. These rules
had received no inconsiderable amount of recognition
in the Atlantic also. Edward III. of England had
adopted them in treaties which he concluded with the
seaports of Biscay Castile and Portugal, the Hollanders
had acted on them in a war with the Hanse towns in
1438, and they appear in the Black Book of the
British ecCmina'ty. But the rule of France was rode
dennemt confisgue robe damit: the enemy’s ship
infected the neutral goods on board and the enemy’s
goods infected the neutral ship which carried them,
and all were condemned. And the northern powers,
strong at sea, did not really allow to neutral commerce
the freedom which the Mediterranean cities, more
equally matched, were obliged to tolerate. England
Denmark Sweden and the Hanse towns laboured to
put down neutral commerce with their enemies by
treaties, by solicitations to neutral sovereigns, and even
by arbitrary prohibitions. The close of the sixteenth
and the beginning of the seventeenth centuries were
marked by the Dutch invention of blockade and by a
greater readiness to limit general prohibitions to articles
distinguished as contraband of war, and the doctrines
of the Consolat thus began to stand out more clearly,
in the practice of the powers which professed them, as
applicable to neutral commerce in all cases except those
62 INTERNATIONAL LAW. [ CHAP.

 

of blockade and contraband. But they were still con-
fronted by the French rule, and in the middle of the
seventeenth century the Dutch, in view of their interest
as neutral carriers, made efforts which were widely
successful to introduce by treaty the rule “free ships
free goods, enemy ships enemy goods.” Evidently
then there was no custom of nations on the subject.

With this state of things Grotius dealt feebly. He
did not mention contraband of war ; he subjected block-
ade to a condition not dreamed of by his countrymen,
that a speedy surrender of the blockaded place should
be expected; he suggested a baseless presumption that
the goods on board an enemy’s ship would be enemy's,
in order to justify the infection of neutral goods by
the enemy character of the ship; and he would have
made the infection of a neutral ship by the enemy
character of the goods on board depend on whether
the shipowner had consented to carry them. Indeed
the book of Grotius obtained an instant and wide
currency as expressing the milder sentiments of the
age which was coming in, and as containing, in spite
of all its gaps, the most complete code to be found of
the law which was wanted, But it must from the first
have been felt to be wanting with regard to the ques-
tions for which, because they were those of the day,
erudition could do the least. It is not surprising that
Pufendorff, the next theorist on international law,
entirely eliminated from his sources of it the custom of
nations which had given so little of useful result.

The boundary between the natural law and the
superadded custom of nations had been difficult to
trace in those points of established usage of which the
justification by reason was so simple that they might
just as well be regarded as necessary deductions from
Iv. | THE PEACE OF WESTPHALIA AND PUFENDORFF. 63

 

reason. Pufendorff elected to refer such points to the
natural law, and for all the rest he denied that the
custom of nations had any binding force on the con-
science. Thus Grotius had included the rules relating
to diplomatic intercourse (jus legationum) in the jus
gentium, but Pufendorff referred the immunities of
ambassadors to the natural law so far as he regarded
them as necessary for legitimate purposes, while, so
far as they covered the residence of ambassadors more
for the purpose of spying than of treating, he held
that any state might refuse them if it was ready to
have its own ambassadors dealt with in the same
way’. His point of view was that of the theologian
and the moralist and not that of the lawyer. His
interest lay rather in determining the limits which
conscience might allow to the action of an individual
man or state in conceivable circumstances, than in
determining the rules which ought to control such
action in the main. Hence, while insisting much on
the social nature of man as the source of his duties,
he missed the essential facts that, if society is to exist,
it must establish rules free from such undefinable
elements as the principal purpose of an ambassador’s
residence, and those rules must be acquiesced in by
the members of the society. He missed what Suarez,
casuist as he too was, had been able to see. But even
Pufendorff could hardly have missed it if in his time
the custom of nations had furnished a body of rules
more adequate to their intercourse and more imposing
by its comprehensiveness.

The passage in which Pufendorff sums up his

1 De Fure Nature et Gentium, |. 2, c. 3, §23. This work appeared in

1672 at Lund in Sweden, where Pufendorff was then a professor, but he
was a native of Chemnitz in Saxony.
64 INTERNATIONAL LAW. [cHaP.

 

international principles is worth giving in his own
words. “Lastly,” he says, ‘‘we must consider whether
there is any peculiar and positive yus gentoum con-
trasted with natural law, for the learned are not agreed
on the question. Many regard the law of nature and
the jus genttum as being one and the same, differing
only in name. So Hobbes (De Cive, c. xiv. 4. 5)
divides natural law ‘into the natural law of men and
the natural law of states commonly called jus gentzum.
The precepts of both,’ he adds, ‘are the same, but
because states when once they have been established
put on the characters belonging to the persons of men,
the law which we call natural when speaking of the
duty of individual men is called jus gentium when
applied to entire states or nations.’ To which opinion
we fully subscribe, nor do we deem that there is any
other voluntary or positive jus gentium, at least with
the force of law properly so called, binding nations
as proceeding from a superior’.” Thus Hobbes and
Pufendorff discarded from their understanding of the
phrase jus gentium all reference to the authority on
which that law was based, whether the conscience of
mankind or the custom of nations, and employed it
in the sense of the law existing between nations, as
in Isidore of Seville and the Decretal. Among the
writers who copied them in identifying it in that sense
with the law of nature, “the law of nature and of
nations,” the title which Pufendorff gave his book,
became a standard phrase. Startling results flowed
from the absolute parity so asserted between the
technical individual formed by the state and the
natural man. Thus, since between natural individuals
a contract extorted by force is not binding, those for
1 U.S,
Iv. | THE PEACE OF WESTPHALIA AND PUFENDORFF. 65

 

whom the law of nature and of nations was one and
the same could not hold that a treaty of peace was
binding between states, if one of the belligerents had
so completely gained the upper hand in the war that
the other had no choice but to accept the terms
proposed. Pufendorff did not shrink from that con-
clusion. If a state rushes into war without first trying
all pacific means of settling the dispute, he considers
it to be under a kind of contract to abide by the event.
But if it is unjustly attacked, and after having vainly
appealed to pacific means is driven to conclude an
unfair peace, it may try to repair the injustice done it
when opportunity offers. For the rest, Pufendorff
contributes nothing to fill the void which his elimina-
tion of the customary law of nations tended to leave.
He passes without notice those great topics, such as
the laws of maritime war, on which the need of positive
rules was the greatest want of his time in international
law. The identity of the law of nature for private
persons and for states could lead to no rules for the
guidance of states in situations in which private persons
are not and cannot be placed.

1U.S., 18, c. 8, § 1.

Ww, 5
CHAPTER V.
BYNKERSHOEK : WOLFF: VATTEL.
Bynkershoek.

From the Peace of Westphalia to the present day
the great desideratum of international law has been
the union of reason and custom in a satisfactory
body of rules, satisfactory in the sense in which alone
the term can be applied to arrangements made or
accepted by man, as supplying a system capable of
being put in practice under actual conditions, and
fairly meeting the needs which arise from them, with-
out excluding improvement, or modification to suit
changed conditions. That desideratum can never be
fully attained till the society of states has been pro-
vided with some organisation, but to aid in realising it
ought to be the aim of every writer on the subject
and of every statesman who is concerned with inter-
national affairs. Writers and statesmen however will
naturally address themselves to the task with different
prepossessions. The former, so far as they are im-
pelled by ideas to write, will magnify the part of
reason ; the latter will find their way smoothed by
adherence to custom. Even writers are grouped by
personal or national characteristics into schools leaning
more to the one or the other element, and within
CHAP. V. | BYNKERSHOEK. 67

 

the first half of the eighteenth century that differ-
ence may already be traced between Cornelius van
Bynkershoek, the Dutch lawyer and president of the
high council of Holland, and the German professor
Christian von Wolff.

The principal work of Bynkershoek on our subject
is the Questionum Juris Publict libri duo, published
in 1737. He had previously published a Dzssertatzo
de Dominio maris, and De foro Legatorum tam in
causa civilt quam criminalt liber singularis. He uses
the term jus gentium in the sense of the law between
states which Hobbes and Pufendorff had stamped on it.
To whatever extent later theorists might differ from
those authorities by admitting an element of custom
into the mutual obligations of states, they did not recur
in their language either to the Roman meaning of
jus gentium as the law in which mankind agrees, or
to its meaning in Grotius as a branch of voluntary
human law. A term which had implied a certain
source or a certain part of international law, having
been extended to the whole of it through the view
that it had but one source in the law of nature, re-
mained identified with the whole, and any distinction
had to be made by other words. Henceforth jus
gentium and the terms that literally translate it—/e
drow des gens, das Voilkerrechi, the law of nations—
mean simply international law,

Bynkershoek’s general views are expressed in the
few pages which, under the title ad lectorem, he
prefixed to the Questiones Furis Publicz. “In the
law of nations no human authority can prevail against
reason, but where reason is doubtful, as is often the
case, that law must be judged of by nearly constant
practice (ex perpetuo fere usu). But many things were

5—-2
68 INTERNATIONAL LAW. [cHapP.

 

once a part of the law of nations which are not so
now; for example, treaties are not now valid without
ratification, though the negotiators who concluded
them held full powers from their governments, which
formerly was otherwise. And therefore the examples
and treaties which I here use I take rather from
recent than from older times, desiring that what I
write shall be practically useful.” The authority of
custom is thinly veiled by representing reason as
doubtful whenever custom is allowed to prevail over
it, or is admitted to have changed. And in the body
of the work the veil is scarcely maintained. The
right of putting captive enemies to death, for instance,
is stoutly maintained by reasoning, but it is immediately
admitted that it has become obsolete, and that the
right of enslaving captive enemies, which succeeded to
it, has become obsolete in its turn’. And in speaking
of contraband of war Bynkershoek roundly says: “the
common law of nations on this matter can only be
learnt from reason and custom ®.”

But what Bynkershoek has become most famous
for is his use of treaties as evidence of custom. “I do
not deny that authority may add weight to reason,
but I prefer to seek it in a constant custom of con-
cluding treaties in one sense or another, and in examples
that have occurred in one country or another, rather
than from the testimony of any poet or orator, Greek
or Roman: verily they are the worst teachers of public
law. They serve more to display erudition than to
furnish authority. The authority of those who transact
affairs in the sight of all men, and who have learnt
wisdom from what has happened before, weighs more

1 Questiones juris public, \. 1, c. 3.
2U.5S.,1. 1, ¢. 10,
v. | BYNKERSHOEK. 69

 

with me. They are in the habit of concluding treaties
on the footing of the practice of nations. Not that I
would pay deference even to their authority without
reason, but that, where reason is on the same side, I
value them more than a pack of poets and orators’.”
It will be observed that in this declaration of principles,
as well as in the previous quotation from the ad lectorem,
the appeal is made to statesmen and to examples
without a limitation to treaties, although treaties are
mentioned with emphasis. And accordingly we find that
in the body of the book great use is also made of the
unilateral acts of states, The chapter on blockade, for
instance, would have little left if the Dutch procla-
mations were taken out of it* But in building on
foundations of that character Bynkershoek was at one
with Selden, Zouch, and the whole of the English
school, who applied the doctrines of the English
admiralty to the sovereignty of the narrow seas and
the legal position of neutral commerce. Treaties
however had been too much employed in introducing
the rule ‘free ships free goods”, in opposition to the
Consolat del Mar and the doctrines of the English
admiralty, to be regarded in the same quarter with equal
favour. The English school drew from a treaty, at
least presumptively, the inference that the rule which
it adopted was not that which existed in the absence
of treaty ; else what necessity was there for a stipula-
tion on the subject? Bynkershoek was on the same
side as to the particular question of ‘free ships free
goods*”, but he would have contended that, when
treaties of a certain purport become numerous enough,

1U. S., ad lectorem. 2U.S., 1 1,c 11
3U.S.,1 1, ¢.14. “One or two treaties differing from custom do
not change the law of nations:” u. s., 1. 1, c. Io.
70 INTERNATIONAL LAW. [cHap.

 

the question is no longer what is the rule in the absence
of treaty, but whether the rule they adopt is not, now
at least, to be deemed the most consonant to reason.
That mode of looking at treaties is of course ap-
proved by those whose devotion to reason as the
‘only source of the law of nations is less qualified
than was Bynkershoek’s, and he is justly credited with
its authorship.

Lastly, what is the reason which is of so much
account even in the system of Bynkershoek? If men
differ about it, what common ground is there for
disputants ? Hardly any but the Roman law, to which
an appeal is frankly made’. Outside this we find
arguments drawn from a state of nature believed or
feigned to have preceded human institutions, but about
which there could be no certain knowledge, or from
any other consideration thought appropriate to the
matter for the moment in hand. Evidently the school
which leans to reason will try to find some better
foundation than those which have contented the school
which leans to custom.

Wolff.

Few names which have been great in their day
have sunk deeper into oblivion than that of Wolff,
whose philosophy reigned in Germany during the
interval between Leibnitz and Kant, yet he has left a
mark on international law. Having already written
on natural law, he published in 1749 a ponderous
treatise entitled ¥us Gentium methodo sctentifica per-
tractatum, in quo gus gentium naturale ab eo quod volun-

1 Non quod in its guae sola ratio commendat a jure Romano ad

jus gentium non tuta sit collectio, sed guod Paulus agat de magistro qui
&o: ues, lI, c. 14.
v. | WOLFF. 71

 

taric pactitit et consuetudinarit est accurate distin-
guitur. He starts from the principles that by associa-
tion in a state all its citizens are obliged in conscience
to promote the common good and the sufficiency tran-
quillity and security of the life of each; that this duty
further obliges them to maintain their association
in the state, without which it cannot be fulfilled;
and that it is consequently the duty of a state to
preserve itself as an association of its citizens, to
perfect itself in all things necessary to its end, and
to avoid every thing tending to its destruction or
imperfection (§§ 28—31, 33, 35, 36). Next he in-
vokes the principle, which he considers himself to
have proved in his previous writings, that the law
of nature gives men a right to those things without
which they cannot satisfy their obligations of duty ;
and it follows at once that states have a right to those
things by means of which they may avert their de-
struction and what tends to it, or without which they
cannot perfect themselves or avoid what tends to their
imperfection (§§ 32, 34, 37). The legacy of Wolff
to international law is this doctrine of abstract rights,
or of rights to things inherent in persons and states
and determining their mutual relations in respect to
those things, put in place of the doctrine that rights
flow from the disposition made of things by law. The
meeting point of the two doctrines is in the admission
which every one must make, that there is a distributive
justice by which law ought to be guided’; but to set
up inherent rights as the measure of distributive justice
is to invite conflict, for what two men or what two
states require in order to avert their destruction or
to promote their perfection may be incompatible.

1 See above, pp. 39—41.
72 INTERNATIONAL LAW. [ CHAP.

 

Wolff appears to accentuate the conflict when
he treats nations as members of a cvitas maxima
(§§ 9, 10), and as bound to one another by duties
equal in extent to those which they owe themselves,
only differing in the priority which he grants to the
latter (§§ 156, 206). But he tries to part the litigants.
“Since”, he says, “every nation owes to every other
nation what it owes to itself, so far as the latter does
not possess it and the former can furnish it without
neglect of its duty to itself, and every nation is
free and by virtue of natural liberty every one must
be allowed to be the judge of his own actions, it
follows that every nation must be the judge of what
it can furnish without neglect of duty to itself, and
any other nation must put up with a denial of what it
asks for; in other words, the right of a nation to
what other nations naturally owe it is an imperfect
one” (§ 157), and cannot be enforced (§ 158). Thus
inherent rights are confronted by the maxim Jdeati
posstdentes, a barrier so ineffectual in fact that it is
scarcely needful to discuss its sufficiency in theory.

No nation ought to hurt another, and the notion
of hurt is in natural law much wider than in civil
law, and extends to every thing which impairs the
perfection of another nation or of its condition (§§ 173,
645). Every nation has a perfect, that is an enforceable,
right not to suffer hurt from another (§§ 252, 253):
this is called the right of security, and arises even
when the hurt is only intended (§ 254).

Christian Thomasius, with whose writings I am
not acquainted at first hand, is said to have introduced
in 1705 the nomenclature of perfect and imperfect
duties for those of which the fulfilment can and cannot
be enforced consistently with justice, in connection
v.] WOLFF. 73

 

with the principle that the only duties of the former
kind are those which arise from the maxim “do
not to others what you would not wish them to do
to you”, in other words, that negative duties alone
belong to justice, affirmative ones being permanently
relegated to the domain of morals. That principle
is practically identical with Kant’s, whose system on
this subject was based on liberty, to be enjoyed by
each so far as compatible with the equal liberty of all,
so that the only perfect and enforceable obligation is
not to interfere with the liberty of your neighbour.

But neither in the form given to it by Thomasius
nor in that given to it by Kant has such a limitation of
the province of law received any great amount of favour,
except in periods of reaction against over-legislation.
It does not in the long run satisfy the exigencies of
human affairs, nor does it atone by clearness for what
it lacks in sufficiency. Even so illustrious an attempt
as that made by the younger Mill to extract a definite
limit to legislation from the notion of liberty serves
for little except to give a wholesome bias to the mind,
when considering the multitudinous claims to the inter-
vention of law which assail it. Nor are we on surer
ground if, with Wolff, we dangle inherent rights more
largely conceived before the eyes, and fancy that
we shall baulk the expectations we have raised by
making men or nations judges in their own cause,
as against those who would realise the rights by
active measures. The distributive justice at which
humanity aims will always defy set bounds, it will
consent to be nothing less than Leibnitz’s “ charity
of the wise”, the best feelings coupled with the

1 See Professor Lorimer’s /ustztuces of Law, book 1, chap. xi.
74 INTERNATIONAL LAW. [ CHAP.

 

greatest wisdom to which the race has attained’. As
that charity is developed the limit between perfect
and imperfect rights will be placed at different points.
The range of the former will not always be enlarged,
the improvement of men may make it safe to extend
the range of liberty. But the limit will not be an
abstract one, settled a prior. It will never be possible
to determine from the nature of a right alone whether
it ought to be enforceable.

In connection with the international application
of Wolff’s doctrine a point remains to be mentioned
which seems to have escaped him. For the full en-
joyment of a right under the sanction of law it is often
not enough that it should be recognised by the legis-
lator, he must regulate it. Within a state, the re-
gulation will accompany the recognition. The right
will be recognised in certain circumstances and on
certain conditions. Between states, the circumstances
and conditions will in many cases bear no settlement
by doctrine, none but by express agreement. Take
the extradition of criminals for instance. Doctrine
may lay down that extradition ought to be granted
only for grave crimes, but it cannot determine pre-
cisely for what crimes. It may lay down that a prima
facie case ought to be made out against the person
accused, but not precisely what evidence not satisfying
the usual requirements of the court ought to be
received from abroad for that purpose. Or take the
navigation of what are called international rivers,
that is, rivers flowing through the territories of

1 Fustitiam igttur, que virtus est hujus affectus rectrix quem du-
AavOpworiav Greci vocant, commodissime ni fallor defintemus caritatem

sapientis, hoc est, seguentem saptentie dictata. Leibnitz, quoted by
Lorimer, u. s.
v. | WOLFF. 75

 

more than one state. Doctrine may lay down that
a state ought not to bar the peaceful passage across
its territory along such ariver, or hamper it by customs
duties, but it cannot determine the measure in which
those who use the passage ought to contribute to
the cost of maintaining the navigation, or the regula-
tions to which they ought to be subject for the security
of the state across which they pass. Therefore extra-
dition and the peaceful navigation of international
rivers must be imperfect rights in the sense that
conventions are indispensable to their due enjoyment.
But it does not follow that there is in them no element
of law or of perfect right. If a state persistently
refused either to conclude proper conventions for
extradition or to surrender fugitive criminals without
them, it is not to be supposed that other states would
feel themselves bound to put up for ever with its
being an Alsatia, rendering the due repression of crime
within their own limits impossible. Nor is it to be
supposed that states desiring commerce with one other,
which might well be what Wolff would have described
as necessary to the perfection of their condition, would
feel themselves bound to forego it for ever because
a state across the territory of which it was necessary
to pass along a navigable river was persistently churl-
ish. Consequently between nations three degrees of
right have to be admitted. Besides the claims to the en-
forcement of which by compulsion the general opinion
of the civilised world would give no approbation, and
those which it considers to be enforceable as they stand,
there are claims which that opinion would certainly
not be content to leave to the caprice of the states
on which they exist, and which yet are not as a
general rule enforceable until they have been em-
76 INTERNATIONAL LAW. | cHar.

 

bodied in conventions. The first are only moral
rights, the second are legal. The third have a legal
basis, generally left without notice, but which in rare
cases obtrudes itself on the attention and may justify
action. Perhaps it would be convenient to reserve
the term “imperfect rights” for the last, although
Thomasius introduced it for moral rights.

Vattel.

Vattel was a native of the principality of Neuchatel,
then belonging to the king of Prussia, but served the
elector-king, elector of Saxony and king of Poland,
successively as cousezller d’ambassade, minister in Swit-
zerland, and conseiller privé du cabinet. His famous
work was published in 1758, under the title of Le
Droit des Gens, ou principes de la lot naturelle appli-
gués & la conduite et aux affaires des nations et des
souverains. Its philosophical principles are those of
Wolff, of whom Vattel was a great though not a servile
admirer, but its chief merit is on the practical side.
It presents the law of nations as it then stood with
a fulness of which there had been no previous example,
including the topics which had grown up since the
time of Grotius or on which Grotius had not dwelt,
and on which Wolff had had little or nothing to say ;
and it does so from the point of view of a man versed
in affairs, familiar with the customs which had been
taking shape since the Peace of Westphalia, and duly
appreciating their value. Its reputation was therefore
as well deserved as it was immediate, and it must
remain of lasting importance in the study of inter-
national Jaw, as the focus in which the schools of
v. | VATTEL, aT

 

reason and custom were first brought together, and
from which the succeeding divergences may be traced.

It is not necessary to pursue our historical sketch
further. Indeed, if carried further, it could only dis-
play the operation, with regard to particular questions,
of those general tendencies and principles of which
we have seen the origin. Such operation can best
be studied in relation to each question as it offers
itself, but we may first spend a little time in fixing
our own point of view.
CHAPTER VI.
THE PRINCIPLES OF INTERNATIONAL LAW.

1. THE society of states, having European civili-
sation, or the international society, is the most compre-
hensive form of society among men, but it is among
men that it exists. States are its immediate, men its
ultimate members. The duties and rights of states are
only the duties and rights of the men who compose them.

2. The consent of the international society to the
rules prevailing in it is the consent of the men who are
the ultimate members of that society. When one of
those rules is invoked against a state, it is not necessary
to show that the state in question has assented to the
rule either diplomatically or by having acted on it,
though it is a strong argument if you can do so. _ It is
enough to show that the general consensus of opinion
within the limits of European civilisation is in favour
of the rule.

3. The consent of the international society, defined
as in the last paragraph, and given toa rule as an enforce-
able rule of law, is normally binding on the consciences
of men in matters arising within the society and tran-
scending the state tie, as state law is normally binding
on the conscience within that tie. Such consent there-
fore normally determines the mutual duties and rights
CHAP. v1. | THE PRINCIPLES OF INTERNATIONAL LAW. 79

 

of the states in which men are grouped. This is so
because the international society is not a voluntary but
a necessary one, and the general consensus of opinion
among its members is the only authority that can
make rules for it. The men who compose any state
derive benefits from that society, and therefore cannot
at their pleasure adhere to it in part and not altogether.
The existence, in geographical proximity to the inter-
national society, of a state which was not bound by
its rules, would be a source of intolerable inconvenience
and danger to the members of the society. The social
nature of man lies at the bottom of these reasons.

4. International rules ought to be made with due
care that they shall not restrict liberty more than is
necessary, that they shall be suited to the cases which
most commonly arise, and that reciprocity in their
application shall be possible. It is no reason for not
applying a rule that a different one would have been
better suited to the particular case.

5. In matters transcending the state tie, and so
far as a rule founded on the consent of a society is
wanting, the men who guide the action of states have
only to obey their consciences. The want of a rule
to define the action allowable does not exclude all
action. The largest field for the application of this
principle is in dealings with states or populations not
having the civilisation necessary for forming part of
the international society, but the principle is sometimes
applicable between states included in that society.

6. When a state has to act although a rule is
wanting, it ought as far as possible so to act that a
rule might be framed on the precedent.

7. The obligation of international rules on the
conscience, even when they have once been founded on
80 INTERNATIONAL LAW. [ CHAP.

 

a general consensus, is subject to exception, as is the
obligation of state law on the conscience. And in the
former department the conscience will have a some-
what greater latitude than within a state, because there
is no international legislature, and diplomatic agree-
ments for the change of a rule can with difficulty be
made to comprise so large a number of states as to
prove that the general opinion has been changed;
wherefore an international rule can rarely be changed
otherwise than by its ceasing to be followed and
general approval being given to such change of practice,
of which some state must set the example. Hence it
is not a conclusive, though a strong, argument against
a state that it has itself applied the rule of which it
resists the application. It would be contrary to the
moral nature of man that he should be fettered, abso-
lutely and permanently, by any external rule.

8. When a state is confronted by a rule which it
deems to be bad, either originally or because it has
become bad through a change of circumstances, it
ought to take into account the greater or less evil
which always results from violating known rules, and,
if it decides to violate the rule in question, it ought
as far as possible so to act that a better rule may
be framed on the precedent. Neither in violating
a rule nor in acting where a rule is wanting, is a state
at liberty to consider only its particular case, without
reference to the conduct which would be best suited
to the cases which most commonly arise.

9. No law, national or international, will be
durable unless it is fairly well adapted to the cha-
racter and circumstances of the men who are to
observe it. Hence the social nature of man, and
his material and moral surroundings in the regions
VI. | THE PRINCIPLES OF INTERNATIONAL LAW. 81

 

and at the time in question, are the ultimate source of
international law, in the sense that they are the cause
why any rules of international law exist, and that
they furnish a test with which any particular rules
of that law must comply on pain of not being durable
rules. And consent is the immediate source of inter-
national law, in the sense that the social nature of man
and his material and moral surroundings may furnish
principles of action, but only the consent of a society
can establish rules.

10. The international society to which we belong,
and of which what we know as international law is the
body of rules, comprises—/?rs¢, all European states.
These, as explained in speaking of the Peace of
Westphalia, form a system intimately bound together
by the interests of its members’. Concert is another
word used to express a system in this sense. The
French text of the treaty of Paris, 1856, Art. 7, says
that the Sublime Porte is admitted to participate in
the advantages du droit public et du concert Européens,
for which the English version has “of the public
law and system (concert) of Europe.” Secondly, all
American states. These, on becoming independent,
inherited the international law of Europe, as will be
seen in the next paragraph, and they are as neces-
sary parties as the European states for its further
development. That they do not form part politically
of the European system is due to the fact that, on
account of their geographical situation, they do not
desire to do so. Thirdly, a few Christian states in
other parts of the world, as the Hawaiian Islands,
Liberia and the Orange Free State. The same

1 See above, pp. 55, 56.
82 INTERNATIONAL LAW, [ CHAP.

 

cannot be said of all Christian states, not for instance
of Abyssinia.

11. No new state, arising from the dismember-
ment of an old one within the geographical limits
of our international society, has the option of giving
or refusing its consent to the international law of
that society. Since all obligations are ultimately those
of men, the men who compose the new state were
bound by that law as members. of their former state,
and they cannot by a unilateral act change the footing
on which their intercourse with the other members of
the international society is based.

12. Our international society exercises the right
of admitting outside states to parts of its international
law without necessarily admitting them to the whole of
it. Thus a large part of the relations between the
European and American states on the one hand,
and China and Japan on the other hand, is conducted
on the footing of ordinary international law; but the
former enjoy in the latter a consular jurisdiction,
substituted for the rules of jurisdiction belonging to
ordinary international law. By a singular anomaly
a similar consular jurisdiction is still enjoyed by the
other European and American states in the Turkish
empire, although that empire has been admitted not
only to the public law of Europe but even to the
European political system. This is an instance of
the way in which all human institutions, being free
and not mechanical products, shade off from one to
another.

13. There are claims between states to things
the normal enjoyment of which requires definition
and regulation not obtainable, in the absence of an
international legislature, otherwise than by express
VI. | THE PRINCIPLES OF INTERNATIONAL LAW. 83

 

convention, but with regard to which general opinion
does not leave it free to states to enter into reasonable
conventions or to refuse them. Such claims are im-
perfect legal rights, and must be distinguished from
the merely moral claims which a state is considered
to be free to refuse. The extradition of criminals
and the peaceful navigation of rivers flowing through
the territories of more than one state are examples.
These imperfect legal rights are analogous to the
claims to which, within a state, effect can only be
given by the legislature, but to which the sense of
distributive justice prevailing in the state requires
the legislature to give effect’.

14. The best evidence of the consent which makes
international law is the practice of states appearing
in their actions, in the treaties they conclude, and
in the judgments of their prize and other courts, so
far as in all these ways they have proceeded on general
principles and not with a view to particular circum-
stances, and so far as their actions and the judg-
ments of their courts have not been encountered by
resistance or protest from other states. Even protest
and resistance may be too feeble to prevent general
consent being concluded from a widely extended
practice.

15. The arguments adduced by statesmen in
despatches and other public utterances are very im-
portant as showing what were the principles proceeded
on, especially in the case of treaties, which are so
often concluded with a view to particular circumstances
that great care must be taken in using them as evidences
of international law.

! See above, pp. 74—76.
84 INTERNATIONAL LAW. [ CHAP.

 

16. Special authority is often claimed for the
practice of those states which are most concerned
with a particular branch of international law, as for
that of the chief maritime powers with regard to the
laws of maritime war. There is a good foundation
for such a claim in the fact that the powers most
concerned with a subject must understand it best,
and be best able to distinguish good from bad
reasoning about it. On the other hand, special know-
ledge is often accompanied by the bias of special
interest. But when the states most concerned with
a subject in turn apply the same rules and suffer
their application, that bias may be supposed to be
eliminated, and the agreement which those concerned
in the vast majority of cases find suitable must count
for a general agreement in spite of much comparatively
speculative criticism from other quarters.

17. Theopinions of private writers must of course
be counted towards the general consent of men, es-
pecially when the writer’s reputation proves that he
represents many persons besides himself. Moreover,
for much of international law, which is so well observed
that discussions about it between states are not easily
quoted, its admission into accredited text-books is valu-
able testimony to its being observed as law, and not
from any option still remaining free to states. And
when a rule is disputed, or there is a question whether
an old rule ought to be changed or a new one intro-
duced, it is only through public discussion that reason
can be made to appear and prevail.

18. Time cannot supply the want of general agree-
ment, but where the agreement in favour of an altered
or added rule is sufficiently general, it is an element in
determining the limit of the forbearance to be shown to
vi.] | THE PRINCIPLES OF INTERNATIONAL LAW. 85

 

a state which persists in resisting the change or the
addition. When reasoning has stood the test of time,
it can no longer be urged that it resulted from caprice,

or from the undue consideration of a transitory in-
terest.
CHAPTER VII.
THE EQUALITY AND INDEPENDENCE OF STATES.

The Independence and Legal Equality of States, and
Semt-Sovererguty.

In Wolff, and through him in Vattel, the doctrine
of the equality of nations appears in the following form.
Being regarded as persons living in a state of nature,
nations are naturally equal as men are naturally equal ;
a small nation is as much a nation as a large one, just
as a dwarf is as much a man as a giant; it is therefore
natural or necessary that all nations have the same
rights and the same obligations, as much and no more
being allowed to one nation as to another’. If we
leave out the attempt at deduction contained in this, it
amounts to no more than a statement of the fact that
international law is a body of general rules. But
besides that fact there is another. The general rules
of international law apply in their fulness only to
sovereign states like France or the United Kingdom,
and to natural persons brought into relation with
sovereign states, as is the case of pirates and block-
ade-runners. Between sovereign states and natural
persons international law recognises groups of the latter

1 Wolff, Jus Gentium, §§ 16, 17,18; Vattel, Le Drott des Gens, §§ 18,
19 of the Préliminaires.
VII. | INDEPENDENCE AND LEGAL EQUALITY OF STATES. 87

 

not on an equality with the former, of which Bulgaria
may be taken as an example’, and which may be
classed together as semi-sovereign though they may
and do differ in their particular condition and rights.
When this second fact is taken into account, it results
that the equality of states cannot usefully or even
intelligibly be presented as a deduction unless the
deduction also furnishes a test showing to what states
it applies. Let us look at the truth as it stands.

Independence, like every negative, does not admit
of degrees. A group of men dependent in any degree
on another group is not independent, but has relations
with that other group which as between the two are
constitutional relations. Sovereignty is partible. A
group of men is fully sovereign when it has no con-
stitutional relations making it in any degree dependent
on any other group: if it has such relations, so much
of sovereignty as they leave it is a kind or degree
of semi-sovereignty, though the constitution may not
call it by that name. Thus the independence and the
full sovereignty of a state are identical, but it would be
an abuse of language to speak of semi-sovereignty
as partial independence.

The constitutional relations between a semi-sove-
reign state and the state on which it is dependent
may exclude the former from any public intercourse
with foreign states, as in the case of the United States

1 By Art. 1 of the treaty of Berlin, 1878, “ Bulgaria is constituted an
autonomous and tributary principality under the suzerainty of His Imperial
Majesty the Sultan.” And, by Art. 10, Bulgaria takes the place of the
Imperial Ottoman Government in its railway obligations, as well pecuniary
as with regard to the working of the railways, and both towards the
companies and towards Austria-Hungary; and “the conventions necessary
for the settlement of these questions shall be concluded between Austria-

Hungary, the Porte, Servia and the principality of Bulgaria immediately
after the conclusion of the peace.”
88 INTERNATIONAL LAW. | CHAP.

 

of America and the so-called sovereign states comprised
in the union. Or they may permit such intercourse
within certain limits, and with the difference that the
whole may not be able to compel the parts to observe
those limits, as in the case of the Holy Roman Empire
which was dissolved in 1806, or may enjoy enough
both of material strength and of popular good will
to make obedience to its constitution practically secure,
which is doubtless the case of the present German
empire’. And there may be this other difference,
that foreign states may be parties to the constitutional
arrangements by which asemi-sovereign state is allowed
to have a limited public intercourse with them, as in
the case of the Holy Roman Empire by the Peace
of Westphalia, and in that of Bulgaria by the treaty of
Berlin, or those arrangements may have been made
without the concurrence of any foreign power, as in
the case of the present German empire.

The result of the foregoing is that the states
between which the rules of international law prevail
in their fulness are, /7zvs¢, those which are sovereign
and independent constitutionally as well as interna-
tionally, such as France and the United Kingdom ;
Secondly, those which other states accept in their
dealings with them as being sovereign and indepen-
dent, although they may be nominally hampered by
a ‘weak constitutional tie. Of the latter class there

1 See above, pp. 56, 57, as to the Holy Roman Empire. The con-
stitution of the present German empire reserves to the imperial authority
all treaties of peace, of alliance or for any other political objects, all
commercial or postal treaties, and all treaties relating to copyright,
extradition, domicile, emigration or the administration of civil or criminal
law. But diplomatic relations between foreign powers and the states of
the empire are not entirely excluded, and England has ministers resident
or chargés d@’affairves at many of the German capitals.
VIL. | INDEPENDENCE AND LEGAL EQUALITY OF STATES. 89

 

is perhaps no example at present, but the states of
the Holy Roman Empire were formerly examples
of it. The states of both classes, as far as they exist
or have existed, deal with one another on the footing
of equality in the sense of Wolff and Vattel, that is,
they admit the identity of rights and obligations for all,
which is merely to say that the international law which
they recognise is a body of general rules and not of
particular solutions.

Thus the duties of neutrality are the same for
a weak state as for a powerful one, though they may
be burdensome to the one and easy to the other. The
weak state must endure the burden as long as it clings
to its independence. And this equality, as it is not
necessarily connected with any constitutional or other
antecedent character in the states enjoying it, but is
essentially attached to independence in fact, cannot
be deduced by reasoning from any higher source than
the fact. The states which do not enjoy it while at the
same time possessing certain foreign relations, because
the constitutional tie which limits their sovereignty
is internationally respected, are semi-sovereign inter-
nationally as well as constitutionally, and the dealings
between them and foreign states which their constitu-
tional limitation permits are conducted on the basis of
ordinary international law so far as applicable. Where
on the other hand, as in the case of the United States,
the component parts of an independent state are effect-
ually precluded from having any foreign relations, not
only can the constitutional condition of those parts not
really exceed semi-sovereignty, by whatever name
it may be graced, but internationally they are not
even semi-sovereign, they have no international exist-
ence at all.
go INTERNATIONAL LAW. [cHAP.

 

The word ‘“suzerainty” is used in the treaty of
Berlin to express the relation of the Sublime Porte
to the principality of Bulgaria, which it created. That,
in the middle ages, was the proper term for the relation
of a feudal superior to his vassal, while “ sovereignty ”
was more properly superiority in jurisdiction, the highest
court in a territory which was distinct for judicial
purposes being called a cour souveraine. The queen
is our sovereign because she is ‘over all persons and
in all causes within her dominions supreme.” Con-
sequently a modern description of a state as subject
to a suzerainty does not by itself shut it out from
any of the rights that were enjoyed by the states
of the Holy Roman Empire, which were interna-
tionally accepted as sovereign states, and were so
called, while they recognised the empire as_ their
suzerain power. How many of those rights it is
intended that the state in question shall enjoy must
be ascertained from the more detailed provisions of
its constitution.

Questions sometimes arise whether a certain whole
is a federal state or a federation of states, and whether
a certain union of monarchies is real or personal. The
notions of full and partial sovereignty appear sufficient
to cover the former question and to guide to an analo-
gous solution of the latter. If de facto the whole of the
union confronts all foreign powers as the exclusive
representative of its territory and population, it is
internationally a federal state or a real union. If
de facto the several portions entertain any relations
with foreign powers, then for the international lawyer
the whole in strictness of language can only be a
federation of states or a personal union, although it
might be pedantic to insist on such strictness where
Vi. | INDEPENDENCE AND LEGAL EQUALITY OF STATES. Q1

 

the foreign relations possessed by the several portions
were of trifling importance. Thus I should not pro-
pose to call the present German empire anything but
a federal state, so long as the justification for giving it
that name is distinctly understood. From these prin-
ciples of nomenclature, if they are accepted, it seems to
follow that a personal union may grow into a real one
by habit, without any change of constitution. Thus,
when James the Sixth of Scotland became James the
First of England, the union between the two countries
was only personal. James remained at peace with
Spain as king of Scotland, but was at war with Spain
as king of England until the war which existed at
his accession was closed by a treaty of peace. But
it would surely be pedantic to say that in the in-
ternational] sense the union was still only personal
under William the Third, and under queen Anne at
the date of the battle of Blenheim. No British or
foreign statesman then dreamt of different treaties or
different terms for England and Scotland as being
possible, nor were England and Scotland represented
by different negotiators. The case of Hanover was
not the same as that of Scotland, rather because the
king negotiated for that country through his Hano-
verian ministers than because the Salic law might
carry the crown of Hanover to a different sovereign,
as it ultimately did. The dominions which had been
personally united in the Hapsburgs came to be re-
garded internationally as one state long before a
constitutional tie had been established between them,
or the Pragmatic Sanction had obviated the danger
that a female succession might carry Hungary to a
different line from Austria.
92 INTERNATIONAL LAW. [ CHAP.

 

Lhe Political Inequality of States, and the Great
Powers of Europe.

When a matter arises, and the states which are
agreed as to the mode of dealing with it carry their
plan into effect as far as it is possible to do so by their
own action, without directly compelling a state which
does not agree with them to join in their action and
without directly affecting that state, they do not violate
its independence. But their action may indirectly
compel that state to join in it, or to endure without
Opposition a conduct which it deems to affect it in-
juriously though indirectly, or of which it disapproves
in the general interest of the European system. In
that case a political victory has been gained over
the state in question. And a state may be so weak
that it is not much or at all consulted by other powers,
and that little attention is paid to its opinion if given.
In that case it is in a situation of political inferiority,
and many states of the European system are per-
manently in such a situation towards what are called
the great powers, yet their legal equality is not neces-
sarily infringed thereby. It is true that politics are
not law, but an adequate motion of a body of law
cannot be gained without understanding the society
in and for which it exists, and it is therefore necessary
for the student of international law to appreciate the
actual position of the great powers of Europe.

At no time and in no quarter of the globe can small
states ever have been admitted by large ones to poli-
tical equality with themselves, and the eighteenth
century in Europe was certainly no exception to that
rule. But in that century the balance of power was
the chief study in international politics, and the great
Vit. | THE POLITICAL INEQUALITY OF STATES. 93

 

powers were usually divided into two nearly equal
bodies. These were not always composed of the same
members : Austria, for instance, was allied with Eng-
land in the war of the Austrian succession and with
France in the Seven Years’ War. Yet, in whatever
direction a minor sovereign deemed that his interest
pointed, there was a strong body to which he could
bring an assistance by no means to be despised in
a contest against another body of nearly equal strength.
In no war of the age was the division of Europe
so unequal as in that of the American revolution,
in which England stood alone while the larger part
of the Continent was arrayed against her either in
hostility or in unfriendly neutrality. But then some
of the smaller powers, whose importance at sea was
far greater than by land, were brought into prominence
by the maritime character of the struggle. What was
wanted in order to bring the contrast between the
great powers and the lesser ones into a strong light
was a crisis on the main aspect of which all or nearly
all Europe should be united, while its management
should raise questions of some though only minor im-
portance. Then it would be seen how far the great
powers would assume the management of such a crisis
to themselves, even in points deeply interesting to the
smaller ones. The opportunity was afforded by the
fall of Napoleon and the arrangements which became
necessary in consequence of it.

The war which led to the first fall of Napoleon
and the restoration of Louis XVIII was ended by
what is called the treaty of Paris, but which was in
reality four treaties concluded 30th May, 1814, in the
same terms, between the restored king of France on
the one hand and England, Austria, Prussia and
94 INTERNATIONAL LAW. [ CHAP.

 

Russia respectively on the other hand. It was of
course a foregone conclusion that France should be
deprived of the immense conquests she had made, and
accordingly by Art. 3 of the treaties the new bound-
ary of France was fixed and she renounced all that lay
beyond it, without saying to whom. Then Art. 32
provided that all the powers which had taken part
in the war should send their plenipotentiaries to
Vienna, “to settle in a general congress the arrange-
ments which are to complete the dispositions of the
present treaty.” To those treaties the three other
powers which had been allied with the four in the
war against Napoleon, Spain Portugal and Sweden,
acceded. But each of the treaties with the four great
powers contained secret articles, of which the first ran
thus: ‘The disposition to be made of the territories
which His Most Christian Majesty renounces by the
3rd Article of the public treaty, and the relations from
which a system of real and lasting equilibrium in
Europe is to result, shall be settled at the congress
on the bases determined by the allied powers among
themselves, and in accordance with the several dis-
positions contained in the following articles.” Then
followed an outline sketch of the mode in which
Europe was to be reconstituted, leaving however
much matter of the highest importance to be filled in.

Thus the congress which the public treaty charged
with making the new arrangements was to be composed
of all the powers which had taken part in the war,
a description that primarily included France and her
seven allied antagonists, known collectively at the
congress as the eight powers. Strictly the description
would also have included the sovereigns who, as the
wave of reconquest passed westward, had abandoned
vit. | THE POLITICAL INEQUALITY OF STATES. 95

 

the fortunes of Napoleon or been restored before
the close of the war on the principle of legitimacy ;
and in fact all Europe was represented at Vienna
except Turkey and the principalities dependent on her,
but although the other states had to sign the particular
arrangements which concerned them, the general act of
the congress was prepared for signature only by the
eight and was signed only by seven of them. By
the secret articles however the five great powers,
including France, pledged the congress in advance
of its meeting to a large part of the settlement ; and
when the plenipotentiaries were assembled, it appeared
that the four great powers other than France under-
stood that they alone, as the allied powers mentioned
in the first secret article, were to decree the rest of the
settlement. With what skill Talleyrand gained the
admission of France to the inner conclave belongs to
the general history of Europe and to the particular
history of the principle of legitimacy. He did not
carry his point without appealing to the powers
of the second order, but when it was carried “the
committee of the five great powers” formally con-
stituted itself, and meetings of the eight powers were
recognised, but no general meeting of the congress
ever took place. A “German committee” was also
recognised, consisting of Austria Prussia Bavaria Wur-
temberg and Hanover, and having for its province
the organisation of a Germanic confederation. But
when Wurtemberg declared in it that she could not
bind herself about the constitution of such a confedera-
tion till it was known what the possessions of each
member of it would be, Metternich replied for Austria
‘and Prussia that all which related to what he called
the political question, by which he meant terri-
96 INTERNATIONAL LAW. [ CHAP.

 

torial arrangements, was outside the competence of the
committee, the great powers having reserved to them-
selves to pronounce on such matters, and that enough
was known about them in a general way for settling
the act of confederation. The king of Wurtemberg
was not satisfied with this answer, and reasonably,
for the fate of Saxony was still undecided, and the
‘“German committee” ceased to meet. Afterwards
the five great powers agreed among themselves that
the king of Saxony should be deprived of two-fifths
of his dominions in favour of Prussia, and his consent
to cede them was compelled by restraining his personal
liberty till he had given it, which must be considered
to have vitiated any title derived from such consent.
But that circumstance was unimportant, for the king
had been faithful to Napoleon to the last, and his
dominions might therefore have been disposed of by
right of conquest, and indeed England Russia and
Prussia had been willing to carry out the arrangement
on that basis, and dispense with an enforced signature.

This was the state of things when Napoleon
returned from Elba, except that the king of Saxony
had not then agreed to the dismemberment of his
dominions, though the five great powers had deter-
mined on it. In face of the danger caused by Na-
poleon’s easy recovery of his throne, the great German
powers showed a more conciliatory spirit towards the
smaller ones, the negotiations for the establishment
of the Germanic confederation were hastened and
completed by signature on 8th June, 1815, and on
the following day the general act of the congress was
signed by the eight powers except Spain, Talleyrand
and his colleagues being permitted to sign on behalf of
Louis XVIII though he was an exile at Ghent, and
VII. | THE POLITICAL INEQUALITY OF STATES. 97

 

a few remaining questions being handed over to
the states directly concerned in them for settlement
between themselves. The reasons given by Spain
for refusing her signature were (1) that the act
included a stipulation contrary to the immediate and
complete restitution of the three duchies of Parma,
Placentia and Guastalla; (2) that the plenipotentiaries
of Austria Russia Great Britain France and Prussia
had no power to determine the destiny of Tuscany
and Parma without the concurrence of the Spanish
plenipotentiary ; and (3) that the act included many
articles which had not been reported at the meetings
of the plenipotentiaries of the eight powers.” Mean-
while a new European alliance against Napoleon had
been formed, Sweden not joining because she was too
much occupied in her peninsula by the present of
Norway which had been made her against the will
of the Norwegian people, and Spain refusing her
accession because “the dignity of her crown and
the importance of the services which her subjects had
rendered to the European cause did not permit her
to accede to a treaty of alliance if she was not con-
sidered to be a principal party in it; if the accession
which was proposed to her was understood in that
sense, the king was ready to give it; otherwise he
would act in concert with the other powers so far
as concerned military operations, but when it came
to treating he would treat in his own name, and
would not consider himself to be comprised in
what the plenipotentiaries of the other powers might
stipulate”.

Short as was the campaign of Waterloo, several of
the smaller powers had taken part in it and all had
moved troops or at least incurred expense. Accord-

Ww, 7
98 INTERNATIONAL LAW. [cHaP.

 

ingly they claimed admission to the conferences for
settling the terms of peace. The four great allies
however informed them on roth August 1815 that
they did not think fit to comply with their desire, and
that they would communicate nothing until they
had agreed among themselves on the principles which
were to govern their relations with France and on the
conditions to be exacted from her. The treaty of
peace concluded on 20th November by France with
Austria Russia Prussia and England placed the
territorial renunciations of France at the disposal of
the other contracting parties, and stipulated that the
pecuniary indemnity which France agreed to furnish
should be paid to them. They, in advance of the
treaty, had determined the disposition of the ceded
districts by a protocol of 3rd November, and that
of the pecuniary indemnity by one of 6th November ;
and the smaller states submissively took the shares
of territory and money which were thus assigned to
them.

Such was the commencement of what during a
long succeeding period was described as the moral
pentarchy of Europe, pentarchy because France was
readmitted to it at the Congress of Aix-la-Chapelle
in 1818. It has been necessary to dwell on it in some
detail because the origin of a movement is usually
its most instructive part, and especially is that so when
we are tracing an authority the exercise of which
is veiled under legal forms, the necessary signatures
being usually obtained in the end without always
leaving an official trace of how they were. obtained.
In that respect the authority of the great powers
in Europe may be likened to that of the house of
commons in the British constitution: how much of
VIL. | THE POLITICAL INEQUALITY OF STATES. 99

 

real independence is implied by the concurrence of
the crown and the house of lords can only be known
from the history of earlier struggles: machinery is
apt to work smoothly when the power of its different
parts to resist has been tested and is known. For
a time the pentarchy was worked with great effect in
the interest of the principle of legitimacy’, but common
action in that direction was broken up through the
change made in the policy of England by Canning,
that made in the policy of Russia by the Greek in-
surrection, and that made in the policy of France
by the same insurrection and the revolution of 1830.
Still, in spite of dissensions between the great powers
which at times brought them to the verge of mutual
war, the skill of statesmen was able to preserve enough
of common action to impose on Holland and Belgium
the terms of their separation, and to deal with several
phases of the Eastern question. From 1848 the
pentarchy must be said to have altogether ceased to
exist, but the causes which determine the mutual re-
lations of large states and small ones within the same
political system lie deep in the nature of things, and
while Berlin in 1878 reproduced on a smaller scale
Vienna in 1814 and 1815, it was able to do so with
less friction because the controlling authority of the
great powers in congress was no longer novel, but
had sunk so far into European habits as to carry
moral as well as material weight. There can be little
doubt that for that reason it was easier for Russia to
submit to the treaty of San Stefano being cut down to
the treaty of Berlin, but our present subject is more
concerned with the attitude of the congress towards

1 See above, p. 58.
7—2
IOO INTERNATIONAL LAW. [ CHAP.

 

the smaller states. Servia and Roumania had been
semi-sovereign, with the power of entering into limited
foreign relations: their independence was recognised.
Montenegro had already been recognised as independent
by all the great powers except England and Turkey:
those powers also recognised its independence. The
boundaries of all three were modified, Servia and
Montenegro being enlarged and Roumania compelled
to submit to an exchange of territory, and in all three
it was provided that religion should be free and should
be no cause of incapacity. Greece was an independent
state of half a century’s standing: an enlargement
of her territory at the expense of Turkey was recom-
mended to the latter by the other six great powers’.
Yet neither Roumania Servia Montenegro nor Greece
was a party to the treaty of Berlin, nor was Greece a
party to the protocol of the congress recommending
the enlargement of her territory, nor was she a party
to the convention of 24th May 1881 by which the
seven great powers, Turkey being this time a party,
fixed the limits of the enlargement which she was
to receive. No doubt all these arrangements were
subsequently accepted by the states concerned, and
what was treated as an acceptance of her new limits
had been obtained from Greece before the convention
of 24th May 1881 was signed, but was not recited
in the convention. Still, when no such acceptances
were thought to be even formally necessary to a decla-
ration of the will of Europe on the several matters, we
can appreciate what political inequality is compatible
in the European system with legal equality. The

1 Six, because Italy had been added since the days of the pentarchy:
Germany had taken the place of Prussia,
Vit. | THE POLITICAL INEQUALITY OF STATES. IOI

 

fact is not one to be condemned. It may prove to be
a step towards the establishment of a European govern-
ment, and in no society can peace and order be per-
manently enjoyed without a government. But the
fact is one which the student of international law is
bound to note, whatever development may await it.

The Equality of States in Civilisation, and the
Protection of Subjects abroad.

Throughout Europe and America, if we except
Turkey, habits occupations and ideas are very similar.
Family life, and social life in the narrower sense of
that term, are based on monogamous marriage and
respect for women. The same arts and sciences are
taught and pursued, the same avocations and interests
are protected by similar laws, civil and criminal, the
administration of which is directed by a similar sense
of justice. The same dangers are seen to threaten the
fabric of society, similar measures are taken or dis-
cussed with the object of eluding them, and the same
hopes are entertained that improvement will continue
to be realised. The literature which is occupied with
the life and destiny of man, which entertains him and
expresses his most intimate feelings, is read every-
where from whatever country it emanates. There are
differences of detail, but no one who has had a liberal
education feels himself a stranger in the houses, schools,
law courts, theatres, scarcely even in the churches, of
another country. Not only is there a great circulation
of people regardless of territorial boundaries, but the
native subjects of one state travelling or resident in
another do not form a class apart; they mix freely
with the population, and usually feel themselves safe
102 INTERNATIONAL LAW. [cHAP.

 

under the local administration of justice. All this is
summed up by saying that Europe and America have
a common civilisation.

Turkey and Persia, China, Japan’, Siam and some
other countries have civilisations differing from the
European, and so far as they are not Mahometan from
those of one another. The Europeans or Americans
in them form classes apart, and would not feel safe
under the local administration of justice which, even
were they assured of its integrity, could not have the
machinery necessary for giving adequate protection to
the unfamiliar interests arising out of a foreign civilisa-
tion. They are therefore placed under the jurisdiction of
the consuls of their respective states, pursuant to con-
ventions entered into by the latter with the local
governments. The consuls are allowed to dispose of
small forces, but the maintenance of their jurisdiction
must depend in the long run on the support which the
local governments give them pursuant to the conven-
tions. But the latter could not furnish that support if
each of the countries in question did not possess an old’
and stable order of its own, with organised force at
the back of it, and complex enough for the leading
minds of the country to be able to appreciate the
necessities of an order different from theirs. Such
countries therefore must be recognised as_ being
civilised, though with other civilisations than ours.

The international law with which we are concerned
having arisen among the former of the two classes of
populations here contrasted, it is based on the posses-
sion by states of a common and in that sense an equal

1 J write of facts as they stand, without expressing any opinion on the

desire felt in Japan to be freed from the consular jurisdiction as having
become unnecessary there.
VII. | THE EQUALITY OF STATES IN CIVILISATION. 103

 

civilisation. The case of Turkey must in this part of
our subject be left out of sight, because of the anoma-
lous position of that empire, included on account of its
geographical situation in the political system of Europe,
but belonging in other respects rather to the second
group of contrasted populations. She may benefit by
European international law so far as it can be extended
to her without ignoring plain facts, but her admission
to that benefit cannot react on the statement of the
law, which is what it is because it is the law of the
European peoples. The common civilisation then,
explained as it has here been explained, contains the
principle that the institutions, whether of government
or of justice, which the inhabitants of a state find suit-
able to themselves, must normally be accepted as
sufficient for the protection of foreigners among them.
Those foreigners are subject to the local courts and
authorities, and not to separate jurisdictions, and their
own governments will not, normally, interfere for their
protection so long as they enjoy equal treatment with
natives.

Van Bokkelen, a citizen of the United States, was
imprisoned for debt in Hayti, and if he had been a
Haytian could have obtained his release by making an
assignment of his property in favour of his creditors
(cessto bonorum). There appears to have been some-
thing in the laws of Hayti, I do not clearly gather
what, which probably laid him under no express in-
capacity to do this, but at least made it impossible for
him as a foreigner to do it. The United States inter-
fered and obtained his release from prison, Mr Bayard,
secretary of state, writing that ‘‘to close to an alien
litigant some given channel of recourse open to a
native, without leaving open some equivalent recourse,
104 INTERNATIONAL LAW. [ CHAP.

 

1»

is a denial of justice’.” Reference was also made to a
treaty, but it was not clear on the point: any one who
questioned the principle of international law would
also have questioned the interpretation of the treaty.
The principle however is clear: there must be no un-
fair discrimination against a foreigner.

The example also illustrates how, in spite of the com-
mon civilisation, cases arise in which unfair discrimina-
tion is attempted, or in which other circumstances arise
to prevent the normal rule of non-interference applying.
The civilisation has grown up by degrees, and popula-
tions have become included in it among whom it did
not originate. It may not everywhere have adequately
permeated institutions and habits of action. Even
where its normal reign is assured, political religious or
other excitements may rouse the passions to break
through the crust which has been formed over them.
If, from whatever cause, the security promised by the
common civilisation is flagrantly wanting, the fact
must override the presumption. ‘Justice,” Vattel says,
“is denied, 1°, by refusing to hear your complaints or
those of your subjects, or to admit the latter to estab-
lish their right before the ordinary courts ; 2°, by inter-
posing delays for which no good reasons can be given,
and which are equivalent to a denial or still more
ruinous ; 3°, by a manifestly unjust and partial judg-
ment. But the injustice must be very evident and
palpable’.” It must be evident and palpable to the
general consensus of the part of the world which pos-
sesses European civilisation, and not turn on the
omission of some security to an accused person or a

1 Wharton’s Digest of the International Law of the United States,
§ 230, vol. 2, p. 643.
2 Le Droit des Gens, liv. 2, ch. 18, § 350.
vir. | THE EQUALITY OF STATES IN CIVILISATION. 105

 

litigant, such as trial by jury, which does not enter into
the common law of that part of the world.

When the law of a country, such as it is, is violated
towards foreigners, there is in ordinary circumstances
a right of interference on their behalf. The principle
of equality of treatment with natives can scarcely
operate, because, if the law of the land were violated
towards all alike, there would not exist anything that
could claim to be recognised as a civilised government.
But in any country disturbances may arise so serious as
to make it necessary for the government to strain the
law with a view to restore order, either in pursuance
of some constitutional power vested in it, or in reliance
on a legislative indemnity to be procured when possible.
What is to be said if in such a case the law is violated
towards foreigners just as towards natives, without
greater harshness than in most countries of European
civilisation the emergency would be held to warrant,
not imprisoning any one without reasonable ground
of suspicion, and not punishing any one without reason-
able proof of guilt? This question was much dis-
cussed at the time of the civil war in the United States,
in connection with the suspension of the hadeas corpus
by president Lincoln as a measure applicable equally
to citizens and to foreigners ; and it was complicated
by the further discussion, in the United States them-
selves, whether that suspension under the so-called war
power was within the constitutional right of the pre-
sident. Earl Russell, then British secretary of state
for foreign affairs, ultimately acquiesced in the sus-
pension as regarded British subjects, having regard
to the quantity of opinion which there was in the
States in favour of its being constitutional, and being
unable to say that the detentions under it were without
106 INTERNATIONAL LAW. [ CHAP.

 

reasonable grounds of suspicion. The strongest case
was perhaps that of Rahming, in whose favour the
Supreme Court issued an attachment against the
military commandant who, under orders from the
executive, refused to obey the writ of adeas corpus.
Mr Hall says of the case that “a sovereign, if bound
to abandon his subjects to any moderately reasonable
law, however hardly it may press on them, is not bound
to allow them to be treated in defiance of law, even
though they may be so treated in common with all
the other inhabitants of the territory in which they are.
In the particular case the authority of the Supreme
Court” [as to the law] “was undoubtedly superior
to that of the executive’.” With great deference, I
think that in the circumstances England had nothing
to do with the constitutional question. An emergency
had arisen which in most European and American
countries would be met by an assumption of power if no
reserve of constitutional power existed with which to
meet it, and it therefore seems impossible that there
should be any general consensus of the international
society condemning that mode of meeting it. And the
mode would be condemned, very probably to the
extent of frustrating its employment, if its application
to foreigners in the country gave their governments
any other right than to see that they were treated on
an equality with natives, without undue harshness, and
with reasonable grounds in the case of each person.
In the instance furnished by the American civil war,
the assumption of power by president Lincoln was
approved by whatever in the northern states could
claim to represent those states towards England, and

1 Treatise on International Law, § 87, 3rd edn., p. 277.
VII. | THE EQUALITY OF STATES IN CIVILISATION. 107

 

it was scarcely our right to inquire whether that
approval was the approval of the majority, or whether
it arose from aconviction of the constitutionality or of
the necessity of the course adopted. If the Supreme
Court was correct, the result would be that the presi-
dent, at the worst, was in the position of a successful
striker of a coup a’état, and international recognition is
not denied to the acts of strikers of coups a’état whose
power is de facto established.

A very important question is whether the normal
rule of non-interference for the protection of subjects in
foreign countries applies to the protection of the
interests which they have under contracts with foreign
governments. Here a distinction seems to exist between
the case of bonds forming part of a public loan on the
one hand, and private contracts, such as those for con-
cessions or for the execution of works, on the other
hand. Interests of the latter kind usually enjoy regular
protection by law, notwithstanding that the govern-
ment is the defendant against whom relief is to be
sought. There is a petition of right, a court of claims,
or an appropriate administrative tribunal before which
to come. The case is not essentially different from
any other arising between man and man. The foreigner
who has contracted with the government has not
elected to place himself at its mercy, and the normal
rule of equal treatment with natives requires that he
shall have the full benefit of the established procedure,
while if in a rare instance there is no such established
procedure, or it proves to be a mockery, the exceptional
rule of protecting subjects against a flagrant denial of
justice also comes in. But public loans are contracted
by acts of a legislative nature, and when their terms are
afterwards modified to the disadvantage of the bond-
108 INTERNATIONAL LAW. [cHap.

 

holders this is done by other acts of a legislative nature,
which are not questionable by any proceeding in the
country. If therefore the normal rule of equal treat-
ment with natives be looked to, the foreign bond-
holder has no case unless he is discriminated against.
And if the exceptional rule of protecting subjects
against a flagrant denial of justice be looked to, the
reduction of interest or capital is always put on the
ground of the inability of the country to pay more—a
foreign government is scarcely able to determine
whether or how far that plea is true—supposing it to
be true, the provisions which all legislations contain
for the relief of insolvent debtors prove that honest
inability to pay is generally regarded as a title to some
consideration—and the holder of a bond, which in case
of default was never otherwise enforceable than through
the intervention of his government, is trying, when he
seeks that intervention, to exercise a different right
from that of a person whose complaint is the gross
defect of a remedial process which by general under-
standing ought to exist and be effective. The one
would make his government his debt-collector, the
other stops far short of that point. Hence the pro-
priety of intervention is not questioned when justice is
denied by a government on its private contracts ; it is
treated as a matter of expediency whether in a par-
ticular case the intervention should be granted to the
claimant. But the common practice is to refuse inter-
vention to the sufferers by defaults on public loans,
unless the defaulting government presumes to treat its
internal and external debts on terms of inequality un-
favourable to the latter. It must however be men-
tioned that Mr Hall, in opposition to the doctrines
here supported, sees no difference in principle between
vit. | THE EQUALITY OF STATES IN CIVILISATION. 109

 

the private contracts and public loans of a government,
though he admits the difference in practice relating to
them. And he quotes Lord Palmerston and Lord
Salisbury as maintaining the view that the right of
intervention on behalf of bondholders is unquestionable,
and that its exercise ought to depend on the balance of
considerations, the amount of loss in the particular
instance being weighed against the general expediency
of discountenancing hazardous loans. On the other
hand, the accepted principles of the United States
seem to be in accordance with the doctrines here sup-
ported’.

1 Treatise on International Law, § 87, 3rd edn., pp. 277—280.

2 “What the United States demand is that in all cases where their
citizens have entered into contracts with the proper Nicaraguan authorities,
and questions have arisen or shall arise respecting the fidelity of their
execution, no declaration of forfeiture, either past or to come, shall possess
any binding force unless pronounced in conformity with the provisions of
the contract, if there are any; or if there is no provision for that purpose,
then unless there has been a fair and impartial investigation in such a
manner as to satisfy the United States that the proceeding has been just
and that the decision ought to be submitted to. Without some security
of this kind, this government will consider itself warranted, whenever
a proper case arises, in interposing such means as it may think justifiable
in behalf of its citizens who may have been or who may be injured by
such unjust assumption of power.” Mr Cass, secretary of state, 25th July
1858; in Wharton’s Digest of the International Law of the United States,
§ 232, vol. 2, p. 661. “There have been instances however in which our
ministers have received instructions of the character proposed [to collect
foreign bonds (Wharton)] to the extent of permitting them to accept pay-
ment from a foreign government on account of the principal or interest of
its obligations. Such permission however was preceded by the assumption
that the foreign government was ready and willing either to make the
payment or to negotiate with its creditor in such connection, and where
the intervention of a consular or diplomatic agent of the creditor’s country
was a convenience to both.” Mr Frelinghuysen, secretary of state,
12th January 1884; ib. p. 662,
CHAPTER VIII.

INTERNATIONAL RIGHTS OF SELF-PRESERVATION.

Self-preservation as an alleged Primary Right.

Wuen a fully sovereign state employs force in its
own territory, or on the high seas on board a ship
which carries its flag as belonging to itself or to its
subjects, or when by its laws it threatens its subjects
with punishment on their return for their acts com-
mitted abroad, its independence is internationally its
sufficient warrant. For the sovereignty of a state ex-
tends over its subjects, over its territory, and over the
ships which carry its flag on the high seas; and full
sovereignty is independence’. But when a state em-
ploys force in the territory of another state, or on the
high seas on board a ship which carries the flag of
another state as belonging to it or to its subjects—or
when it attempts by threats to restrain the freedom of
action of another state within the territory of the latter,
or that of the subjects of another state elsewhere than
within its own territory or on the high seas under its
own flag—the state so acting or threatening must find
its justification in some other principle.

1 See above, p. 87.
VIII. | SELF-PRESERVATION ALLEGED PRIMARY RIGHT. III

 

The principle commonly put forward on such occa-
sions is that of self-preservation, which writers on
international law often class among their fundamental,
primitive, primary or absolute rights. It is no doubt
a primitive instinct, and an absolute instinct so far as
it has not been tamed by reason and law, but one
great function of law is to tame it’. Accordingly law
does not permit us to ward off danger from ourselves
by transferring it to an innocent person. When a ship-
wrecked crew is in danger of starvation, it is not lawful
for them to kill and eat one of their number, however
pressing the necessity, Liability to suffer hurt,
whether in person, in property or in rights, and whether
by sentence of law or by private action which the law
permits, presupposes a duty violated by the person
who is to suffer it, When a small injury is inflicted in
obedience to an almost irresistible impulse, the law
may overlook it, but in principle we may not hurt
another or infringe his rights, even for our self-preser-
vation, when he has not failed in any duty towards us,

It is easily seen that this must be so between states
as well as between natural persons. That conclusion
is necessary for those who regard states as technical
persons for whom and for natural persons legal princi-
ples are identical, while if we look at the substantial
difference between a state and a natural person, we
shall find that the case of the former is at least not
more favourable than that of the latter for pushing self-

1 See above, p. 5.

2 Queenv. Dudley and Stephens, 14 Q. B. D. 273, decided unanimously
by Lord Chief Justice Coleridge, Justices Grove and Denman, and
Barons Pollock and Huddleston. Their lordships also stated that they
had Justice Stephen’s authority for repudiating an inference in favour of
the contrary opinion which had been drawn from.some passages in
his writings ; p. 286.
T12 INTERNATIONAL LAW. [ CHAP.

 

preservation to an extreme. In the case of a state it
would be difficult to say more in support of the right
than what Wolff said, that a state ought to preserve
and perfect itself as an association of its citizens in
order to promote their common good’. But although
it is certainly indispensable for the welfare of men that
they should be associated in some state tie, it does not
follow that their welfare imperatively requires the
maintenance in its actual limits, and with resources
entirely unimpaired, of the particular state tie in which
they happen to be engaged. Nor can the international
society be quoted as having consented to an absolute
right of self-preservation. A society can only consent
to rules: the principles in which their justification is
sought must be left to appreciation by individual men.
But since the cases in which the right of self-preserva-
tion is alleged are precisely those in which it would
clash with the right of independence, which is equally
asserted by the advocates of abstract rights, it follows
that no rules, but confusion, must result from recognis-
ing either right as absolute.

Nevertheless the view which adopts primary rights
as the foundation of law has struck such deep root
during the last century and a half, that the tendency
has prevailed more and more to understand droz¢t or
jus, when not expressing a particular right, as express-
ing a body of rights rather than a body of law. So
while the predominant meaning of /e drozt naturel or
jus naturale, down to the end of the seventeenth cen-
tury, seems to have been what we call in English
natural law, that is a body of rules at one time believed
to be ascertainable and primary, those terms seem now

1 See above, p. 71.
VIII. | SELF-PRESERVATION ALLEGED PRIMARY RIGHT. I13

 

to have acquired for their predominant meaning that of
a body of rights believed to exist by nature, and to
secure which is supposed to be the primary function of
law. In the same spirit M. Pillet, in a remarkable
recent article, contends that the rules prevailing be-
tween states, so far as they are founded on certain
primary rights which he regards as extending beyond
the international society, are treated only by a defect
of method as belonging to /e droit des gens or le drott
enternational, and that what they really belong to is /e
drowt commun del humanité’. Those who have followed
me thus far will be aware that I maintain the definite
line which in England has always been drawn round
the notion of law. The considerations in which the
notion of primary rights is founded cannot indeed be
ignored, but their proper place is in that distributive
justice which ought to govern in questions, whether
national or international, de lege ferenda. Such rights
are only moral till the law recognises them, and _ be-
tween moral and legal rights there is a grave practical
difference. And when a term, be it dvozt or 7us, which
is the only one available for describing a body of law?,
becomes mixed up with the notion of rights, it is espe-
cially international relations that suffer, because they

1 Le Drott International Public. Ses éléments constitutifs, son
domaine, son objet. In the Revue Générale de Droit International Public,
no. I.

2 The /égislation of a country is a term‘often used to describe the
whole body of its law, whether arising from express legislation or not,
but there is always a danger of its being confounded with express
legislation, and it is not used to describe the whole body of international
law. When a body of law is codified it stands out unmistakably as
positive law, clear of the notion of right. And the want in French of
a term appropriated to positive law irrespective of the form in which it
exists, and at the same time clear of the notion of right, powerfully aids
the mistaken view that a body of law cannot be fixed without codification.

w. 8
TIi4 INTERNATIONAL LAW. [ CHAP.

 

do not present facilities for ascertaining the true or
positive law equal to those which exist within a state.
We will therefore build nothing on a primary right of
self-preservation, but inquire what are the limits which,
for the better security of states all round, our interna-
tional society has set to the inviolability of each. Thus
we shall learn the actual international rights of self-
preservation.

Rights of Self-preservation actually allowed by
International Law.

A state may not attack another, threaten to attack
another, or make preparations from which an intention
to attack another may be reasonably inferred. The same
prohibitions extend to the subjects of a state. These
indeed can seldom undertake any thing against another
state as a whole, although filibustering expeditions
directed against weak states are not unknown, but the
interference of foreigners is common where a state is
divided by faction, and it always bears in law the
character of an attack on the state as represented by
the government which the interfering persons’ own
state recognises.

So far as a state attacked or threatened cannot
defend itself by measures taken within the physical
limits of its sovereignty, namely its territory and the
ships carrying its flag, its normal duty is to seek redress
from the state at fault or the subjects of which are at
fault ; and such redress may include reparation for the
past as well as security against the repetition of the
offence. But it often happens that the injury or the
danger will not admit of the delay which the normal
course of action would involve. If within a state it is
VIII. | RIGHTS OF SELF-PRESERVATION ALLOWED. T15

 

a matter of daily necessity that a citizen should repel
an actual or avert a threatened attack by his own
force, because the police cannot be present everywhere,
much more must a corresponding necessity be liable to
arise between states, an international police being
wholly wanting. In such cases a state may take its
defence into its own hands, even to the extent of em-
ploying force within the territory of another state, on
condition of limiting its abnormal action to what the
emergency requires.

Whatever right of action outside the physical limits
of its own sovereignty is allowed to a state by these
rules may be described as a right of self-preservation.
And whatever right of action within the physical limits
of its own sovereignty is left to a state by the same
rules may be described as the measure of the uses
which, internationally, it may make ‘of its indepen-
dence. Its independence is not itself thereby de-
feated, because the prohibition against attacking or
threatening another state does not place it in a position
of dependence on any other state in particular, and the
international society is too ill organized for subjection
to its rules to be described as dependence on the society
at large.

To illustrate these rules two cases may be quoted,
one where the right of self-preservation given by them
was exercised within foreign territory, the other where
the action was taken on board a ship flying a foreign
flag on the high seas. The first “happened during
the Canadian rebellion of 1838”. I use Mr Hall's
excellent summary of the facts. “A body of insurgents
collected to the number of several hundreds in American
territory, and after obtaining small arms and twelve
guns by force from American arsenals seized an island

8—2
116 INTERNATIONAL LAW. [ CHAP.

 

at Niagara within the American frontier, from which
shots were fired into Canada, and where preparations
were made to cross into British territory by means of
a steamer called the Caroline. To prevent the crossing
from being effected, the Caroline was boarded by an
English force while at her moorings within American
waters, and was sent adrift down the falls of Niagara...
There was no choice of means, because there was no
time for application to the American government ; it
had already shown itself to be powerless, and a regi-
ment of militia was actually looking on at the moment
without attempting to check the measures of the in-
surgents’”. The United States complained of the
violation of territory, and declared that it lay on
England “to show a necessity of self-defence, instant,
overwhelming, leaving no choice of means and no
moment for deliberation...also that the local authorities
of Canada, even supposing the necessity of the moment
authorised them to enter the territories of the United
States at all, did nothing unreasonable or excessive,
since the act justified by the necessity of self-defence
must be limited by that necessity and kept clearly
within it”. This was a correct statement of the law,
except so far as concerns the emergency’s leaving no
moment for deliberation, which is an unnecessary con-
dition if the emergency is such that deliberation can
only confirm the propriety of the act of self-preserva-
tion. But the case was within the substance of the
conditions laid down, and the incident was allowed to
drop. Mr Hall well remarks that “the government
of the United States must have felt that it would have
been placed in a position of extreme gravity if the

1 Treatise on International Law, 3rd edn., p. 267.
vuIt. | RIGHTS OF SELF-PRESERVATION ALLOWED. 117

 

English authorities had allowed things to take their
course, and had then held it responsible for con-
sequences to the production of which long continued
negligence on its part would have been largely contri-
butory”. The observation points out the advantage
which accrues, even to the state of which the territory
is violated, from the permission of proper acts of self-
preservation. But the threatened attack on Canada
by citizens of the United States, for whom their
country was responsible, was sufficient, even had there
been no negligence on the part of their government,
to constitute the fault which, in conjunction with the
emergency, justified the act.

The other case is that of the Virginius, a ship
belonging to Cuban insurgents but which had obtained
a United States register from the proper authority
by a fraudulent affidavit. She was captured by the
Spaniards on the high seas, while on her way under
the American flag to assist an insurrection then on
foot in Cuba. Many of those on board, including
certain American citizens and some Englishmen who
formed part of the crew, were tried by court martial
and put to death. The United States asserted that
the Virginius had a right to the American character
against all the world except themselves, but having
regard to the fraud in obtaining their register they
accepted her surrender without any salute to their flag
by way of reparation for her capture, Spain however
undertaking to proceed against the persons who had
offended their sovereignty. It does not seem to have
been discussed between the two governments whether,
even admitting the American character of the Virginius,
her capture was not authorised on the ground of self-
preservation ; and perhaps the distance outside Spanish
118 INTERNATIONAL LAW. [cHap.

 

territorial waters at which she was taken would have
made it difficult to sustain that plea. But I cannot
doubt that such a plea may be good in a proper case,
for the mischief might be irremediable otherwise, and
a ship on the high seas can surely enjoy no greater
immunity than national territory itself. Shooting the
Americans and Englishmen could not be justified if
the Virginius was to be regarded as American, for in
that case they had not come within Spanish jurisdiction,
whatever offence they may have committed. If the
capture of the ship was justifiable, and they had been
killed in resisting it, it would have been a different
matter and they must have taken their chance; but as
soon as they were prisoners they were incapable of
further mischief, and the emergency was at an end so
far as they were concerned. And although Spanish
jurisdiction over persons on board a Spanish ship
cannot be denied, the Virginius could scarcely be
regarded as a Spanish ship as against any sailors who
might have taken service in her without a knowledge
of her true ownership, or at least such jurisdiction
ought in that case to have been exercised with the
greatest moderation. The British government did
not complain of the seizure of the Virginius or of the
detention of her crew, but said that ‘it was the duty
of the Spanish authorities to prosecute the offenders
in proper form of law, and to have instituted regular
proceedings on a definite charge before the execution
of the prisoners”. The United States obtained pe-
cuniary reparation for the families of their executed
citizens’.

1 See Wharton’s Digest of the International Law of the United States,
§ 327, and Hall’s Treatise on International Law, 3rd edn., pp. 271 —5.
VIII. | RIGHTS OF SELF-PRESERVATION ALLOWED. 119

 

The rule as it has been here stated requires attack,
the threat of attack, or preparations from which an
attack may be reasonably inferred, before a right of
self-preservation arises. But what if the absence of all
these be admitted, and yet a state will manifestly be
unable of itself to prevent a hostile use being made of
its territory or of its resources? May not the state
against which such hostile use is manifestly impending
transgress the foreign boundary in order to avert the
consequence it foresees? Probably no one will doubt
that it may. Suppose two strong powers to be at war,
and a weak power bordering on them both to be
neutral. And suppose that one of the belligerents has
sure information that a corps of the other, quite beyond
the ability of the neutral to resist, is on march to obtain
a strategic advantage by violating the territory of the
latter. It can hardly be said that the belligerent against
whom the blow is aimed may not anticipate it on the
neutral’s territory. Not that even in such a case we
ought to admit a right of self-preservation without fault
on the part of the state of which the rights are in-
fringed. By that admission we should abandon all
jural foothold. But the case really comes within the
doctrine laid down, by virtue of the jural principle that
every one must be presumed to intend the necessary
consequences of his actions. When a state is unable of
itself to prevent a hostile use being made of its terri-
tory or its resources, it must either be deemed to allow
proper measures of self-preservation to be taken by the
state against which such a use is manifestly impending,
or it must be deemed to intend the hostile use as being
the necessary consequence of refusing the permission.
This principle covers the seizure of the Danish fleet by
England after the treaty of Tilsit in 1807, when there
120 INTERNATIONAL LAW. [ CHAP.

 

was irresistible reason for believing that Napoleon and
Alexander would have compelled, by force if necessary,
its addition to the naval armaments arrayed against
them. The act of self-preservation must in this as in
all other cases be limited to what is strictly imposed by
the emergency, and in the instance cited England
offered to Denmark the most solemn pledge that, on
the conclusion of a general peace, the fleet of which the
surrender was asked should be restored in the same
condition and state of equipment as when received.

Lhe Balance of Power.

In order to bring out fully the scope of the above
rules it is necessary to draw attention to what they do
not include as well as to their affirmative contents. A
state has no right to security against mere fear. It has
no right to prevent another state’s acquiring power of
which it can only be said that it may be used to the
injury of neighbours, when there is neither an express
threat so to use it nor any conduct from which an in-
tention so to use it can be reasonably inferred, and
when the power which causes the fear merely results
from the growing population and wealth of the state in
question. The apprehensions which may be excited by
the annexation of territory do not fall within the
subject which we are now considering. Every re-
arrangement of the map of Europe is regarded as of
general interest to all the members of the European
political system, and any of them may claim to have a
voice in it. And on similar principles general opinion
in the United States claims a voice in American
arrangements beyond the limits of the great republic.
But putting the case of territorial aggrandisement aside,
VIII. | THE BALANCE OF POWER. 121

 

the law may be taken to be that the natural growth of
a state in power, and even the increase of its armaments
in a fair proportion to its population and wealth and to
the interests which it has to defend, gives no special
rights of self-preservation to its neighbours so long as
an intention to misuse its power cannot be imputed to
it on sufficient evidence. The uses of independence
can be restricted only for the fault of the state which
suffers the restriction, or of those for whom it is
answerable as being its subjects.

The place which the doctrine of the balance of
power has held in the international relations of Euro-
pean states, and which has been accorded to it by
accredited writers on international law, may occasion a
doubt whether the law on the subject has always since
the Peace of Westphalia been such as it now is. But
the legal significance of that doctrine must not be
hastily judged. The times are not remote when inter-
national practice was so bad that an intention to abuse
power might correctly be inferred on slighter evidence
than would now be necessary. Again, when inter-
national politics were largely the personal and family
affairs of monarchs, the combination of the power of
two states by marriage, without either state being
merged in the other or its frontiers enlarged, presented
a question of general interest not altogether out of
comparison with that which was presented bya case of
territorial aggrandisement. And when the merger of
crowns arises by marriage or inheritance, the resulting
territorial aggrandisement may be of as serious conse-
quence to the European political system as if it arose
from conquest, and it would probably be thought even
now that rules suited to the descent of property cannot
oust the authority of that system over the rearrange-
122 INTERNATIONAL LAW. [cHaP.

 

ment of its map. It is not meant to justify all the wars
which have been waged for maintaining the balance of
power, or all the terms in which that balance has been
expressed as a principle of international law, but it may
well be doubted whether it was ever held that any
special right of self-preservation accrued to a state
from the internal growth of its neighbour, without the
fault of the latter in act or intention.

Alleged right of Self-preservation against
the Contagion of Revolution.

While pointing out what the rules concerning self-
preservation do not permit, a caution must be given
against another doctrine of a more insidious character
than any misconception about the right to a balance
of power, the doctrine that the government of a state,
on its own account or as representing its constitution,
has any right of self-preservation against the con-
sequences which may follow from the principles of
government asserted in another state, when no attack
is made threatened or intended on the state itself or
on its internal freedom of action.

The international society to which we belong is
not one for the mutual insurance of established govern-
ments, though from time to time attempts have been
made to work it as such. The most memorable of
those attempts is that which during a few years after
the Congress of Vienna was made by the pentarchy
to rule Europe in accordance with the principle of
legitimacy. In the circular despatch which on the
occasion of the insurrection at Naples the courts of
Austria Russia and Prussia dated from Troppau,
8th December 1820, they said that “the powers have

1 See above, p. 58.
Vill. | SELF-PRESERVATION AGAINST REVOLUTION. 123

 

exercised an incontestable right in occupying them-
selves with taking in common measures of security
against states in which the overthrow of the govern-
ment by a revolt, even could it be considered only as
a dangerous example, must have for its consequence a
hostile attitude against all constitutions and legitimate
governments. The exercise of that right was still
more urgently necessary when those who had placed
themselves in that situation sought to extend to their
neighbours the misfortune which they had brought on
themselves, and to propagate revolt and confusion
around them. Such a position and conduct is an
evident infraction of the pact which guarantees to all
European governments, besides the inviolability of
their territory, the enjoyment of peaceable relations
excluding all encroachment on the rights of one an-
other ”.

Lord Castlereagh’s answer was dated 19th January
1821. He repudiated the interpretation which con-
verted the treaties between the powers into a pact
between their governments, and he refused to connect
England with the intervention in Naples on which
Austria had decided. But he added: “it should be
clearly understood that no government can be more
prepared than the British government is to uphold
the right of any state or states to interfere, where their
own immediate security or essential interests are
seriously endangered by the internal transactions of
another state. But as they regard the assumption
of such right as only to be justified by the strongest
necessity, and to be limited and regulated thereby,
they cannot admit that this right can receive a general
and indiscriminate application to all revolutionary
movements, without reference to their immediate bear-
124 INTERNATIONAL LAW. [ CHAP.

 

ing upon some particular state or states, or be made
prospectively the basis of an alliance. They regard
its exercise as an exception to general principles of
the greatest value and importance, and as one that
only properly grows out of the circumstances of the
special case; but they at the same time consider that
exceptions of this description never can, without the
utmost danger, be so far reduced to rule as to be
incorporated into the ordinary diplomacy of states, or
into the institutes of the law of nations*”.

This language altogether failed to repudiate inter-
vention for self-preservation against the mere contagion
of principles. The true ground was taken by Canning
on the occasion of the French intervention against the
government which had been established by insurrection
in Spain. In his despatch of 31st March 1823 to the
British ambassador at Paris Canning wrote: ‘No
proof was produced to his majesty’s plenipotentiary
of the existence of any design on the part of the
Spanish government to invade the territory of France,
of any attempt to introduce disaffection among her
soldiery, or of any project to undermine her political
institutions ; and so long as the struggles and disturb-
ances of Spain should be confined within the circle of
her own territory, they could not be admitted by the
British government to afford any plea for foreign
interference. If the end of the last and the beginning
of the present century saw all Europe combined against
France, it was not on account of the internal changes
which France thought necessary for her own political
and civil reformation, but because she attempted to
propagate first her principles, and afterwards her

1 Annual Register, vol. 62, part 2, p. 738.
vu. | SELF-PRESERVATION A GROUND OF JURISDICTION. 125

 

dominion, by the sword’”. The right of intervention
in a foreign state, with the motive of self-preservation
against the effects of its internal troubles, was here
put on its true basis and with its true limits. Those
limits have not always been since observed, but at last
they are generally admitted.

Self-preservation as a ground of Criminal
Jurisdiction.

The independence of a state within its territory
appears to carry with it the exclusive authority over
the actions of all persons within its territory, the
exclusive decision of what they shall be free or not
free to do there. This refers to the criminal law, and
has little bearing on that civil branch which is called
private international law*. There we mostly deal with
what men do in the exercise of that liberty which is
left to them through the absence of interference by
the criminal law of the place where they are, as in
marrying, contracting, making a will and otherwise ;
and we deduce the consequences of such acts with
reference to the civil laws of the countries which they
concern. For example, a marriage is valid every-
where if celebrated in the form required by the law
of the place of celebration, and if the parties are
capable of contracting it according to the law of the
state to which they are subject, or of their domicile,
the latter being a point on which there is not as yet
a full agreement. Sometimes, even in private inter-
national law, the civil consequences have to be
considered which flow from a criminal act, as, for

1 Annual Register, vol. 65, p. 141*.
2 See above, p. 9.
126 INTERNATIONAL LAW. , [CHaP.

 

example, where an act is both a crime and a civil
wrong giving a right to damages. But what we are
here concerned with is only the criminal side of acts,
and the independence of a state with regard to its
territory would seem to be violated if a foreign power
presumed to restrict the liberty of men on its soil by
denouncing penalties for acts done there with the
license of the local law, even if the enforcement of
such penalties was postponed till the persons to be
affected by them came within the territorial limits of
the foreign authority.

On the other hand, a state is a society of men over
whom as well as over its territory its sovereignty
extends; the acts of its subjects, wherever done, may
affect the population with which they have a continuing
tie and among which they are likely to return ; and the
independence of the state with regard to its subjects
would seem to be violated if a foreign power stood in
the way of its control over their acts, even though done
abroad, when the penalties by which such control was
to be made effectual were only to be enforced in their
home.

The latter principle is allowed to prevail. Foreigners
in a country are subject to two sovereignties, each of
which may restrict their liberty by the provisions of its
criminal law. They are subject to the local criminal
law just as native citizens are, and they are subject to
such criminal enactments as the law of their own coun-
try may apply to its people abroad, on condition that
no attempt is made to enforce the latter until they come
within the physical limits of their home sovereignty, its
territory and its ships. England has acted on this
doctrine by legislation which began as early as the
reign of Henry the eighth, and British subjects are
VIII. | SELF-PRESERVATION A GROUND OF JURISDICTION, 127

 

now punishable in the British dominions for many
grave offences committed in foreign countries.

But most countries other than England and the
United States apply more or less of their criminal
legislation not only to the acts of their subjects but
also to those of foreigners in foreign countries, always
under the condition that its enforcement can only take
place within the physical limits of their respective
sovereignties. The Institute of International Law
adopted at Brussels in 1879 by 19 votes against 7,
and reaffirmed at Munich in 1883 by a large majority,
a resolution containing a principle on which this may
be supported. ‘‘Every state has the right to punish
acts committed even out of its territory, and by foreigners,
in violation of its penal laws, when those acts attack
(constituent une atteinte d) the social existence of the
state in question and endanger its security, and are not
provided against by the penal law of the country on
the territory of which they have taken place.” The
principle thus invoked is that of self-preservation, but
not as an abstract and absolute right. A right of self-
preservation is allowed by the resolution where the
penal law of the locus delicti does not prohibit the
noxious act, but, where such prohibition is forthcoming,
the state which is threatened is not allowed to supple-
ment a sanction which it may deem insufficient. I
opposed even this moderate resolution, observing that
in criminal matters territorial competence and personal
competence are justified by the duty of knowing the
laws of the country where you act or to which you
belong, but that no one is bound to know the laws of a
foreign country, yet the doctrine maintained would

1 Annuaire del Institut du Droit International, vol. 3, pp. 276—281 ;
vol. 7, pp. 151—157. Zableau Général, 1873—1892, p. 100.
128 INTERNATIONAL LAW. [ CHAP, VIII.

 

impose on writers and speakers the necessity of know-
ing those of all the countries which their words may
have reached and which they may afterwards visit.
The peace of the world would be better preserved by
resorting to diplomatic redress for attacks made ona
state by foreigners abroad, than by legislation of so
irritating a character. And Mr Hall has said of the
resolution in question that under it “ precisely the class
of acts remains subject to exceptional jurisdiction which
there is most danger in abandoning to it. Probably
as between civilised states political acts are the only
acts, satisfying the description, which would not be
punishable by the law of the state where they are com-
mitted. The question presents itself therefore whether
self-preservation is really involved to so serious an
extent as to override the rights of sovereignty. It
would be rash to say that it never is so deeply involved,
but it is not rash to say that the occasions are rare,
and that it is doubtful whether it would be possible to
allow such exceptional crimes to be dealt with without
in practice permitting ordinary political acts to be also
struck at.” But continental legislation takes no ac-
count of the condition that the acts to be penal when
committed by foreigners abroad shall not be penal in
the locus delictt. And while in France and several
other countries the penality in question is confined to
offences against the safety of the state or against its
currency, in others it is applied to offences against
subjects. Self-preservation seems especially in the last
case to be stretched to an unwarrantable extent.

1 Treatise on International Law, 3rd edn., p. 210, note.
CHAPTER IX.

TERRITORIAL SOVEREIGNTY, ESPECIALLY WITH RELATION
TO UNCIVILISED REGIONS.

Territorial Sovereignty distinguished from Property.

Tue civilised world, and so much of the uncivilised
world as nations of the European race have assumed
to themselves in sovereignty, is mapped out among
them as the territory of one state or another. Each
state has a sovereignty in and over its territory which
presents some points of resemblance to property in
land, but more important points of difference. The
resemblance chiefly consists in exclusiveness and in
being alienable. A state may exclude other states
from doing acts of sovereignty in its territory, as a
landed proprietor may exclude other persons from
acting as proprietors on his land; and a state may
alienate its sovereignty subject to the rules of the
society of states, one of which, as we have seen, makes
every alteration of the map of Europe a matter of
common interest to that quarter of the globe, as a
landed proprietor may alienate his property subject to
the laws of his country. But property and sovereignty
play widely different parts in the system of acts and
purposes which makes up civilised life, and sometimes

Ww. 9
130 INTERNATIONAL LAW. [cHaP.

 

they are contrasted with one another in circumstances
which would make it very inconvenient to say that
a state has the property in its territory. For instance,
when a state cedes a province it cedes the territorial
sovereignty over the whole, and the property in those
parts which belonged to it as property, such as for-
tresses and public buildings, but the property in all
other parts remains unaffected. If the state which
receives the cession desires to erect a new fortress
or enlarge an old one, it must acquire the necessary
site from the proprietors by purchase or expropriation
according to law. The power of expropriation for
public purposes is one of those powers of the state
subject to which all property is enjoyed, and which
are collectively described as eminent domain; and in
this another reason has been found for treating terri-
torial sovereignty as a kind of property. The aliena-
tion of territory has been regarded as an exercise of
the right of eminent domain, and that right again has
been regarded as a reserved portion of the property,
so that the alienation of territory would be the exercise
of a proprietary right. But objection may be taken
to that reasoning. The right of eminent domain
as it exists within a state rather limits, and when
exercised affects, property, than is a reserved portion
of it; but the cession of territory, as we have seen,
does not affect any property except what is in-
cluded in the cession because it happens to belong
to the state and is therefore alienated in exercise of
the ordinary rights of property’.

1 A government may assume the power to cede land to a foreign state
in property as well as in sovereignty, taking on itself the burden of expro-
priating the private owners ; and the state receiving the cession would not
in that case be bound to enquire whether the government contracting with
IX, | TERRITORIAL SOVEREIGNTY. 131

 

Again, the principle of the feudal system by which
all land was ultimately held of the crown has a super-
ficial résemblance to eminent domain, but only a super-
ficial one. That all land was ultimately held of the
crown gave the latter a right of escheat in default of
heirs which was really a reserved part of the property,
as much so as the landlord’s reversion on a lease;
but it never put the crown in a position to exercise
those rights of interference with property for public
purposes which constitute eminent domain. For those
rights a clear thinker must seek another source than
tenure, under the feudal system as well as under any
other. On every ground then I shall treat territorial
sovereignty as distinct from property, and shall avoid
describing it as eminent domain.

But besides the notion of tenure, carried up to the
king as the ultimate proprietor of whom all others
held, feudalism contained—nay, as a practical system
was even based on—a confusion between the notions
of property and government. It belonged to the lord
to govern his manor as it belonged to the king to
govern his kingdom, and it belonged to the king to
govern his kingdom as it belonged to the lord to
govern his manor. The kingdoms and principalities
which had this view of things as their principle were the
patrimonial kingdomsand principalities of which we read
in Grotius and other writers of the sixteenth and seven-
teenth centuries, when they began to be felt strange.
They were the property of their kings or princes, and
capable of passing by marriage, bequest or inheritance

it had exceeded its constitutional power, for a government may be ac-
cepted internationally as representing not only its state but its subjects
and all rights of whatever kind existing in relation to its territory. But
this does not alter the effect of a mere cession of territory.

9—2
132 INTERNATIONAL LAW. [ CHAP.

 

in accordance with the rules of property. Often in-
deed the notion of a state, dimly perceived even in
the middle ages across the prevailing view of things,
interposed some limitation of the power of bequest,
or some rule for the case of marriage or inheritance
not quite the same as for private property; but it
was of continual occurrence that the operation of
rules of property transferred, united or separated
populations without regard to their interests or wishes.
There was therefore then no clear distinction between
property and territorial sovereignty, and the great
geographical discoveries of the period which suc-
ceeded the middle ages helped to continue the con-
fusion, because they directed the attention of thinkers
to the title by which territory may be acquired in
new countries, and so let in the theories about original
modes of acquisition in a state of nature, which state,
such as it was imagined, hardly admitted a sharp
contrast between property and government. In short,
as Holtzendorff says, “without the historical and
juristic aid of the idea of property, and its applica-
tion to the territory of a state, it would not have
been possible for the old theorists to discover the
principle of political sovereignty’.”

The distinction however was clearly perceived by
Grotius, and indeed, whatever obscurity might be
thrown over it by the misapplication of Roman specu-
lations about natural modes of acquiring property, it
could hardly fail to make its way when Roman law as
a practical system, and the Latin language, came to be
more accurately studied*. Jmpertum is the Latin for

1 Handbuch des Volkerrechts, vol. 2, p. 228.
2 Imperium duas solet habere materias stbt subjacentes, primariam
PEVSONASy. 1100 et secundariam locum qui territorium dicitur. Quanguam
ix. } TERRITORIAL SOVEREIGNTY. 133

 

sovereignty, expressing primarily an authority over
persons, but extended to the relation which a state
bears to its territory, so that, when international law is
discussed in Latin, it is the proper word for sovereignty
in both its aspects. The Latin for property is dom-
nium, whether a piece of land belongs to a private per-
son or, as in the case of a fortress, to the state in the
character of property. And eminent domain, domz-
nium emtinens, as it exists within a state, is a result of
sovereignty, so that there would be an inversion of
the true order if we explained the latter, with its ac-
companying power of alienation, by reference to the
former. It may safely be said that the confusion be-
tween territorial sovereignty and property is not now
made by any one in substance, and it is fast disap-
pearing even from the language of international law,
though we may sometimes remark a regrettable persis-
tence in ancient modes of speaking and reasoning’.

autem uno actu guari solentimperium et dominium, sunt tamen distincta:
tdeoque dominium non in cives tantum sed et in extraneos transtt, manente
penes quem fuit imperio. Grotius, De Fure Belli ac Pacis, |. 2, c. 3, § 4.
The guanguam uno actu guert solent refers to acquisition in new coun-
tries by the so-called natural modes.

1 Besides von Holtzendorff, Pasquale Fiore rejects the expression
“right of international property :” Zvattato di Diritto Internazionale
Pubblico, 3rd ed., § 863, vol. 2, p. 109. Professor Guido Fusinato writes :
“The introduction into public law, for territorial cessions, of the methods
and considerations of private law, in the forms too which are usual in
private law for declaring the will of a party, was intelligible in former
times when the idea of the patrimonial state prevailed, and public law
was confounded with private, sovereignty with property.” Article Azes-
stone in the Enciclopedia Giuridica, note on p. 6 of the separate print.
Professor F. de Martens writes: “It is to the territorial sovereignty that
belongs the exclusive rule in all the extent of its possessions. Placing
one’s self at that point of view, and considering only the international
situation of the state, one may say that it is the owner of its territory.
In fact it alone can dispose of it, and it does not admit the interference
of other powers. As to the private properties situate within its limits, it
134 INTERNATIONAL LAW. [ CHAP.

 

The Title to Territorial Sovereignty.

Let us consider the old civilised world, including not
only the international society of European origin but
those Asiatic and other countries which we have noticed
as possessing different civilisations from ours’. All the
states in it hold their territory by the same kind of title
by which their subjects hold their property in land, that
is by a series of human dealings—as cession or conquest
in the one case, conveyance zxzéer vzvos or will in the
other—deduced from a root assumed as presenting an
irreducible situation of fact. But that situation was itself
a local distribution of territory or property, of the same
nature as the one which results for the present time
from the deduction of title. You have got no nearer to
an origin of territorial sovereignty or of property.
You may discuss the origin of either by way of philo-
sophical or prehistorical speculation, but with no rele-
vancy to international or to national law. You may
discuss the motives for maintaining either, with some
relevancy to international or national legislation, but
with no other relevancy to law. Thus, the title to
territorial sovereignty in old countries not being
capable of discussion apart from the several dealings,
as cession or conquest, which transfer it, we must turn
to new countries.

When a new country is formed by a civilised state
into a colony, the title to land in it may sometimes be
deduced by the proprietors from a situation of fact
which existed before the civilised government was

exercises with regard to them all public rights, that is to say the supreme

right to protect them and dispose of them, but they no way belong to it

according to the principles of private law (dominium).” Traité de Droit

International, translated from Russian into French by Léo, vol. 1. p. 452.
1 See above, p. 102.
Ix. } THE TITLE TO TERRITORIAL SOVEREIGNTY. 135

 

established, and which that government has accepted
and clothed with its sanction. This will be the case
where the colony was formed among natives of some
advancement, or where its formation was preceded by
the settlement of pioneers of civilisation. But in general
the title to land in a colony is traced from a grant by
the state, and the authority of the state to make the
grant resulted from its territorial sovereignty. Or you
may say if you please that, at the moment of acquiring
the sovereignty, the state assumed to itself the property
in so much of the land as it was not morally compelled
to acknowledge as belonging to natives or to the
pioneers, and that subsequent grants by the state were
carved out of the property so assumed. Either way
you carry back the property granted to an origin in
sovereignty, but the origin of the latter is still to be
considered.

But here again all that can really be considered is
the extension of territorial sovereignty over new areas.
In other words, the question is what facts are necessary
and sufficient in order that an uncivilised region may
be internationally recognised as appropriated in sove-
reignty to a particular state? Whatever the answer may
be, the international institutions of the old civilised
world cannot have arisen in exactly the same manner,
for the appropriation with which we are dealing sup-
poses that territorial sovereignty is already known.
The states of the old world may have arisen from the
settlement of wandering tribes in regions only occupied,
if at all, by tribes on a still lower plane of advancement,
and that mode of origin would present great similarity
to the extension of an existing state over a new locality.
Or the states of the old world may have arisen quite
differently. In any case the truth will bear repetition
13 6 INTERNATIONAL LAW. [ CHAP.

 

that, whatever light philology or archeology may throw
on the early history of mankind, an impassable barrier
separates their researches, in spite of the great interest
that must be felt in them, from the subjects with which
international law has to do.

The form which has been given to the question,
namely what facts are necessary and sufficient tn order
that an uncivrlised region may be internationally appro-
priated in sovereignty to a particular state? implies that
it is only the recognition of such sovereignty by the
members of the international society which concerns us,
that of uncivilised natives international law takes no
account. This is true, and it does not mean that all
rights are denied to such natives, but that the apprecia-
tion of their rights is left to the conscience of the state
within whose recognised territorial sovereignty they
are comprised, the rules of the international society
existing only for the purpose of regulating the mutual
conduct of its members. Seen from that point of view
the proposition, which at first is startling, becomes
almost axiomatic. A strongly organised society may
enact rules for the protection of those who are not its
members, as is seen in the case of a state which legis-
lates for the protection of foreigners, or against cruelty
to animals. But this is scarcely possible for a society so
weakly organised as the international one, in which, for
want of a central power, the enforcement of rules must
be left in the main to the mutual action of the members
as independent states. In such a society rules intended
for the benefit of outsiders would either fall into
desuetude and oblivion, or be made pretexts for the
more specious promotion of selfish interests. The sub-
ject, however, must be treated at greater length.
IX.] THE POSITION OF UNCIVILISED NATIVES. 137

 

The Position of Uncivilised Natives with regard to
International Law.

No theorist on law who is pleased to imagine a
state of nature independent of human institutions can
introduce into his picture a difference between civilised
and uncivilised man, because it is just in the presence
or absence of certain institutions, or in their greater or
less perfection, that that difference consists for the
lawyer. But in the early times of international law,
when the appropriation of a newly discovered region
was referred to the principles which were held to
govern the so-called natural modes of acquisition, the
occupation by uncivilised tribes of a tract, of which
according to our habits a small part ought to have
sufficed for them, was not felt to interpose a serious
obstacle to the right of the first civilised occupant.
The region was scarcely distinguished from a ves nullius.
When again men like Victoria, Soto and Covarruvias
maintained the cause of the American and African
natives against the kings and peoples of Spain and
Portugal, they were not so much impugning the title of
their country as trying to influence its conduct, they
were the worthy predecessors of those who now make
among us the honourable claim to be “friends of the
aborigines.” Then and now such men occupy a field
to which international law may be said to invite them
by keeping itself within its own limits. Even those
who, in accordance with the modern tendency, make
rights instead of law their starting point, can hardly
avoid admitting that the rights which are common to
civilised and uncivilised humanity are not among those
which it is the special function of international right to
138 INTERNATIONAL LAW. [cHApP.

 

develop and protect’. But when the African confer-
ence of Berlin was laying down the rules for the appro-
priation of territory on the coasts of that continent,
Mr Kasson, the plenipotentiary of the United States,
expressed himself thus :

“Whilst approving the two paragraphs of this declaration as a first
step, well directed though short, it is my duty to add two observations to
the protocol.

“(1) Modern international law follows closely a line which leads to the
recognition of the right of native tribes to dispose freely of themselves
and of their hereditary territory. In conformity with this principle my
government would gladly adhere to a more extended rule, to be based on
a principle which should aim at the voluntary consent of the natives
whose country is taken possession of, in all cases where they had not
provoked the aggression. (2) I have no doubt as to the conference
being agreed in regard to the signification of the preamble. It only
points out the minimum of the conditions which must necessarily be
fulfilled in order that the recognition of an occupation may be demanded.
It is always possible that an occupation may be rendered effective by acts
of violence which are foreign to the principles of justice, as well as to
national and even international law. Consequently it should be well
understood that it is reserved for the respective signatory powers to
determine all the other conditions from the point of view of right as well
as of fact which must be fulfilled before an occupation can be recognised
as valid?.”

Herr Busch, German under-secretary of state for
foreign affairs, was presiding, and

“remarked that the first portion of the declaration of Mr Kasson
touched on delicate questions, upon which the conference hesitated to
express an opinion. It would suffice to reproduce in the protocol the
views put forward by the plenipotentiary of the United States of America.
The second portion of the declaration of Mr Kasson reverted to the expla-
nations exchanged in the commission, from which it resulted that, in the
unanimous opinion of the plenipotentiaries, the declaration drawn up by
the conference did not limit the right which the powers possessed of
causing the recognition of the occupations which might be notified to

1 See above, pp. 112, 113.

2 Protocol of 31st January, 1885. Parliamentary Paper c. 4361, p. 209.
The two paragraphs referred to by Mr Kasson are those which form Arts.
34 and 35 of the General Act.
IX.] THE POSITION OF UNCIVILISED NATIVES. 139

 

them to be preceded by such an examination as they might consider
necessary.”

No more was said on the subject, and the result is
that when an accession of territory on the coast of
Africa is notified to the powers they will have the oppor-
tunity of objecting. It cannot be doubted that if the
aggrandisement was made at the expense of a civilised
population without its consent, or was attended with
proceedings of great inhumanity to an uncivilised popu-
lation, this would be a good ground of objection on the
part of any power that pleased to take up the cause’.
But it would be going much further, and to a length
to which the conference declined to go, if we were to
say that, except in the case of unprovoked aggression
justifying conquest, an uncivilised population has rights
which make its free consent necessary to the establish-
ment over it of a government possessing international
validity. Any such principle, had it been adopted,
would have tended to defeat one of the chief objects of
the conference, namely to avoid collisions between its
members by regulating more clearly their mutual posi-
tion on the African coast. For on that system a power
might have fulfilled the conditions of notification and
establishment of authority which the conference laid
down as necessary for making a new acquisition, but it
would have still been exposed to see the validity of its
acquisition disputed by another power, under the sanc-
tion of the conference itself, on the ground of some
native title which it might be pretended had not been
duly ceded to it. Is any territorial cession permitted
by the ideas of the tribe? What is the authority—
chief, elders, body of fighting men—if there is one,

1 See what has been said above, p. 79, no. 5 : “the want of a rule to
define the action allowable does not exclude all action.”
140 INTERNATIONAL LAW. [cHAP.

 

which those ideas point out as empowered to make the
cession? With what formalities do they require it to
be made, if they allow it to be made at all? These
questions are too obscure among uncivilised popula-
tions, or, if they are clear to them, too obscure for the
whites who are in contact with them, for the latter to
find much difficulty in picking a hole, when desired,
in a cession alleged to have been made by a tribe.
And then there would be the controversies whether
the irregular violence to which savages are prone
amounted to aggression justifying conquest. All these
are questions for which, in the general interest, the
civilised powers do well not to give occasion in their
mutual arrangements, so long as they are unprovided
with the means of deciding them in the particular cases
which may arise. Those arrangements are not to be
construed as denying, because they do not affirm them,
the rights of any who are not stipulating parties to the
conventions by which they are made. The moral
rights of all outside the international society against
the several members of that society remain intact,
though they have not and scarcely could have been
converted into legal rights. Becoming subjects of the
power which possesses the international title to the
country in which they live, natives have on their
governors more than the common claim of the govern-
ed, they have the claim of the ignorant and helpless
on the enlightened and strong; and that claim is the
more likely to receive justice, the freer is the position
of the governors from insecurity and vexation.
IX. | GOVERNMENT THE TEST OF CIVILISATION. I4l

 

Government the International Test of Civilisation.

Civilisation is a term which has often occurred
during the last few pages, and we must try to give
ourselves an account of what for the present purpose
we mean by it. We have nothing here to do with
the mental or moral characters which distinguish the
civilised from the uncivilised individual, nor even with
the domestic or social habits, taking social in a narrow
sense, which a traveller may remark. When people of
European race come into contact with American or
African tribes, the prime necessity is a government
under the protection of which the former may carry on
the complex life to which they have been accustomed
in their homes, which may prevent that life from being
disturbed by contests between different European
powers for supremacy on the same soil, and which may
protect the natives in the enjoyment of a security and
well-being at least not less than they enjoyed before
the arrival of the strangers. Can the natives furnish
such a government, or can it be looked for from the
Europeans alone? In the answer to that question lies,
for international law, the difference between civilisation
and the want of it. If even the natives could furnish
such a government after the manner of the Asiatic
empires, that would be sufficient. Those empires are
formed of populations leading complex lives of their
own, so far differing from that of Europe in important
particulars, as in the family relations or in the criminal
law and its administration, that it is necessary to allow
to Europeans among them a system more or less
separate under their consuls; but whatever may be
the influence which the foreign powers derive from the
142 INTERNATIONAL LAW. | CHAP.

 

force which they are known to possess though they do
not habitually exercise it, it is the local force of the
empire which on all ordinary occasions maintains order
and protects each class of inhabitants in the enjoyment
of the legal system allowed it. Wherever a population
furnishes such a government as this, the law of our
own international society has to take account of it.
The states which are members of our international
society conclude treaties with it as to the special
position to be allowed to their subjects in its territory,
as to custom duties and the regulation of trade, as to
postal and other administrative arrangements. When
at war with it, they observe the laws of war as among
themselves, and expect those laws to be observed by it
towards them; and they make peace with it by treaties
as among themselves. And, what is more particularly
to the purpose of the present chapter, they regard its
territory as held by a title of the same kind as that by
which their own is held, so that the territorial sove-
reignty of the government in question is a root from
which title may be derived to themselves by conquest or
cession, and which excludes all modes of acquiring it,
whether by discovery occupation or otherwise, which
are or pretend to be original modes going back to the
inception of sovereignty. But wherever the native
inhabitants can furnish no government capable of
fulfilling the purposes fulfilled by the Asiatic empires,
which is the case of most of the populations with whom
Europeans have come into contact in America and
Africa, the first necessity is that a government should
be furnished. The inflow of the white race cannot
be stopped where there is land to cultivate, ore to
be mined, commerce to be developed, sport to enjoy,

1 See above, p. 82, no. 12, and p. 102.
re. | TREATIES WITH UNCIVILISED TRIBES, 143

 

curiosity to be satisfied. If any fanatical admirer of
savage life argued that the whites ought to be kept out,
he would only be driven to the same conclusion by
another route, for a government on the spot would be
necessary to keep them out. Accordingly international
law has to treat such natives as uncivilised, It regu-
lates, for the mutual benefit of civilised states, the
claims which they make to sovereignty over the region,
and leaves the treatment of the natives to the con-
science of the state to which the sovereignty is awarded,
rather than sanction their interest being made an excuse
the more for war between civilised claimants, devasta-
ting the region and the cause of suffering to the natives
themselves.

Treaties with Uncivilised Tribes.

Let us suppose that the officers or private subjects
of a European state, or of one of European origin,
advance into a region where they find no native
government capable of controlling white men or under
which white civilisation can exist, and where also no
state has yet acquired the sovereignty under the rules
which are internationally recognised between white
men. We find that one of their first proceedings is to
conclude treaties with such chiefs or other authorities
as they can discover: and very properly, for no men
are so savage as to be incapable of coming to some
understanding with other men, and wherever contact
has been established between men, some understanding,
however incomplete it may be, is a better basis for
their mutual relations than force. But what is the
scope which it is reasonably possible to give to treaties
144 INTERNATIONAL LAW. [ CHAP.

 

in such a case, and what the effect which may be
reasonably attributed to them ?

We have seen that natives in the rudimentary con-
dition supposed take no rights under international law,
but that even the fulfilment of the conditions laid down
by Art. 34 of the Final Act of Berlin does not preclude
the possibility that objection may be made to an ap-
propriation of territory which one civilised state notifies
to another. Hence it follows that no document in
which such natives are made to cede the sovereignty
over any territory can be exhibited as an international
title, although an arrangement with them, giving
evidence that they have been treated with humanity
and consideration, may be valuable as obviating possible
objections to what would otherwise be a good inter-
national title to sovereignty. And this is reasonable.
A stream cannot rise higher than its source, and the
right to establish the full system of civilised govern-
ment, which in these cases is the essence of sovereignty,
cannot be based on the consent of those who at the
utmost know but a few of the needs which such a
government is intended to meet.

Uncivilised tribes partake in various degrees of
those elements out of which the full system of civilised
society is built up. Settled agricultural populations
know property in land, either as belonging to individuals
or to families, or, if as belonging in full measure only
to the tribe, at least with such rights of a proprietary
nature vested in individuals or in families as are neces-
sary for cultivation. Hunting and nomad tribes may
have so slight a connection with any land in particular
as to share but little, if at all, the ideas which we
connect with property in the soil. Both classes may
possess, and a settled population can scarcely fail to
ix | TREATIES WITH UNCIVILISED TRIBES. 145

 

possess, the practice of trade, by way of barter if not
for money, to such an extent as to be familiar with its
regulation by the authority which they recognise. To
whatever point natives may have advanced, the prin-
ciple must hold that a cession by them, made in
accordance with their ruling customs, may confer a
moral title to such property or power as they under-
stand while they cede it, but that no form of cession
by them can confer any title to what they do not
understand. Hence, while the sovereignty of a Euro-
pean state over an uncivilised region must find its
justification, as it easily will, not in treaties with natives
but in the nature of the case and compliance with con-
ditions recognised by the civilised world, it is possible
that a right of property may be derived from treaties
with natives, and this even before any European
sovereignty has begun to exist over the spot. In that
case the state which afterwards becomes sovereign will
be bound to respect such right and give effect to it by
its legislation, morally bound if only its own subjects
are concerned, but if the previous right of property
existed in a subject of another state, there can be no
doubt but that respect to it would constitute an inter-
national claim as legally valid as any claim between
states can be. On the coasts of Africa it would fall
within “the obligation to insure the establishment of
authority sufficient to protect existing rights,” which is
recognised in Art. 35 of the Final Act of Berlin.

The principles which I have here sought to lay
down have been expressed by the Portuguese states-
man J. B. de Martens Ferrdo, in a passage which I am
the more glad to quote because in their application,
and on some further points, England and Portugal
have differed.

Ww. 10
146 INTERNATIONAL LAW. [cHaP.

 

“It is clear,” he writes, “that in savage tribes as Lubbock describes
them we must recognise all natural rights. Natural rights are born with
man ; they constitute his personality, which the want of cultivation does
not extinguish. But international rights cannot be recegnised in those
tribes, for want of the capacity for government (cafacité dirigeante).
Being nomads or nearly such, they have no international character. For
the same reason they have no constituted sovereignty, that being no
doubt a political right derived from civilisation, and therefore having
civilisation as its base and the condition of its existence. Modern inter-
national law is a result of civilisation. On this ground I do not consider
successive cessions of sovereignty, made by native chiefs, half or wholly
savage, to the chance comer who gives them the most, without any valid
sanction of right, as a reasonable base, sufficient to affect rights founded
on the facts just mentioned. And all the less can I so consider them be-
cause civil property is not their subject, but is left by the negotiators to
the possessor of it if there be one. Such cessions of sovereignty can
furnish no juridical argument to oppose to the facts which were recognised
as lawful titles by the public law in force at the time in question!”

These principles again do not differ from those on
which the European states dealt with the native in-
habitants of the American continent north of Mexico,
although their enunciation in that connection has often
been less clear than it can now be made, partly because
of the old confusion between territorial sovereignty
and property, and partly because the natives concerned
were hunters and only to a limited extent cultivators,
not possessing so well developed a notion of property
in the soil as is possessed by the settled populations
of Africa, With Mexico and Peru we have nothing
here to do. Those countries had attained a degree of
advancement ranking them rather as states than as
uncivilised tribes. The history and methods of the
British conquest in the more northern parts of the
continent were well described by Chief Justice Marshall,

1 DAfrique: la question soulevée dernivrement entre Angleterre et
le Portugal considérée au point de vue du droit international, par

J. B. de Martens Ferraéo: Lisbonne, 1890, p. 6. The passage is on p. 10

of the pamphlet as issued, without the author’s name, from a press at
Rome.
im. | TREATIES WITH UNCIVILISED TRIBES. 147

 

in delivering the opinion of the Supreme Court of the
United States in the case of Johnson v. McIntosh in
the year 1823’. He observes that

“The potentates of the old world found no difficulty in convincing
themselves that they made ample compensation to the inhabitants of the
new, by bestowing on them civilisation and Christianity in exchange for
unlimited independence. But as they were all in pursuit of nearly the
same object, it was necessary, in order to avoid conflicting settlements
and consequent war with each other, to establish a principle which all
should acknowledge as the law by which the right of acquisition which
they all asserted should be regulated as between themselves. This prin-
ciple was that discovery gave title to the government by whose subjects
or by whose authority it was made against all other European govern-
ments, which title might be consummated by possession. The exclusion
of all other Europeans necessarily gave to the nation making the dis-
covery the sole right of acquiring the soil from the natives and establish-
ing settlements upon it. It was a right with which no Europeans could
interfere. It was a right which all asserted for themselves, and to the
assertion of which by others all assented. Those relations which were to
exist between the discoverer and the natives were to be regulated by
themselves. The rights thus acquired being exclusive, no other power
could interpose between them. In the establishment of these relations
the rights of the original inhabitants were in no instance entirely disre-
garded, but were necessarily to a considerable extent impaired. They
were admitted to be the rightful occupants of the soil, with a legal as well
as just claim to retain possession of it and to use it according to their own
discretion; but their rights to complete sovereignty as independent
nations were necessarily diminished, and their power to dispose of the
soil at their own will to whomsoever they pleased was denied by the
original fundamental principle that discovery gave exclusive title to those
who made it?.”

It will be observed that while the Indians passed
under political subjection without its being deemed
necessary to ask their consent, the right in the soil
which they were held to preserve is described as that
of occupants, and occupancy is the term used for it in
this and all other judgments of the Supreme Court
which deal with the question. That it was not a

1 8 Wheaton’s Supreme Court Reports (21 U. S.), p. 543.
* Ib. Pp. 573, 574-
TO—2
148 INTERNATIONAL LAW. [ CHAP.

 

greater right was not due to any incompatibility be-
tween a greater civil right of property and political
subjection, but to the fact that the Indian hunters knew
no greater right among themselves. Such as it was,
they could admit a white individual to it, but could
not expand it into full property, even in his favour.

“ Admitting,” says Chief Justice Marshall, “their power to change
their laws or usages so far as to allow an individual to separate a portion
of their lands from the common stock and hold it in severalty, still it is a
part of their territory and is held under them by a title dependent on
their laws. The grant derives its efficacy from their will, and if they
choose to resume it and make a different disposition of the land, the
courts of the United States cannot interpose for the protection of the
title. The person who purchases lands from the Indians within their
territory incorporates himself with them so far as respects the property

purchased, holds their title under their protection and subject to their
laws.”

The Indian occupancy, though in them and their
grantees it cannot rise higher, is yet so firmly vested in
them that even the United States cannot extinguish it
otherwise than by a treaty with them. But when the
tribe surrenders it by such a treaty, whatever share
they may have carved out of it even for a white is
surrendered also, unless the Indians reserve or regrant
his rights under the sanction of the commissioners with
whom the treaty is negotiated. In the absence of such
a reservation or regrant it is presumed that any con-
veyance which the tribe may appear to have previously
made to him, and under which he, even though a
citizen of the United States, may afterwards claim, was
considered by the Indians as invalid’. But grants by
the British crown passed the full property, and even
when they were made before the Indian right of oc-

1 8 Wheaton’s Supreme Court Reports (21 U. S.), p. 593.
® Ib., pp- 593: 45 7; 8.
Ee | TREATIES WITH UNCIVILISED TRIBES. 149

 

cupancy had been extinguished by treaty, they passed
the property subject to that right’,

We have here a clear apprehension of the principle
that an uncivilised tribe can grant by treaty such rights
as it understands and exercises, but nothing more. On
the practical aspect of the case as affecting the Indians
within the territory of the United States it may be
remarked that, although they are precluded from con-
verting their right of occupancy into one of property
by their own power, whatever aptitude they may show
for imitating the civilisation which is closing in on
them, yet tribes which show such an aptitude have
been admitted as citizens, not to mention the facilities
given for individual Indians to be naturalised as citizens
in proper cases. It may also be remarked that the
Act of Congress of 3rd March 1871’, which transfers
the relations with the Indians from the treaty-making
to the legislative power of the United States, is by no
means inconsistent with a practical observance of the
principle that their right of occupancy cannot be ex-
tinguished without their free consent. But it would be
beside our purpose to enquire into the conduct of Indian
affairs either by the United States or by the British
government, or even whether the original assumption
that the redskins were only hunters, incapable of a
larger right than one of occupation, was justified in the
case of all the tribes.

In Africa, notwithstanding the caution with which
Mr Kasson's ideas were received at the conference of

1 8 Wheaton’s Supreme Court Reports (21 U. S.), pp. 579, 596.
“The soil” is an expression often used in this case for the property,
as distinguished from the Indian occupancy on the one hand, and from
the sovereignty, often called the jurisdiction or the dominion, on the

other hand.
2 Revised Statutes, § 2079.
150 INTERNATIONAL LAW. [ CHAP.

 

Berlin, an importance has sometimes been attached to
treaties with uncivilised tribes, and a development has
sometimes been given to them, which are more calcu-
lated to excite laughter than argument. A turn so
different from that which things have taken in America
is due to several causes. First, the uncivilised popu-
lations of Africa are mostly settled agriculturists or
cattle-breeders, in a stage of advancement higher than
that of the redskins, though still short of that which
would relieve the white races, on their arrival among
them, from the duty of furnishing a government.
Secondly, the climate being less suitable for European
settlement, the populations in question long continued
to be less known, and hence it was possible, as in the
case of Monomotapa, to exploit their names by vaunt-
ing as empires, comparable to those of Asia, what were
certainly nothing more than transient agglomerations
effected by savage Napoleons. Thirdly, the adventu-
rers—I use the term in no derogatory sense—who in
recent times have led the way to the partition of Africa,
have had a sufficient tincture of the forms and language
‘of international law to hope for an advantage over
European competitors through what have really been
travesties of them. Lastly, it may be trusted that
some part has been played by a real desire to respect
the just, though not well understood, claims of the
natives. J am not aware of any national bias in ex-
pressing these opinions. During the recent discussions
between England and Portugal, if the latter built un-
soundly on cessions by the “emperor” of Monomotapa
in 1607 and 1629, the former built with as little reason
on a treaty by which Lobengula, in 1888, accepted
British protection for a region over which he and his
father and his people had never been any thing but
Ix. | TREATIES WITH UNCIVILISED TRIBES. I51

 

cruel raiders. If the antiquity of the Portuguese
treaties exposed them to the answer that, whatever
they had been in the beginning, they had lapsed into
desuetude at least for the larger part of the territory
alleged to be comprised in them, it was all the more
difficult to treat the British one seriously, just because
the facts relating to what it comprised were so modern
and transparent. Leaving instances which have con-
tributed to international dissension rather than to
enlightenment, the present section may be brought to
a close by two instructive examples of what a treaty
with an uncivilised chief should and should not be.

A treaty which exemplifies what one with natives
ought not to be is that which Mr Colquhoun, as
“representative of the British South Africa Company,”
concluded on 14th September 1890 with Umtasa or
Mutassa, dignified as ‘‘king or chief of Manika.” In
the “kingdom” of this savage, for so he may be
described without disrespect to the much more ad-
vanced though still uncivilised natives found elsewhere
in Africa, who was such a drunkard as to be subject to
delirium tremens, adventurers had been prospecting for
gold under a Portuguese title; and Mr Colquhoun, on
21st September, thus described his behaviour in the
circumstances. “With regard to the result of the
mining, Umtasa says he has till now been ‘sitting
watching’; while the Portuguese have ignored Umtasa,
the latter on his part has ignored the presence of the
white men in his country.” And during the events of
this and the following months, which saw the English
and the Portuguese forces alternately at his kraal,
fearing only for his skin, he pursued the policy of
granting every demand of those who were present, and

1 Parliamentary Paper c. 6495, p. 26.
152 INTERNATIONAL LAW. [ CHAP.

 

excusing himself, or even denying what he had done,
to those who were absent. Sucha pattern adept in all
the branches of civilised administration was made to
grant to the company :

“The sole absolute and entire perpetual right and power to do the
following acts over the whole or any portion of the territory of the said
[his] nation or any future extension thereof, including all subject and
dependent territories.

(a) To search, prospect, exploit, dig for and keep all metals and
minerals.

(6) To construct, improve, equip, work, manage and control public
works and conveniences of all kinds, including railways and tramways,
docks, harbours, roads, bridges, piers, wharves, canals, reservoirs, water-
works, embankments, viaducts, irrigations, reclamation, improvement,
sewage, drainage, sanitary water, gas electric or any other mode of light,
telephonic and telegraphic power supply, and all other works and con-
veniences of general or public utility.

(c) To carry on the business of miners, quarry owners, metallurgists,
mechanical engineers, ironfounders, builders and contractors, shipowners,
shipbuilders, brickmakers, warehousemen, merchants, importers, expor-
ters; and to buy, sell and deal in goods or property of all kinds.

(dz) To carry on the business of banking in all branches.

(e) To buy, sell, refine, manipulate, mint and deal in bullion, specie,
coin and precious metals.

(f) To manufacture and import arms and ammunition of all kinds.

(g) To do all such things as are incidental or conducive to the exer-
cise, attainment or protection of all or any of the rights, powers and con-
cessions hereby granted !.”

And the company agreed :

“That it will, under the King’s supervision and authority, aid and
assist in the establishment and propagation of the Christian religion and
the education and civilisation of the native subjects of the King, by the
establishment, maintenance and endowment of such churches, schools
and trading stations as may be from time to time mutually agreed upon
by the King and the Resident hereinbefore mentioned, and by the exten-

sion and equipment of telegraphs and of regular services of postal and
transport communications}.”

It would be superfluous to quote the political stipu-
lations which the treaty also contained. Taken alone
they might not have been beyond Umtasa’s under-

1 Parliamentary Paper c. 6495, p. 28.
Ix. | TREATIES WITH UNCIVILISED TRIBES. 153

 

standing, but when they were mixed with a farrago
which must have been mere jargon to him, the whole
must be dismissed as something which could not have
received his intelligent consent.

It is pleasant to be able to quote an example
to be followed from a British source also. On 26th
September 1889 the following treaty was signed with
Mr Buchanan, “Her Majesty’s acting Consul for
Nyassa,” by the chiefs of a nation which for intelli-
gence and character ranks very high among those
which must still be called uncivilised.

“We the undersigned Makololo chiefs (sons of the late Chiputula)
do, in the presence of headmen and people assembled at this place,
hereby promise:

1. That there shall be peace between the subjects of the queen of
England and our subjects.

2. That British subjects shall have free access to all parts of our
territory (country), and shall have the right to build houses and possess
property according to the laws in force in this country; that they shall
have full liberty to carry on such trade or manufacture as may be ap-
proved by Her Majesty; and should any difference arise between the
aforesaid British subjects and us the said Makololo chiefs, as to the duties
or customs to be paid to us the said Makololo chiefs or the headmen of
the towns in our country by such British subjects, or as to any other
matter, that the dispute shall be referred to a duly authorised represen-
tative of Her Majesty, whose decision in the matter shall be binding and
final.

3. That we the said Makololo chiefs will at no time whatever cede
any of our territory to any other power, or enter into any agreement
treaty or arrangement with any foreign government except through and
with the consent of the government of Her Majesty the queen of England,
&c.4.”

Here we observe that there is nothing beyond the

comprehension of the Makololo chiefs; that there is
no cession of territorial sovereignty by them, or any

1 Parliamentary Paper c. 5904, p. 156. The final “ &c.” is so given in
the paper, but the matter it covers was probably only ceremonial. On
p. 155 is a similar treaty entered into by Mlauli with Mr Buchanan, and
the form was probably supplied by authority as a common one to be used,
154 INTERNATIONAL LAW. [cHaP.

 

pretence of founding on their consent the right which
the queen may one day come to exercise of founding
a regular government in their country in the character
of territorial sovereign, such right being tacitly left to
be developed in the progress of events, and in accord-
ance with the rules of international law as between
Her Majesty and other European powers; that in the
mean time the Makololo are recognised as a nation
under their chiefs, capable of entering as such into re-
lations with the queen’s government in matters within
their comprehension, and acknowledging the final
supremacy of the queen’s government in such matters,
the same government having immediate authority over
the white settlers in matters belonging specially to
civilisation, as trade and manufacture ; that property in
land is recognised as among the matters within the
comprehension of the chiefs and people, so that white
settlers may acquire title to it under native law; and
that the exclusion of other powers is stipulated, so far
as such exclusion may depend on the Makololo. Every
foundation is therefore laid, to the extent admitted by
the nature of the case, for the future development of
territorial sovereignty in the civilised and international
sense, and for the permanence under it of such rights
as the Makololo already possessed. To use an expres-
sion employed in the United States Supreme Court for
the position of the Red Indians, the Makololo are
admitted as a “domestic dependent nation’,” but, as

1 See Cherokee Nation v. State of Georgia, decided in 1831, 5 Peters’s
Supreme Court Reports (30 U. S.), p. 1: Chief Justice Marshall said,
p. 17, that “ they [the Indians] may more correctly perhaps be denominated
domestic dependent nations. They occupy a territory to which we assert
a title independent of their will, which must take effect in point of pos-
session when their right of possession ceases. Meanwhile they are in a
ne. | DISCOVERY AND OCCUPATION. 155

 

became their condition, with rights beyond that of
mere occupancy allowed in the territory of the United
States to the tribes of hunters.

Discovery and Occupation as International Titles.

The position of uncivilised natives having now been
fully discussed, the ground is clear for a discussion of
the titles to territorial sovereignty in uncivilised regions
which states belonging to the society of international
law invoke against one another.

Discovery and occupation or settlement have
often been opposed to one another as rival titles,
discovery being regarded with more favour by the old
law of nations and especially forming the base of the
Spanish and Portuguese claims, while experience and
good sense led to greater stress being laid on occupa-
tion or settlement, which thus formed the base of the
claims maintained in more recent times. It cannot be
denied that there is some truth in this contrast, although
it does not present itself in history with quite such sharp
lines. That original discovery not followed by any act
of possession should create a right for all time, would
be too bold an assertion for a practical diplomat to
think of formulating it. He would naturally seek to
fortify his position by drawing every possible advantage
from any occupation of the region in dispute, however
illusory, which he could claim that his country had
enjoyed. On the other hand, that a state should try
by a hasty occupation to anticipate another state in
reaping the fruit of its discoveries would be so un-
friendly a proceeding that a diplomat, even while in

state of pupilage. Their relation to the United States resembles that of
a ward to his guardian.”
156 INTERNATIONAL LAW. [cHar.

 

the main resting his case on occupation, would not fail
to put forward every plausible claim of discovery which
he might be able to make on his side. Yet, if we take
a general view of the international controversies on the
subject, we shall find that certain doctrinal lines corre-
spond more or less accurately to the conditions of
certain nations and certain periods. It is here as in
many philosophical controversies. At first sight there
appear to be irreconcilable theses. A nearer examina-
tion discloses a remarkable agreement among the
greatest minds. But the third and last review shows
that after all there are differences’.

The titles which Portugal and Spain first claimed
over the eastern and western worlds were not founded
on discovery, but on papal grants. In 1454 pope
Nicholas V granted Guinea to king Alfonso V of
Portugal, and in 1493 pope Alexander VI granted to
Ferdinand and Isabella, and to their successors kings
of Castile and Leon, all lands situate further west than
a line drawn from north to south a hundred leagues
west of the Azores. In 1494 the sovereigns of Spain
and Portugal modified their boundary by the treaty of
Tordesillas, extending the right of Portugal to a line
drawn 370 leagues west of the Cape Verde Islands ;

1 It has been objected to English writers on our subject that they
argue too much from practical considerations, and show a weakness in
principle which again is attributed to a want of systematic study of the
literary sources of law, especially the Roman law. If however there is
principle in considering how men would settle the proportional weight
that would be given to discovery and to occupation in a supposed state
of nature to which the international society is assimilated, and then
laying down that, because of that assimilation, the members of the inter-
national society must accept the law of nature so arrived at, it may be
thought that there is as much principle and more certainty in going direct
to the way in which nations have settled for themselves the proportional
weight to be given to discovery and to occupation.
1x, | DISCOVERY AND OCCUPATION. 157

 

and in 1506 pope Julius II confirmed that treaty.
But the title so obtained could not be successfully
pleaded against protestant states, and when Mendoza,
Philip II’s ambassador, complained of the expedition
of Drake, he based his claim on discovery, to which
Elizabeth replied that

‘“‘as she did not acknowledge the Spaniards to have any title by dona-
tion of the bishop of Rome, so she knew no right they had to any places
other than those they were in actual possession of; for that their having
touched only here and there upon a coast, and given names to a few
rivers or capes, were such insignificant things as could in no ways entitle
them to a propriety further than in the parts where they actually settled
and continued to inhabit}.”

Evidently a controversy of this kind could not be
long maintained on the ground of abstract and contra-
dictory principles, neither of which could be entirely
ignored by those who invoked the other. So both
theoretical writers and official documents, so far as they
are concerned with the title which civilised powers may
claim to the sovereignty over savage countries, gener-
ally try to blend discovery with possession or occu-
pation and not to determine clearly the several parts
which belong to them. Vattel for instance writes as
follows :

“Thus navigators, being on voyages of discovery with commissions
from their sovereigns, and meeting with islands or other desert countries,

have taken possession of them in the names of their nations; and that
title has generally been respected if it has been closely followed by a real

possession 2.”

Similarly, in the declaration of 4th June 1790
signed by the Count de Florida Blanca and sent to all
the courts of Europe during the Nootka Sound con-
troversy, the king of Spain limited his claim in the

1 Camden’s Annals, year 1580. Translated as in Twiss, Oregon
Question, p. 161.

? Book 1, chap. 18, § 207.
158 INTERNATIONAL LAW. [ CHAP.

 

Pacific to “the continent islands and seas which belong
to His Majesty, so far as discoveries have been made
and secured to him by treaties and immemorial pos-
session, and uniformly acquiesced in, notwithstanding
some infringements by individuals who have been
punished upon knowledge of their offences’.”

In the application of this doctrine to particular
cases, it is natural that the element of discovery which
it contains should have been oftener appealed to by the
Spaniards and Portuguese, whose energies were so
rapidly enfeebled that they failed to occupy the vast
regions which they had been the first to discover, and
that the element of possession should have been oftener
appealed to by the English and the other nations which
entered on the field later. But there is no state which
has not insisted in its turn on that part of the doctrine
which best suited its convenience at the moment, or
which has maintained a perfectly uniform attitude on
the questions of detail into which the general doctrine
resolves itself.

In considering those questions of detail I shall
admit that discovery can only confer what has been
called an inchoate title, to be completed by occupation
within a reasonable time. But I shall also admit that
it confers such an inchoate title by no virtue proper to
discovery, but because another state, if it seized on the
newly discovered country too soon, would be guilty of a
proceeding so unfriendly that international rules are
justified in regarding it as an act of hostility. Also we
cannot help being struck by the fact that titles having
their source as well as their completion in occupation
or possession, which for a considerable time past must

1 Twiss, The Oregon Question Examined, pp. 109, 163.
1x, | DISCOVERY AND OCCUPATION. 159

 

have been the case of those in Africa, now the chief
field for the application of the doctrine, present much
resemblance to those having their source in discovery,
as was the case with the older titles both in that conti-
nent and in America. For occupation as well as
discovery has its duties, which must be fulfilled before
a solid title can result from it, and which can seldom
be completely fulfilled at the moment at which occupa-
tion begins. Those duties consist in establishing in
the country occupied an authority which may protect
the natives with whom contact has become inevitable,
and under which the civil rights essential to European
or American life can be enjoyed in tranquillity. This
is in effect what Art. 35 of the general act of the con-
ference of Berlin lays down for the coasts of Africa’.
Accordingly the sufficiency of the occupation must be
measured by the fulfilment of the obligation attaching
to it. If a state claiming sovereignty by occupation
should fail to establish the necessary authority, no
other state can be bound to overlook the injury that
may be thereby caused to its own subjects penetrating
into the country, or the inhumanity to the natives
which must inevitably result. But occupation com-
monly begins through private enterprise, recognised
and supported by the state to which the adventurers
belong, but not organised in the form of an expedition
sent by the state itself, so that the development of
public authority in the occupied region can only be
gradual. Therefore the title which originates in occu-

1 “The signatory powers of the present act recognise the obligation to
insure the establishment of authority in the regions occupied by them on
the coasts of the African continent, sufficient to protect existing rights
and, as the case may be, freedom of trade and of transit under the condi-
tions agreed upon.”
160 INTERNATIONAL LAW. [ CHAP.

 

pation will usually, like that which originates in
discovery, present an interval during which the fulfil-
ment of the conditions for the ultimate acquisition of
sovereignty will be more or less in suspense. But for
the close analogy thus arising between the two titles,
there would be little use in dwelling on the questions
relating to discovery, now that the world has been so
fully discovered.

The Inchoate Title by Discovery or Occupation.

The first of the questions of detail which have been
alluded to is under what conditions did discovery
formerly, or does a commencement of occupation now,
confer an inchoate title to territorial soverergnty—that
7s, the right of occupying or completing the occupation
within a reasonable time, and of subjecting or expelling
the settlements which other civilised powers or ther
subjects may have made in the interval? The most im-
portant condition is that the state claiming the inchoate
title shall make known its intention of deriving the full
benefit from the discovery made or occupation com-
menced by itself or its subjects, or at least that there
shall be no reasonable doubt about the intention in the
circumstances. Were this not the case, another state
or its subjects might enter the country under a reason-
able belief that it had not been appropriated by a
foreign power, and might justifiably complain if an
inchoate title claiming precedence over theirs was
afterwards sprung on them. Accordingly it has always
been usual for the state which intends to claim an
inchoate title to make its intention known from the
beginning. ‘In newly discovered countries,” Lord
ix: | THE INCHOATE TITLE, 161

 

Stowell said, “ where a title is meant to be established
for the first time, some act of possession is usually
done and proclaimed as a notification of the fact’.”
‘Here notification is to be understood in the general
sense of making known, and not in the special sense of
an express communication to other powers, in which it
is used in Art. 34 of the general act of the Conference
of Berlin:

“Any power which henceforth takes possession of a tract of land on
the coasts of the African continent outside of its present possessions, or
which being hitherto without such possessions shall acquire them, as
well as the power which assumes a protectorate there, shall accompany
the respective act with a notification thereof addressed to the other
signatory powers of the present act, in order to enable them if need be to
make good any claims of their own.”

What has been deemed sufficient to make known
the intention of appropriating the sovereignty has
naturally varied with the circumstances of different
times, It never was thought that a discovery might
be kept secret and the benefit of it retained. But
when all the powers were so eager to extend their
colonial possessions that discovery by them without
that motive could hardly be imagined, a discovery made
by the public ships of a state might be followed by a
merely formal act of possession, as planting a flag: the
public expedition was notice enough of the intention to
appropriate its results, whether or not the formal act
was expressly mentioned in the report of those results
which ran round the world. But the same conclusion
did not follow from a private discovery. There was
always some burden attached to extending the territory
of a state, were it only the defence of its subjects who
settled or acquired interests in the new acquisition, and
it was never thought that a state could be saddled with

1 In the Fama, 5 C. Robinson 115.
WwW. Il
162 INTERNATIONAL LAW. [CHAP.

 

the burden without its own consent. Consequently it
would seem that the intention of a state to appropriate
a country discovered by its subjects, or which its
subjects have made a commencement of occupying,”
ought to be quickly signified in some unmistakable
mode, if it is to be availed of against foreign interests
which have grown up in the country and have led to
its being claimed by another state. And this may be
regarded as the doctrine generally accepted. It will be
observed that Vattel, in the passage which has been
quoted from him, only speaks of discoveries made by
navigators commissioned by their sovereigns’. But in
the Oregon dispute the United States rejected the
distinction between public and private discoveries, and
founded their claim on the discovery of the mouth. of
the Columbia river by a private adventurer, Captain
Gray, followed by an establishment which one of their
private citizens made on the Columbia at Astoria,
although up to the time when that establishment was
sold to the British Northwest Company their govern-
ment had not adopted the discovery, and had returned
no answer to the letter by which Mr Astor had
requested it to authorize his proceedings. The British
negotiators did not admit the claim, and the region was
divided by the convention of 1846. Holtzendorff is so
far from attaching importance to the acts of private
persons that he does not consider even a discovery by
a commissioned officer as founding a title, unless the
intention of his government to acquire the territorial
sovereignty is proved and made known to the world in
general by a public taking possession. And he adds
that when an expedition is organised by a government
with the avowed object of scientific research, that

1 See above, p. 157.
1st. THE RIPENING OF AN INCHOATE TITLE. 163

 

object excludes the presumption of the anzmus rem sibt
habendt, and the discoveries made by the expedition
found no title’. In these circumstances it must be
admitted that the Conference of Berlin took no great
step in advance so far as concerns the principle of
publicity, though it acted wisely for the certainty which
is sO important in international titles, when, as above
quoted, it required an express notification for the as-

sumption of territorial sovereignty on the coasts of
Africa.

The Ripening of an Inchoate Title into a
Complete one.

The second practical question is, how long a dura-
tion may be allowed to an inchoate title by discovery or
occupatioun—that rs, after what time will effective occu-
pation come too late to complete the title as against settle-
ments made in the interval by other states or thetr
subjects ? For titles originating in a commencement of
possession on the coasts of Africa notified under Art.
34 of Berlin, the analogous question will be, ow long a
time must be allowed for fulfilling the obligation recog-
nised by Art. 35, namely to establish authority sufficient
to protect existing rights and, as the case may be, free-
dom of trade and of transit under the conditions agreed
upon in that general act? Practically the last question
amounts to this: how long a time must be allowed for
organising the country with sufficient solidity to secure
the common rights of civilised life ?

Professor Pasquale Fiore has proposed twenty-five
years as the term to be fixed “within which the country

1 Handbuch des Volkerrechts, vol. 2, p. 258.
Li 2
164 INTERNATIONAL LAW. [ CHAP.

 

discovered must be really occupied, or within which
acts suitable and sufficient must be done for determin-
ing the extent of territory which the occupying state is
to retain in its real possession’.”. Mr Dudley Field,
whom he cites, had already proposed the rule that ‘the
right of possession is deemed abandoned if the intent
to exercise it is not manifested within twenty-five years
after the discovery.” It is needless to say that no
definite term has been fixed, and with all deference to
the authorities quoted it may be said that much would
not be gained by fixing one unless the still more diffi-
cult question, what extent of country is affected by the
discovery or occupation of one or more points, were
settled at the same time. To refer to a constructive
abandonment the loss of the inchoate title of which the
accompanying conditions have not been fulfilled would
be inconsistent with the principles thus far maintained,
well as I am aware that that language has often been
used. It would imply that the title by discovery or
the commencement of occupation was more than
inchoate, and, though not followed by effective occupa-
tion, need not have been lost if not abandoned ; unless
it is intended that the abandonment is to be a presump-
tion zurzs et de jure, in which case it seems better to
keep the facts in view than fictions. The truth is that
the doctrine of constructive abandonment suited certain
bygone conveniences. It tended to save the dignity
of sovereigns when they were less accustomed to hear
of the rules of a society, and of the duties which
attended their claims. It squared with fashionable
theory, comparing the acquisition of uncivilised regions

1 Trattato di Dirttto Internazionale Pubblico, 3rd ed., vol. 2, § 882,
(c). The citation of Mr Dudley Field is at § 875.
2 Outlines of an International Code, 2nd ed., Art. 76.
| THE RIPENING OF AN INCHOATE TITLE. 165

 

to the acts of men living without government in a
supposed state of nature, in which state, if it existed,
the relation concerned would be property, the moral
duties of which are not so strongly marked as those of
sovereignty. Where the right of sovereignty has been
fully acquired it may be abandoned, as has more than
once happened to the island of Tobago ; but that is
another matter. For our present purpose, without
further dwelling on a definite term of years for the loss
of an inchoate title or on its presumptive abandonment,
we must observe that since enterprise and necessity
have drawn civilised man towards new regions with
accelerated speed, less time than before can be allowed
for establishing effective occupation and a reasonable
measure of authority and order.

We should certainly be going too far if we said that
authority must always be present when its action is
required. Even in old countries the means of restor-
ing order and punishing its breach are by no means
always ready on the spot where a crime has been
committed or a right has been violated; and the rights
conferred by an inchoate title would be reduced to very
small proportions if other states were allowed to enter
the region and set up their own sovereignty at every
point where their traders may have suffered a momen-
tary injury. Common sense points out that much must
depend on the nature and rapidity of the stream of
emigration or of enterprise which is directed to the
region. The crowds which flock to new gold-diggings
must be speedily provided with a government, if it is
wished to maintain the pretension to the sovereignty of
the country. Pastoral settlements scattered over a
vast area may be followed more slowly by a regular
administration. What is above all necessary both for
166 INTERNATIONAL LAW. [cHaP.

 

the theorist and the statesman is to bear well in mind
that no title can prevail against the substantial non-
fulfilment of the duties attached to it, not even if the
notification required by the Conference of Berlin has
been made and has not met with any objection from
the powers which have received it. Dr Geffcken has
said :

“Tt is a very doubtful question whether the Congo state can rightfully
claim the sovereignty over a territory of more than 2,000,000 square
kilometres with 40,000,000 inhabitants, extending in part over regions
entirely unexplored and certainly not yet reduced into possession, even
though its right to those limits has been acknowledged by other states.

These regions will only become the territory of the Congo state in pro-
portion as they are occupied by it}.”

I am disposed to adhere to that opinion.

The Geographical Extent of International Titles in
Uncivilised Regions.

The questions which may be put with relation to
territorial sovereignty in uncivilised regions are so inti-
mately connected with one another that already, when
considering how inchoate titles are ripened, we have
been obliged to refer to the question what extent of
territory is affected by the discovery or occupation of
one or more points, and to indicate the principle on
which it must be solved so far as complete title is con-
cerned, namely, as Holtzendorff writes :

“No state can appropriate more territory through an act of occupation

than it can regularly govern in time of peace with its effective means on
the spot*.”

1 Heffter’s Europdisches Volkerrecht der Gegenwart, 8th edn., by
Geffcken, p. 159.
2 Handbuch des Volkerrechts, vol. 2, p. 263.
| GEOGRAPHICAL EXTENT OF TITLES. 167

 

An establishment at one or more points may com-
plete the title to sovereignty over an extent of country
within their reach, but it cannot on any geographical
considerations be accepted as a substitute for effective
authority at points not within their reach.

But our principle does not solve the question which
formerly arose when one or more points had been
discovered and formal possession taken of them, and
which may conceivably now arise on real possession
being taken of one or more points on the coast of
Africa and all necessary notifications being given in
pursuance of Art. 34 of Berlin; namely, over what
geographical extent was or ts an inchoate title acquired,
to be completed by real possession within a reasonable
tome 2?

In the law of property it is not necessary to peram-
bulate the whole of an estate of which seisin is meant
to be taken, when the seisin taken at one point can be
referred to some unity otherwise known, as by deeds
or records. But in an uncivilised region, as sovereignty
in the European sense has no existence prior to the
seisin taken, there is no unity which stands in any rela-
tion to it; and hence the difficulty which besets the
problem. There might have been some convenience,
especially to the natives, in allowing the inchoate title
to comprise one or more entire tribes, in order that
their chiefs might not be exposed to conflicting claims
from different states. But such an arrangement could
hardly have been made in the case of unsettled hunters,
and even in that of agriculturists it has not been much
thought of. Thus the final settlement between England
and Portugal divided the tribe and country of Umtasa,
who we have seen had been judged capable of under-
standing the finance of the City and the language of
168 INTERNATIONAL LAW. [ CHAP.

 

Lincoln’s Inn and Exeter Hall’. For acquisitions of
territory on the coasts of Africa the question, though
left theoretically possible, was deprived of almost all
practical importance by the fact that the commission
at Berlin reported on the draft articles which, as
amended, became Arts. 34 and 35, that ‘it remained
understood that the notification was inseparable from a
certain determination of limits, and that the powers
interested could always demand such supplementary
information as might appear to them indispensable for
the protection of their rights and interests.” Inde-
pendently then of the partition of Africa which has
since taken place, it was in effect settled from 1885
that the limits of inchoate titles would have to be
determined at their commencement. All that remains
is therefore the historical interest attaching to the
various topics of argument which were invoked while
much of the world was still undiscovered or unexplored,
and of these we will take a summary view. When in
old writers those arguments are employed with regard
to titles by discovery and formal taking possession, not
expressly qualified as to their finality, it must be
remembered that the doctrine of presumptive abandon-
ment to which allusion has already been made reduced
those titles to a position not much better than that
here attributed to inchoate ones*.

(1) The most extravagant of the claims now in
question was that to the back country (Azzterland in
German) to an indefinite extent behind the coast of
which discoverers had taken some kind of possession.
In the charter which James I granted in 1609 for ‘‘the

1 See above, p. 151.
# Annex 1 to Protocol No. 8.
3 See above, p. 164.
Ix. | GEOGRAPHICAL EXTENT OF TITLES. 169

 

first colony in Virginia,” the limits were stated to be
along the coast 200 miles northward and the same
distance southward from Cape Comfort, “and all that
space and circuit of land lying from the sea-coast of the
precinct aforesaid, up into the land throughout from
the sea, west and north-west.” The grants of Carolina
and Pennsylvania were similar in principle, and the
Georgia charter of 1732 granted “all the lands and
territories from the most northern stream of the Savan-
nah river all along the sea-coast southward unto the
most southern stream of the Alatamaha river, and
westward from the heads of the said rivers respectively
in direct lines to the South Seas, and all that space
circuit and precinct of land lying within the said
boundaries’.”

(2) This claim to back country was represented by
the United States during the Oregon controversy as fall-
ing under a more general principle of claim by continuity
or contiguity, by virtue of which they maintained that
the possession of Louisiana gave them the right to the
country as far west as the Pacific, and so far north as to
include the region disputed with England. But some
attempt was made to limit the principle. “It will not
be denied,” Mr Gallatin wrote, ‘that the extent of
contiguous territory to which an actual settlement gives
a prior right must depend in a considerable degree on
the magnitude and population of that settlement, and
on the facility with which the vacant adjoining land
may within a short time be occupied, settled and culti-
vated by such population, as compared with the proba-
bility of its being thus occupied and settled from

1 The Virginia charter is quoted in the report of Fohnson v. McIntosh,
21 U.S. 544. The Georgia charter is quoted and those of Carolina and
Pennsylvania referred to by Twiss, Oregon Question, p. 282.
170 INTERNATIONAL LAW. [cHaP.

 

1»

another quarter’.” This limitation however leaves the
pseudo-scientific principle of contiguity in a position of
near equivalence to the “ manifest destiny” of rhetori-
cians.

(3) More scientifically precise than indefinite back
country or manifest destiny is the “claim to all the
inland territory as far as the line of watershed, founded
on the discovery and occupation of an extent of sea-
coast, about which position of law,” Sir Travers Twiss
writes, “there is no dispute amongst nations*®.” A
claim falling within these terms may be made in
two different cases. We may suppose that two
nations establish settlements at the mouths of two
rivers which are next to one another on the same coast,
and it may then be claimed that their land boundary
should follow the watershed of those rivers, notwith-
standing that this would give to one of them a tract
forming the back country to the settlement of the
other. Or we may suppose that the claim is made by
a nation ascending a river from its mouth, not as
against nations desiring to occupy on its right or left
hand, but as against discoverers descending the river,
after having reached from the other side its innermost
watershed, to which the ascending nation claims to
extend by virtue of its occupation of the mouth. In
the latter form this was another of the arguments used

1 Twiss, Ovegon Question, p. 311: see also p. 301. Mr Calhoun,
writing to Mr Pakenham on 3rd September, 1844, spoke of continuity,
and represented the claim to the disputed region not as an incident to
the possession of Louisiana, but as belonging to the ancient right of
the English colonies to extend from ocean to ocean, which he considered,
so far as concerned the country west of the Mississippi, to have been
ceded to France in 1763, and to have passed from France to the United
States as a part of Louisiana. Wharton’s Digest of the International
Law of the United States, vol. 1. pp. 6, 7.

2 Law of Nations, Peace, 2nd ed., p. 209.
Ix. | GEOGRAPHICAL EXTENT OF TITLES. 171

 

by the United States on the Oregon question, when
they founded on the proceedings of Captain Gray and
Mr Astor at the mouth of the Columbia as against
those of British adventurers on the head waters of that
river’. And since Sir Travers Twiss repels the argu-
ment so used, it may be inferred that his own state-
ment of the doctrine of watershed was meant to apply
only to the case first mentioned. If that doctrine were
adopted in its fullest extent it would lead to the
conclusion that France, while she held Canada and
Louisiana, was entitled to all the basins of the St
Lawrence and Mississippi, except such portions of the
former as were comprised within the settled area of the
English colonies, and such portions of the latter as
were well understood to belong to Mexico. But during
the negotiations with England in 1761 France repu-
diated any such claim, and proposed that the Indians
“between Canada and Louisiana as also between
Virginia and Louisiana should be considered as neutral
nations, independent of the sovereignty of the two
crowns, and serve as a barrier between them’.”

(4) The doctrine of middle distance is thus stated
by Sir Travers Twiss: ‘‘in cases where there is inter-
mediate vacant land contiguous to the settlements of
two nations, each nation has an equal title to extend its
settlement over the intermediate vacant land, and thus
it happens that the middle distance satisfies the juridi-
cal title, whilst it is the nearest approximation to a
natural boundary and the most convenient to deter-
mine’.”

(5) Another consideration is mentioned by the

1 See as to the latter proceedings Twiss, Oregon Question, pp. 13, 14.

2 Ib., p. 307.
3 Law of Nations, Peace, 2nd ed., p. 216.
172 INTERNATIONAL LAW. [ CHAP.

 

same authority as follows. ‘When a nation has dis-
covered a country and notified its discovery, it is
presumed to intend to take possession of the whole
country within those natural boundaries which are
essential to the independence and security of its settle-
ment.” And, “where the control of a district left
unoccupied is necessary for the security of a state, and
not essential to that of another, the principle of vzcznztas
would be overruled by higher considerations, as it
would interfere with the perfect enjoyment of existing
rights of established domain*®.” But the principle of
security can hardly be relied on as governing the
distribution of territory except for very small areas
contiguous to real settlements. To that extent how-
ever it would seem that the title conferred by it should
be complete and not merely inchoate.

(6) “Although considerations based on economic
and administrative interests, or on political convenience,
may throw light on the advantage or disadvantage of a
solution conformable to the views of one or other party,
such reasons cannot stand in place of a mode of acqui-
sition recognised by international law*.” This was
said by the Baron Lambermont, in his award between
the respective British and German companies, on the
farm of the customs and administration of the island of
Lamu, dated 17th August 1889. The case was not
one of discovery or occupation, but of the effect in the
circumstances of the acts and engagements of the
Sultan of Zanzibar and his predecessor. The doctrine
of the eminent arbitrator however is worth noticing
here, especially since it shows that the principle of

1 Law of Nations, Peace, 2nd ed., p. 205.
* Oregon Question, p. 174.
3 22 Revue de Droit International, p. 353.
Ix. | GEOGRAPHICAL EXTENT OF TITLES. 173

 

security mentioned in the preceding paragraph must
be strictly construed.

(7) Islands may be so near a coast and so inti-
mately connected with it that the title to them may
follow that to the coast, but in one instance this claim
was not only made but admitted to an extravagant
extent. The Falkland Islands are considered to have
been discovered under Spanish auspices by Amerigo
Vespucci in 1502, but were first occupied by the French
company of St Malo, whence their French name of
Malouines, in 1764. Spain claimed them as “‘a depen-
dence of the South American continent,” and Louis
XV, probably less from a sense of justice than on
account of the political and family connection of the
two courts, surrendered them on the payment by Spain
of an indemnity to the company. It is said that Lord
Anson, when First Lord of the Admiralty in 1754, had
contemplated occupying the islands, but that the
British government abandoned the scheme in deference
to Spanish objection’. In the protocol relative to the
Sulu Archipelago which was signed at Madrid by
England, Germany and Spain on 7th March 1885, the
two former powers recognised Spanish sovereignty
over the archipelago, including “the places effectively
occupied as well as those places not yet occupied” ;
and Holtzendorff regards this as a recognition of the
principle of effective possession, The arrangement
included the renunciation by Spain, “as far as regards
the British government,” of all claims of sovereignty
over any parts of Borneo which belonged or had
belonged to the Sultan of Sulu; and that concession

1 Calvo, Le Droit International Théorique et Pratique, vol. 1., § 218.
2 Parliamentary Paper c. 4390; Handbuch des Volkerrechts, vol. 2,
p. 266, note 12.
174 INTERNATIONAL LAW. [ CHAP.

 

may justify such an interpretation, if it be taken as the
price of the recognition of Spanish sovereignty over the
unoccupied parts of the islands. There were also
commercial stipulations on each side.

Alleged International Title by Crvilising Influence
exerted beyond the limits of Occupation.

During the recent dissensions between England
and Portugal with regard to their mutual limits in
Africa, a claim was put forward on behalf of the latter
which must be stated in the words of M. Martens
Ferrdo.

“ Portugal has possessed for centuries in Western and Eastern Africa
vast colonies governed by Portuguese authorities, in which she exercises
domintum and imperium:

She possesses states in vassalage according to the system established
in Africa by all colonising nations:

She has also countries with which she has established rudimentary
relations, founded on the right of first discovery, never abandoned and
preserved in this manner. With all these tribes Portugal has always
maintained relations by the rudimentary commerce of which these peoples
are barely capable.

I consider these three formulas to be fundamental ones for determin-
ing the relations of colonial right in the mysterious dark continent.
These typical forms have even been enlarged by England.

The last is recognised by public law, and will long continue to be so,
in the great and uncertain enterprise of calling to civilisation tribes which
at present are still either in the lowest state of decadence of the species
or in the most rudimentary infancy.

That form, as just and well founded as the others, and not demanding
less sacrifice, has been recognised as legitimate, and will always be so as
long as true civilisation shall not take its place, an event which is still
beyond the range of the most penetrating vision1.”

The first of the forms thus enumerated needs no
remark. It is that of a colony in which a civilised

1 Pamphlet quoted above, p. 146, at p. 9 of the copies with the imprint
of Rome, The italics are those of M. Martens Ferrao.
Ix, | TITLE BY CIVILISING INFLUENCE. 175

 

government is in operation under the direct authority
of individuals of European race. In the second form
the eminent writer appears to contemplate the imme-
diate authority being exercised by the chiefs or other
heads of the vassal state, subject to the control of the
suzerain state. That is a situation with which we are
familiar in the case of a protectorate exercised by a
civilised state over another state possessing a civilisa-
tion of the same or of a different kind, but it may be
doubted whether it is a possible situation where the
people dignified with the name of a vassal state is
uncivilised. M. Martens Ferrao may have framed his
second formula on examples of the former class, such
as those of Tunis and Zanzibar ; and the traditions of
such so-called empires as that of Monomotapa, handed
down from the magniloquence of early explorers, may
have affected his view of the possibility that natives
like those with whom the Portuguese were in contact
might be placed in relations similar to those of Tunis
or Zanzibar. The third form is that with which we
are now concerned, and it contemplates a title to terri-
tory having its roots in discovery and kept alive, not
by occupation, for in that case it would have been super-
fluous to mention anything more than the occupation,
but by rudimentary relations, commercial or other,
entertained with tribes whom it is desired gradually to
civilise at the cost of some sacrifice to the state main-
taining the relations.

There is grave objection to basing an international
title on any efforts for the civilisation of native races,
because the value and efficacy of such efforts are sure
to be differently appreciated by the power which builds
on them and by the power against which the title built
on them is invoked. The use of an international title
176 INTERNATIONAL LAW. [cHap.

 

is to decide controversies, and to have that effect it
ought to be based on facts to which, if I may use the
expression, a yard measure can be applied. If the
civilising agency of the state to which the discovery
belongs is founded on a real occupation of the country
accompanied by the establishment of authority in it,
the yard measure is found in such occupation. When
this is not the case, the civilising agency can mean
little, if anything, more than either the work of religious
missionaries or the indirect effect of commerce carried
on by the natives with the discoverers and their suc-
cessors. But commerce finds its recompense in itself,
and will not justify the proposition that the third form
of colonial expansion contemplated by the Portuguese
statesman demands not less sacrifice than the other two,
each of which involves the burden of government or of
control. The profit which a state derives from trade
cannot confer any right to exclude other states from
the region in which it is carried on.

If on the other hand the civilising agency takes the
form of missionary enterprise—which M. Martens
Ferraéo does not mention, and cannot be supposed to
have intended—it is now generally acknowledged that
to erect proselytism into an international title to
aggrandisement would be highly injurious to sound
religion and to peace and goodwill among men.
Alluding to the dispute between Spain and Germany
which was adjusted by the mediation of the Pope in
1885, Holtzendorff says: “even the sending of mission-
aries to convert the natives, on which the Spanish
government founded in the controversy about the
Caroline Islands, can no longer be considered as an act
of occupation because it was the church that sent them’.”

1 Handbuch des Volkerrechts, vol. 2, pp. 258, 9.
Ix. | TITLE BY CIVILISING INFLUENCE. 177

 

It is conceivable that the native population of an
unoccupied country may be so permeated by influence
proceeding in one way or another from a people of
European race that they may have gone far towards
adopting its distinctive form of civilisation and religion.
There is perhaps no instance in which an uncivilised
population has made so great an advance without the
training and discipline which results from European
government or control, but the supposition may be
made. In that case it might be morally wrong for
another European nation to step in and check or divert
so admirable a development. But the state which lost
the prospective benefit of colonial expansion over the
natives in question would only have to blame itself for
not having asserted in good time, over such promising
neighbours, an authority which in the supposed circum-
stances could scarcely have been other than welcome.

On no ground then does it seem possible to admit
that an international title to territory can be acquired
through civilising influence exerted beyond the limits
of occupation.

Protectorates in Unciwilised Regions.

In the civilised world a protectorate has long been
familiar as a relation existing between two states, of
which the protected one is controlled or even wholly
represented in its foreign affairs by the protecting
one, while the latter has such authority in the internal
affairs of the former, if any, as the arrangements
between them provide for. The protected state is there-
fore not independent, but neither does it altogether lose
an international existence, for its foreign affairs are
distinctly its own, even when wholly managed for it

Ww. 12
178 INTERNATIONAL LAW. [ CHAP.

 

by the protecting state. Thus the republic of the
Ionian Islands, which was under the protection of the
United Kingdom, was not a party to the Crimean
war, waged by Turkey, England, France and Sardinia
against Russia, because England did not make it such
a party although she might have done so. Consequently
the international position of a protected state falls
under the general head of semi-sovereignty. On the
other hand the relations between the protected and
protecting states, whether in respect of the authority
which the latter has over the foreign affairs of the
former or of that which may be allowed to the latter
in the internal affairs of the former, are constitutional
relations. The two constitute a single system, pos-
sessing and exercising all the powers which belong to
civilised government, and not subject to the interference
of any third state as to the distribution of those powers
but regulating that distribution for themselves’. An
example lying wholly within Europe is still presented
by the protectorate of the kingdom of Italy over the
republic of San Marino, but the commonest case by far
is now that of a protectorate exercised by a state of
European civilisation over one of other civilisation,
as that which France exercises over Tunis and that
which England exercises over Zanzibar.

Where there is no state, that is to say in an un-
civilised region, there can be no protected state, and
therefore no such protectorate as has been described
in the last paragraph. But in recent times a practice
has arisen by which in such regions civilised powers
assume and exercise certain rights in more or less
well defined districts, to which rights and districts, for
the term is used to express both the one and the other,

1 See above, pp. 87-89.
Ix, | PROTECTORATES IN UNCIVILISED REGIONS. 179

 

the name of a protectorate is given by analogy. The
distinctive characters of those rights are, first, that they
are contrasted with territorial sovereignty, for, as far as
such sovereignty extends, there is the state itself which
has acquired it and not a protectorate exercised by that
state; secondly, that the protectorate first established
excludes all other states from exercising any authority
within the district either by way of territorial sovereignty
or of a protectorate—that is to say, while it lasts,
for the question remains whether a protectorate, like an
inchoate title to territorial sovereignty, is not subject
to conditions and liable to forfeiture on their non-
fulfilment ; thirdly, that the state enjoying the pro-
tectorate represents and protects the district and its
population, native or civilised, in everything which
relates to other powers. The analogy to the protector-
ates exercised over states is plainly seen in the last
two characters, exclusiveness and representation with
protection. It is less visible in the first character, for,
where there is a protected state, the territorial sove-
reignty is divided between it and the protecting state
according to the arrangements existing in the particu-
lar case, while in an uncivilised protectorate it is in
suspense. But on the whole the analogy is sufficient
to account for the extension of the old term to the new
case, although to account for is not necessarily to
justify, and perhaps it might have been better had a
new term been used.

The classical passage as to the international status
of protectorates in uncivilised regions is the sixth
chapter of the general act of the African conference
of Berlin, of which the heading is: “ Declaration re-
lative to the essential conditions to be observed in order
that new occupations on the coasts of the African

12—2
180 INTERNATIONAL LAW. [ CHAP.

 

continent may be effective, and which consists of the
two articles nos. 34 and 35, of which the texts have
been already given’. It will be observed that the
first of these articles expressly subjects the assumption
of a protectorate to the same condition of notification,
carrying the same opportunity for objection to be made
to it by any power receiving the notification, to which
the acquisition of a possession, that is of territorial
sovereignty, is subjected. And it will further be ob-
served that the second of those articles expressly
mentions neither a possession nor a protectorate, but
defines the obligation to establish authority which is
incumbent in the case of a new occupation, that being
the term which alone is also used in the heading of the
chapter. On this it has been argued that protectorates
as well as possessions are included in the occupations
mentioned in the heading and by Art. 35, but that
conclusion may be questioned. The heading of a
chapter must be brief, and cannot always name every
subject treated of in it. And the first draft of Art. 35
mentioned protectorates, but their mention was struck
out on the proposal of the British ambassador, and
M. Busch, the German under-secretary of state, in
accepting its omission, described the omitted words, not
as superfluous, but as those “ which subject protected
territories to the sameconditions as occupiedterritories’.”
The point may not be without importance, because
occupation is a well understood term in international
law, and if it was applied at Berlin to protectorates it
would be difficult to resist the conclusion that at least a
commencement of occupation was thought necessary
for the establishment of a protectorate. But in fact

1 See Art. 34, above, p. 161, and Art. 35, above, p. 159, note.
2 Annex 1 to Protocol 8 of the Berlin Conference.
Ix. | PROTECTORATES IN UNCIVILISED REGIONS. I8I

 

such protectorates as we are considering have been
established in Africa without even a commencement
of occupation, or at least with no such commencement
of which the legal effect could reasonably be extended
over the great areas over which they have been estab-
lished. The caution of the British ambassador in
objecting to the inclusion of protectorates in Art. 35
may be justified on that ground, and on the further
ground that the article as drafted did not distinguish
protectorates in uncivilised regions from those over
states, which are subject to very different considerations.
The authority necessary for the purposes of civilised
life already exists in a state, so that the obligation of
the protecting state is not to ensure its establishment
but to see to its proper working where foreigners are
concerned.

But I am at one with Mr Hall in the opinion
expressed in the very valuable work lately published
by him, to the effect that a protectorate on the coast of
Africa carries an obligation of establishing authority
equal to that laid down in Art. 35, although that
opinion for me is not based on the article but on the
nature of the case. And while he considers that the
obligation which he finds to be stipulated for the
coast implies even for an inland protectorate a consent
to civil and criminal jurisdiction over foreigners, as
being necessary for the establishment of the authority,
it seems to me that that consent also is carried by a
protectorate over any -uncivilised region, and again
from the nature of the case. A protectorate which
was not exclusive would not make for peace, and was
certainly never intended. But when the exclusive
character of a protectorate is admitted, surely it follows

' foreign Powers and Jurisdiction of the British Crown, p- 214.
182 INTERNATIONAL LAW. [ CHAP.

 

that the government required by the conditions of the
region must be supplied by the state which excludes
all others from supplying it, and that that state is armed
by all others which recognise its protectorate with
their consent to its exercise of jurisdiction, indis-
pensable for the purpose, over their subjects within
the recognised area. It is true that in inland places
there may be a greater difficulty of maintaining effective
jurisdiction than on the coast, but then correspondingly
there will be less need for it, or the form of authority
necessary for efficacy will be less elaborate. As com-
munications are opened and improved, settlement and
the means of government will advance with parallel
steps.

“Tt is believed,” Mr Hall says, “that all the states represented at the
Berlin conference of 1884—5, with the exception of Great Britain, main-
tained that a protectorate includes the right of administering justice over
the subjects of other civilised states; and by the first article of the
general act of the Brussels conference of July 1890 the powers, in this
instance inclusive of Great Britain, declared ‘that the most effective
means for counteracting the slave trade in the interior of Africa are the
following :—(1) progressive organisation of the administrative, judicial,
religious and military services in the African territories placed under the
sovereignty or protectorate of civilised nations’; in the second to the
seventh paragraphs are prescribed the establishment of occupied stations,
roads, railways, inland steam navigation, telegraph lines, and the main-
tenance of restrictions on the importation of firearms and ammunition.
Evidently on the one hand acts of the nature contemplated and prescribed
compel extensive interference with the internal sovereignty of a com-
munity1, and involve a commensurate assumption of sovereignty by the
protecting state; on the other, the objects aimed at can hardly, if at all,
be attained compatibly with the exemption of European traders and
adventurers from the local civilised jurisdiction 2.”

We are thus led to the conclusion that the third
distinctive character above attributed to a protectorate

1 It is needless to repeat that the system advocated in this book does
not permit us to speak of the sovereignty of African savages.
Foreign Powers and Jurisdiction of the British Crown, p. 207.
i. PROTECTORATES IN UNCIVILISED REGIONS. 183

 

over an uncivilised district—namely that the state
which enjoys it represents and protects the district
and its population, native or civilised, in every thing
which relates to other powers—might have been put
higher. It would be true to say that the state which
enjoys it possesses the full powers of sovereignty over
the district and its population, perhaps with the ex-
ception that a protectorate, being comparable to the
personal relation of guardianship, may not be alienable
by cession as territorial sovereignty is. And we are
led to answer the question suggested above in con-
nection with the second distinctive character attributed
to these protectorates, namely their exclusiveness, by
saying that in no case can the powers of territorial
sovereignty be retained in spite of a persistent non-
fulfilment of the duties attaching to them, and that
consequently these protectorates stand on the same
provisional footing as the inchoate title to territorial
sovereignty. It will be asked why, this being so, it
was found necessary to establish this class of pro-
tectorates at all; why a country assuming such a pro-
tectorate might not equally well notify that it had
acquired a new possession, subject to the obligation of
the establishment of authority incident to new occupa-
tions? The answer to be given is rather a practical
than a theoretical one. Over an area far transcending
any attempt even at a commencement of occupation, a
protectorate will be more easily admitted by other
powers than either an inchoate title to possession or,
to use the old language, a title by discovery and
formal possession to be lost by presumed abandon-
ment on failure to take real possession. The three
theoretical forms may be nearly equivalent, but the
power of names is great. Even the state which
184 INTERNATIONAL LAW. [cHAP.

 

assumes the protectorate feels itself less committed.
If it wearies of its task, it can abandon a protectorate
with less loss of self-respect than a possession, even
though the latter be held only by a title admittedly
inchoate. Practically then the institution of protec-
torates over uncivilised regions has given greater free-
dom to the initial steps towards their acquisition.

It remains to notice the question how far British
legislation has entrusted British courts with the juris-
diction, especially over the subjects of foreign powers,
which is necessary to the performance of the inter-
national duties attached to British protectorates in
uncivilised regions, and which we have seen is gene-
rally admitted by foreign powers to belong inter-
nationally to such protectorates. This is indeed not a
question of international law, but the branch of it
which relates to the power of the crown to supply
such legislation by order in council involves questions
which it may be useful to consider. The Foreign
Jurisdiction Act 1890, s. 1, declared that the queen
may exercise any jurisdiction which she then had or
at any time thereafter might have within a foreign
country. A protectorate is a foreign country, the
rights held over it being still distinguished from terri-
torial sovereignty, by however thin a line. And juris-
diction over persons of all nationalities, which is
attached by the general understanding of states to a
protectorate itself recognised by them, must surely
fall within the description of jurisdiction which the
queen has. But it has been suggested that the mean-
ing of the section must be cut down by reference to
the recital that “by treaty, capitulation, grant, usage,
sufferance and other lawful means, Her Majesty the
queen has jurisdiction within divers foreign coun-
ix. | PROTECTORATES IN UNCIVILISED KEGIONS, 185

 

tries””—combined with the fact that the act is a con-
solidating one, and that at the dates of the acts
consolidated, or at least at that of the original act of
1843, the queen had no jurisdiction through pro-
tectorates. I cannot adopt that suggestion. It seems
to me incorrect to say that “the act of 1843 referred
only to certain wholly independent states, in which a
limited jurisdiction over British subjects had been
obtained in the various ways specified in the recital.”
Such jurisdiction may have been all that there then
was to fall within the section, but the section referred to
all that might fall within its terms. It will hardly be
said that the section cannot be applied to jurisdiction
acquired since 1843, or even since 1890, within inde-
pendent states, by any of the means specifically men-
tioned in the recital. And if the section is not to be
confined to jurisdiction existing in 1843, as little I think
can the words “other lawful means” be confined to
means which were lawful in 1843, so as to exclude juris-
diction acquired by a class of protectorates which has
since become internationally lawful. I conclude that
the section in question empowers Her Majesty to
grant to her courts in protectorates the jurisdiction over
all persons there which is necessary for maintaining
order and enforcing rights. No argument to the con-
trary can be drawn from the s. 2 of the Foreign
Jurisdiction Act 1890, which gives the queen juris-
diction, but only over her own subjects, in ‘‘a foreign
country not subject to any government from whom
Her Majesty might obtain jurisdiction in the manner
recited.” The countries so described would be those
outside both states and protectorates; and such de-
scription of them involves the assertion, insisted on in
this chapter, that the uncivilised natives who inhabit
186 INTERNATIONAL LAW. [ CHAP.

 

them are not sources by cession from whom the queen
can obtain the powers of civilised government. A
country over which the civilised world has so far
asserted its authority as to recognise the establish-
ment of a protectorate over it is not one in which the
acquisition of jurisdiction is impossible.

Mr Hall, who takes the limited view of the opera-
tion of the Foreign Jurisdiction Act, argues that “in
assuming a protectorate the crown takes to itself
powers which, so far as they go, are identical with
those that it would have in a conquered country. It
can prescribe laws until parliament chooses to legis-
late, and it can subject to its administration all persons
upon the protected soil’.” This seems to be sound.
The power which the crown has in a conquered
country is that which is conferred on the state by
international law, and which is deposited in the crown
because the constitution of the United Kingdom has
made no provision for its being deposited elsewhere.
In the same way the power which international law
confers on the state in the case of a protectorate is
deposited in the crown till parliament may provide for
its being deposited elsewhere. Perhaps it may be said
that this reasoning is inconsistent with the decision in
The Queen v. Keyn*®. But that decision, whether it
was right or wrong, was that the jurisdiction of English
courts could not be enlarged by the development of
an international doctrine that the sea within the three-
miles limit was territorial. And it does not follow
that the crown is unable to accept for the benefit of
the state an authority given by the development of an
international doctrine about protectorates, when such
acceptance does not affect the jurisdiction of an

1 Us So pe 2253 2L.R., 2 Exch. 63.
IX.]  PROTECTORATES IN UNCIVILISED REGIONS. 187

 

English court or anything else internal to the realm
of England. Whether therefore under the Foreign
Jurisdiction Act or by the analogy to conquest, we
may fairly conclude that the queen, by order in
council, can confer jurisdiction over foreigners on her
courts in her protectorates in uncivilised regions.

On the question whether she has done so it will be
sufficient to refer to Mr Hall’s able discussion in the
work mentioned. He sums up as follows.

“It is clear that in the less developed instances Great Britain has
assumed smaller powers than might reasonably have been taken, and that
in some cases, as for example on the Somali coast, enough power has
certainly not been appropriated to meet the demands which may rightly
be made by foreign states, or to prevent the continuance or establishment
of foreign extraterritorial jurisdictions, the existence of which may be
productive of grave embarrassment in the future. On the other hand, in
the protectorates where she has invested herself with fuller powers, while

refraining from any undue invasion of internal sovereignty, she has
secured to herself sufficient authority to meet all contingencies.”

Spheres of Influence.

Spheres of influence result from mutual agreements
of abstention made by two or more powers. An
example may be taken from the declaration of 6th
April 1886, by which England and Germany defined
their respective spheres of influence in the Western
Pacific. The reciprocal engagement was in these
terms.

“Germany [Great Britain] engages not to make acquisitions of

territory, accept protectorates, or interfere with the extension of British
[German] influence, and to give up any acquisitions of territory or pro-

1 Foreign Powers and Jurisdiction of the British Crown, p. 220.
With reference to what is said about an undue invasion of internal
sovereignty, it must be remarked that, in the chapter quoted from, pro-
tectorates over states are treated of as well as protectorates over uncivilised
regions.
188 INTERNATIONAL LAW. [ CHAP.

 

tectorates already established, in that part of the Western Pacific lying to
the east south-east or south [west north-west or north] of the said con-
ventional line.”

This was accompanied by certain collateral stipu-
lations, as may always be the case; but the essence
lies in the promise by each contracting party to ab-
stain from every form of aggrandisement on the other
side of the boundary agreed on. On its own side
of the boundary each must pursue its aggrandisement,
if at all, by the methods and subject to the conditions
applicable in other cases to the acquisition of pos-
sessions or protectorates. A sphere of influence is
not in itself a recognised form of aggrandisement, and
if either power, within the sphere reserved to it, meets
with a third power not a party to the agreement, the
rights of such third power are intact. The agreement
is ves inter altos acta, and cannot be quoted against it.

A very remarkable incident in connection with this
subject is the agreement of 12th May 1894, by which
England granted to the Congo state a lease of certain
territories in which England herself had no other
right than that arising from agreements made by her
with Germany and Italy, by which those powers re-
spectively delimited with her their spheres of in-
fluence in such manner as to leave the territories in
question in the British sphere. If it be admitted that
sovereignty is an apt subject for a lease, still that
admission would not cover the case. No one can
lease more than he has, and here all England had was
the right to the abstention of Germany and Italy;
while those powers might well say that an agreement
for abstention is of a personal nature, in other words
that state (A), which has made such an agreement in
favour of state (B), cannot be forced, either by lease
1, | SPHERES OF INFLUENCE. 189

 

or by an attempt at permanent transfer, to treat it as
binding in favour of state (C), which it might think a
less desirable neighbour. In fact neither Germany
nor Italy has objected, though Germany objected to
another clause of the same agreement with such effect
that it was cancelled by the parties. By, that clause
the Congo state had leased a part of its territory to
England, thereby bringing the latter into a geogra-
phical situation to which Germany had refused to
consent when delimiting her own sphere of influence
with her. It was therefore natural that Germany should
desire to object to the same effect being produced by
an arrangement made between England and _ the
Congo state, even for the duration of a lease. But
that she could do so proves that the principle estab-
lished with regard to the map of Europe, that any
alteration in it is matter of common interest to all the
European powers, and can be objected to by any of
them which may think the case requires it, is beginning
to be recognised for the map of Africa also. Nor is it
at all surprising that this should be so, now that the
European powers have acquired such important in-
terests in conterminous parts of that continent.
CHAPTER X.

THE EMPIRE OF INDIA.
The East India Company and Companies in general.

We have seen in what relation states stand to
international law, whether they are the fully sovereign
states of the white society whose rules are that law,
or semi-sovereign, oriental or protected states’. We
have also seen how the uncivilised part of the world
is related to international law, by what means states
appropriate portions of it as their possessions, how
beyond the limits of their territorial sovereignty they
exercise over other portions of it protectorates not
to be confounded with those exercised over states,
and how, in regions still less advanced, they agree
to leave each other free scope within limits which as
between the contracting parties mark out their spheres
of influence. India presents no further kind of inter-
national relation to be added to these: indeed it would
be difficult to imagine any kind which would not fall
within one or other of the foregoing. But the modern

1 See above, as to semi-sovereign states, pp. 87—90; as to oriental
states, pp. 82, no. 12, and 102, 103 ; as to protected states, pp. 177, 178.
CHAP. x. | THE EAST INDIA COMPANY. 191

 

history and present political arrangement of India,
apart from the great interest they must offer to
Englishmen, furnish to the student of international
relations a remarkable example of the rapidity and
ease with which such relations may shift in substance
while remaining unchanged in form, so that even in-
structed observers have sometimes been bewildered
as to their true classification in their successive
phases.

It may have occurred to some that, in saying that
India presents no kind of international relation which
has not already been touched on, it must have been
intended to refer to the system under which she is
now governed, and not to a history which includes
that of the East India Company. But the statement
was meant to refer to the history as well as to the
present political conditions of India. An incorporated
company is the creature of the state to the law or
to the government of which it owes its corporate ex-
istence and powers, and if it is incorporated for an
object which brings it into relations with foreign
states, the state which has created it cannot escape
responsibility for the acts of its creature. The re-
lations into which the company was empowered to
enter, or into which it has in fact entered without
being restrained by its parent state, are those of the
parent state, of which for all such purposes the com-
pany is as much an organ as the department of its
government ostensibly entrusted with the conduct of
its foreign affairs, or as the commanders of the forces
which the state employs in its own name. In framing
the constitution of the company care may or may not
have been taken that its members or its directors shall
be subjects of the state which grants the incorporation,
192 INTERNATIONAL LAW. [ CHAP.

 

but that does not matter. The company, as a technical
person having an existence in law, is a technical sub-
ject of the state which has called it from nothingness
into that mode of being. Such was the case of the
East India Company, and such is now the case of
the Imperial British East Africa Company, the British
South Africa Company, and others. If any of these
companies acquires territory, the territory and the
international sovereignty over it belong to the British
crown, though they may be held mediately by the
company, as the Earls of Derby were at one time
mediately kings of the Isle of Man. If the company,
in its character of a mediate territorial sovereign or
in any other character, suffers wrong from a foreign
state, or from a company similarly created by a foreign
state, as the Dutch East India Company or the
Mozambique Company of Portugal, the British Crown
can treat the wrong as done to itself or its subjects.
If the company does wrong to a foreign state or com-
pany, the British Crown is responsible to the same
extent as if the wrong were done by a natural person
being a British subject, and so far further as the
commission of the wrong may have been made possible
or facilitated by the incorporation of the company or
the powers granted to it. If the company is engaged
in hostilities with a foreign state or a company created
by a foreign state, there is war de facto between Eng-
land and the state in question, and it is at the choice of
either to treat it avowedly as an international war if
it pleases. Consequently we shall consider as inter-
national lawyers that the part which the East India
Company has played was played by England. Any
distinction which might be drawn between the times
before and after the assumption of direct rule in India
x. | RISE OF THE EMPIRE OF INDIA. 193

 

by parliament and the Crown, as it would relate only
to the organ by which the British state was pleased
to act, must belong not to international but to con-
stitutional history.

That whatever the East India Company held it
held mediately as an organ of the state, was implied
by parliamentary interference with the company from
its commencement in 1773, and was expressed in the
subsequent renewals of the company’s charter. The
act of 1793 confirmed the title of the company to
its territorial acquisitions ‘without prejudice to the
claims of the public.” The act of 1813 declared that
its provisions were without prejudice to “the un-
doubted sovereignty of the crown of the United
Kingdom of Great Britain and Ireland in and over
the said territorial acquisitions.” The act of 1833
declared the company to be “trustees for the crown
of the United Kingdom,” and by the act of 1858 the
trusteeship was terminated and the sovereignty of the
state, which had never been doubtful to the discerning
eye, was unveiled to every one.

Rise of the British Empire in India, from the
point of view of International Law.

Bombay was acquired by England in full sovereignty,
by cession from Portugal, as a part of the dower of
Catherine of Braganza. With that exception, the
condition of India and the position which the East
India Company held there in the eighteenth century
may best be understood by the analogy of the Holy
Roman Empire between the Peace of Westphalia in
1648 and its extinction in 1806. The states of that
empire acknowledged the emperor as their suzerain,

Ww, 13
194 INTERNATIONAL LAW. [ cH.

 

but they were formally empowered to enter into forei
relations of great importance on their own account a
in their own names, and the emperor and the impe1
diet were quite unable to enforce the formal limitat:
of their foreign relations. Therefore, following f
and not constitutional theory, the states of the emp
were not treated by the other powers as semi-sovere:
but as full members of the European internatio
society’. The Mogul empire had fallen into a simi
decrepitude, and its provincial governors, as the Niz
of the Deccan and the Nawab Wazir of Oude, asser
a practical independence similar to that of the Gern
states, but, again similarly, without wholly ignoring
nominal sovereign of India. The confusion into wh
India fell was increased by the apparition of mer
insurgent powers, as the Marhattas, and became bey«
comparison greater than any confusion which exis
in Europe, so that the British company was compel
to provide for its own defence. In doing so it beca
an Indian power enjoying the same practical indep
dence as the other rulers who had risen on the rv
of the Moguls. It treated those rulers as internation:
sovereign, and made alliances, wars and peace w
them, just as England and France acted with regarc
the elector of Brandenburg or of Bavaria. But -
the Nizam and the rest it bowed, in compliment o1
to Mogul supremacy, again as England and Fra
Brandenburg and Bavaria, all admitted on paper 1
the Holy Roman Emperor was the head of Germar
Thus, when the company obtained from the empe
of Delhi the confirmation of the grants of cer
districts which they had already received from
Nizam of the Deccan and the Nawab of the Carnati

1 See above, pp. 56, 57, 80.
x. RISE OF THE EMPIRE OF INDIA. 195

 

or when it obtained from him a grant of the dewannee,
or administration and enjoyment of the revenue, of
Bengal, Behar and Orissa, of which provinces it was
already in secure possession through the victory of
Buxar, gained by Major Munro over the forces of Mir
Kasim of Bengal and the Nawab Wazir of Oude—
this was very similar to what occurred when Francis I],
in his capacity of Holy Roman Emperor, ceded to
France at Lunéville in 1801 territory including what
she had already obtained from Prussia by the treaty of
Basle in 1795. At least in each case there was the
acceptance of a paper title to confirm what had been
acquired by cession or conquest from the real prede-
cessor, the difference being that the paper title which
Clive deemed it convenient to seek maintained the
paper supremacy of the Great Mogul, while the First
Consul used the authority of the Holy Roman
Emperor for its own extinction in the territory in
question.

The emperor of India had become a puppet in the
hands of the Marhattas when the great campaign,
memorable for the victories of Wellesley (Wellington)
at Assaye and Argaon and of Lake at Delhi and
Laswari, was terminated by the treaty of Sarje Arjen-
gaon, concluded 30th December 1803 with Sindhia,
the Marhatta ruler of Gwalior. By that treaty Delhi
was left in British hands, and the Marhattas ceased
to pull the strings of the puppet, but England declined
the farce of pulling them in her turn. The time had
come for her to assume a position more nearly in
accordance with her real power. The modus vivendi
which was established between the Company and the

1 The analogy is not affected by the emperor’s want of constitutional
power to make that cession without the concurrence of the diet.
13—2
196 INTERNATIONAL LAW. [cH

 

politically effete representative of the Moguls is th
described by Mr Tupper :

“The emperor sought the protection of the British government, an
was arranged that certain territories near Delhi should be assigned
part of the provision for the maintenance of the royal family; that th
lands should remain under the charge of the resident at Delhi; that
revenue should be collected and justice administered in the name of S)
Alam under regulations fixed by the British government; that the k
should appoint a dewdn and other officers ; and that two courts shoulc
established for the administration of the Muhammadan law to the
habitants of the city of Delhi and of the assigned territory, death senter
however being subject to confirmation by the king1.”

An honourable position, commensurate with t
splendour of their former estate, was thus made
the Mogul family within a narrow area, subject
British control even there. But outside that area
use was any more made of the imperial name to clc
the independence of the British power.

“In describing these arrangements on June 2, 1805, Lord Welle
wrote: ‘It has never been in the contemplation of this governmen
derive from the charge of protecting and supporting His Majesty
privilege of employing the royal prerogative as an instrument of establ
ing any control or ascendancy over the states and chieftains of Indiz
of asserting on the part of His Majesty any of the claims which in
capacity of emperor of Hindustan His Majesty may be considere:
possess upon the provinces originally composing the Mogul emg
The benefits claimed were the preclusion of hostile projects, which m
be founded on the restoration of the authority of the emperor under
direction of agents of France, and the confidence and good fee
amongst states and people which the British government could secur
becoming the lenient protector of the representative of the hous
Timur. The Delhi emperor was not to be a Nawab of Arcot |
Nawab of Murshidabad, for the purpose of consolidating British domi
throughout the continent ; for indeed the days when it was necessai
proceed under the countenance of some native power had passed aw:

Thus it was but an empty form that for ne:
forty years more, till Lord Ellenborough stopped

1 Our Indian Protectorate, by Charles Lewis Tupper, p. 38.
2 Thid., p. 39.
x. RISE OF THE EMPIRE OF INDIA. 197

practice, bags of gold were offered to the Great Mogul
by officers representing the British government. Such
tribute, if it can be so called, had no greater significance
than the presents which down even to our own times
Burma and Siam have sent to the court of Pekin. All
that can be said is that a nation less conservative
of old usages than the English would have sooner
discontinued the practice’, Certainly, from 1803, in
order to find a European analogy for the relations
of England to the princes whom she encountered in
India, it would no longer be correct to refer to the
Holy Roman Empire. But it must not be supposed
that this made a substantial difference in the situation,
any more than the fall of the Holy Roman Empire
made a difference to the real relations between the
German states and other European powers, or between
the German states themselves. And in connection
with the history both before and after 1803 we must
next: note a circumstance bearing on the rules of
international law as applicable in India, and not on
the formal footing on which the powers stood between
whom those rules were to be observed.

If the reader will refer to what has been said on
the Rights of Self-preservation actually allowed by
International Law, and on the Alleged right of Self-
preservation against the Contagion of Revolution’, he

1 It was a bad practice, all the same. When the emperor of Delhi
was tried and sentenced for joining the mutineers in 1857, it might have
been pleaded, at least in mitigation, that only some fifteen years before
his dynasty had been still led to believe that England was its tributary.
We fight against an evil as long as we deem it to be formidable, and as
soon as we think we have overcome it we appear to take a delight in
preserving the symbols of it. That is all very well for ourselves, if such
is our pleasure, but allowance ought to be made for its effect on the
minds of others.

2 Above, pp. I114—120, 122—125.
198 INTERNATIONAL LAW. [cH

 

will see that no provision is there contained for

case of a country’s falling into a condition of chrc
misgovernment and anarchy, constituting in itsel
standing danger to neighbouring countries, apart fr
any threat of attack on them or unlawful propaga:
of political principles, and from any preparations le
ing reasonably to the inference that such attack
propaganda is intended. Such a case was not c
templated in the sections mentioned because it d
not occur and can scarcely be imagined as occurr
in the international society of the white race,

therefore it cannot be expected that the law of 1
society shall provide for it. But it is unhappily ac
by no means unknown among those states of ot
civilisations with which the white race is compellec
be in contact, and this is one of the causes why

primary rules of international law cannot be exten:
without limitation to the intercourse resulting fi
such contact®. It is eminently an occasion for ap}
ing the principle that the want of a rule to define
action allowable does not exclude all action, which
been noticed as having a large field in dealings

tween members of the international society and «
siders to that society®. The existence of such a ¢
in Turkey in 1821 was revealed by the Greek in:
rection, and a majority of the great powers had at

1 It will be remembered that chronic anarchy constituting a star
danger to neighbours was the pretext for the successive partitions
ultimate suppression of Poland, but the case, even as it stood, wa
from being as bad as was represented, and the neighbours, with
foresight, had systematically thwarted all the attempts at reform v
were not wanting in Poland. The example has met with general rep!
tion, and is a warning against inscribing any such principle in the
of rules to be applied between ordinary European and American stat

2 See above, p. 82, no, 12, and pp. 102, 103.

3 Above, p. 79, no. 5.
&.,| RISE OF THE EMPIRE OF INDIA. 199

 

to recognise the fact and act on it, although that result
was delayed by the obstinate attempt of Austria to
extend her then favourite principle of legitimacy even
to the Ottoman empire, an attempt which Russia for a
time unavailingly combated on the ground of religion
instead of that of misgovernment. In India England
could not be long in perceiving that the internal anarchy
of the states beyond her borders was one of the chief
causes which had compelled her to advance, and that,
unless it was checked, it would continue to compel her
to advance. Lord Cornwallis hoped that the policy of
non-intervention would lead to its being checked, by
permitting the growth of strong organisations outside
British India through what would now be called the
survival of the fittest. It is not for us to study
here how that expectation was disappointed, for we
have to do with history only in its bearing on inter-
national law. But our purpose obliges us to notice
how Lord Wellesley in 1801, impelled by the neces-
sity which arose from the condition of Oude, ‘annexed
more than half the country and endeavoured, without
success, to provide for the better government of the
residue*.” Lord Cornwallis’s system, even had Lord
Wellesley been inclined to adopt it, would not have
been applicable to Oude, the geographical and other
circumstances of which hardly permitted its being
absorbed without danger to us in any strong extra-
British organisation. In the result, in spite of numer-
ous threats, the successive kings of Oude refused to
conduct themselves better in the territory which re-
mained to them, and in 1855 it was recognised that
the situation had become intolerable, and annexation

1 Lee-Warner, The Protected Princes of India, p. 91.
2 Tupper, Our Indian Protectorate, p. 65.
200 INTERNATIONAL LAW. [ CHAP.

 

was determined on. In the minute written on that
occasion by him as a member of council, Sir J. P.
Grant placed our right, among other grounds, on our
having succeeded to the empire of the Mogul, and to
his duty of terminating incorrigible misgovernment in
his dominions. Lord Dalhousie, in his minute, re-
jected that ground, but in his dealings with Sattara he
had claimed that the British government was ‘the
successor of the emperors of Delhi.” These however,
on one side or the other, were the reasonings of
individual statesmen. In no public act did the British
government claim any political power as deduced to it
from the pageant dynasty which it maintained at
Delhi, and even in 1801 Lord Wellesley dealt with
Oude as an independent state, regardless of con-
stitutional memories which had ceased to have any
correspondence with fact. The intervention on the
ground of misgovernment to which he had recourse
was not founded on any question about Oude’s pos-
sessing that character, but on the principles of inter-
national law which it was necessary to apply to in-
dependent states in India.

The native states have since lost the character of
independence, not through any epoch-making declara-
tion of British sovereignty, but by a gradual change
in the policy pursued towards them by the British
government. Encountering the ambition of some of
its neighbours and the internal anarchy of others, and
the efforts of France or of French adventurers to build
on those elements a power rivalling its own, that
government was early led to see that its only security,
even within the limits which it had from time to time
attained, was to make for itself among the states of

1 Tupper, Our Indian Protectorate, pp. 76, 78, 87.
=| RISE OF THE EMPIRE OF INDIA. 201

 

India such a preponderant position as Charles V,
Louis XIV and Napoleon had essayed or were
essaying with less justification to make for themselves
among the states of Europe. This, and little more,
was its purpose until ten years after the time when the
Great Mogul ceased to be a mysterious fountain from
which his strongest neighbour might pretend to draw
authority.

“With respect to the French, supposing the present questions in
Europe not to lead to an immediate rupture, we are now certain that the
whole course of their policy has for its object the subversion of the British
empire in India, and that at no distant period of time they will put their

-plans in execution. It is absolutely necessary for the defeat of those
designs that no native state should be left to exist in India which is not
upheld by the British power, or the political conduct of which is not
under its absolute control.” Sir George Barlow, on the policy of the
treaty of Bassein (31st December 1802), 12th July 1803: Tupper, Our
Indian Protectorate, p. 33-

“The fundamental principle of His Excellency the governor-general’s”
[Lord Wellesley’s] “policy in establishing subsidiary alliances with the
principal states of India is to place those states in such a degree of
dependence on the British power as may deprive them of the means of
prosecuting any measures or of forming any confederacy hazardous to the
security of the British empire, and may enable us to preserve the tran-
quillity of India by exercising a general control over those states, calculated
to prevent the operation of that restless spirit of ambition and violence
which is the characteristic of every Asiatic government, and which from
the earliest period of Eastern history has rendered the peninsula of India
the scene of perpetual warfare, turbulence and disorder. The irremedi-
able principles of Asiatic policy, and the varieties and oppositions of
character, habits and religions which distinguish the inhabitants of this
quarter of the globe, are adverse to the establishment of such a balance of
power among the several states of India as would effectually restrain the
views of aggrandisement and ambition and promote general tranquillity.
This object can alone be accomplished by the operation of a general
control over the principal states of India established in the hands of
a superior power, and exercised with equity and moderation through the
medium of alliances contracted with those states on the basis of the
security and protection of their respective rights.” Despatch from the
Indian government to the resident at Hyderabad, 4th February 1804:
Ibid., p. 40.

“The picture above drawn of the state of politics among Asiatic
202 INTERNATIONAL LAW. [CHapP.

 

powers proves that no permanent system can be adopted which will
preserve the weak against the strong, and will keep all for any length of
time in their relative situations and the whole in peace, excepting there
should be one power which, either by the superiority of its strength, its
military system or its resources, shall preponderate and be able to protect
all.” Reply of General Wellesley (Wellington) to Lord Castlereagh’s
strictures on the treaty of Bassein, probably written in November 1804:
Tupper, Our Indian Protectorate, p. 36.

The chief place among the alliances referred to in
the second of the preceding extracts was held by those
known in Indian history as subsidiary alliances. These
attained under Lord Wellesley, though they did not
originate under him, a developed form which, with
more or less variation in particular cases, may be
described as follows. They established friendship be-
tween the contracting parties, who employed towards
one another all the complimentary language befitting
independent powers, and British interference in the
internal affairs of the native state was excluded. The
native prince bound himself to have no negotiations
with any other power without giving previous notice
to the company’s government and entering into mutual
consultation with it, and to submit his differences with
third parties to the company, which was to aid him if
it failed to adjust the difference on reasonable terms ;
and he on his part was to help the company in case of
attack on it with forces fully proportioned to his
means. The company was to supply a certain sub-
sidiary force, not to be employed on trifling occasions
or in collecting the prince’s revenue, but to execute
services of importance, such as the care of the prince's
person, the protection of his country from invasion,
and the suppression of rebellion against him; and the
cost of that force was borne by the prince, either in
periodical payments or, as was oftener the case, by the
x. | RISE OF THE EMPIRE OF INDIA. 203

 

cession of territory deemed equivalent. And there
might or might not be a stipulation for another force,
called a contingent, to be maintained by the prince for
general service with the British troops pursuant to his
obligations, and to be commanded by British officers.
A European power, at the close of an unsuccessful
war, has often had to submit to terms little less
onerous, and the condition thus made for a state did
not cause it to drop out of international existence.
The native states subjected to the system were com-
monly described as protected, and this was an accurate
description, but the kind of protectorate intended by
it must be carefully considered. Of course it was not
that kind of veiled or suspended sovereignty which
occurs in the case of a protectorate over an uncivilised
region: it was a relation existing towards a state,
though one enjoying what I have called another civi-
lisation than ours. Neither was it a case in which the
protected state was represented in its foreign affairs by
the protecting one, for negotiations between the pro-
tected state and third ones were not excluded, but the
protecting state was to have an opportunity of con-
trolling them, and the protected state was not to carry
them to the point of war without submitting itself to
the company’s decision. The two did not stand
before the international society of India as forming
one system, the parts of which might have different
international relations, but to one alone of which it
was admissible for third states to address themselves
in matters concerning the international relations of
either. It was a case in which the protected state was
controlled in its foreign affairs by the protecting one’.
And Lord Cornwallis, who in his second governor-

1 See above, pp. 177, 178.
204 INTERNATIONAL LAW. [cHap.

 

generalship succeeded Lord Wellesley, was anxiously
desirous to remove all fear that the tie might be drawn
closer by interference in the internal concerns of the
protected states, beyond what might be imperatively
demanded for the security of the company’s own
dominions.

But even this system failed to establish throughout
the peninsula the pax Britannica which was indis-
pensable for the secure enjoyment of quiet by the
company’s possessions. The next steps in advance
which were taken in treaties and grants were to exclude
the prince dealt with from having any connection or
engagement with other chiefs or states, and even to
make the sanction of the British government necessary
for his having any communication with them, sometimes
but not always with the exception of amicable corre-
spondence between friends and relations—thus trans-
forming the protectorate into one in which England
became the sole representative of the native state in all
external intercourse—and to bind the prince to “act
in subordinate cooperation with the British Govern-
ment,” sometimes also to ‘be guided in all matters
by the advice of the British agent.” These steps
mark the governor-generalship of Lord Hastings,
which extended from October 1813 to the first day
of 1823’. By virtue of them that administration may
be singled out as the turning point in the course of
shifting the affairs of India from an international to an
imperial basis, although that course neither began with
it nor was completed by it. The isolation of the
native states was the negation of an international
society, and subordinate cooperation in maintaining

1 Lee-Warner, Zhe Protected Princes of India, ch. iv. and ch. ix.; and
see Tupper, Our Indian Protectorate, ch. ii. and ch. iii.
=. RISE OF THE EMPIRE OF INDIA. 205

 

the pax Britannica implied that the peace to be main-
tained was the peace of the imperial state to which the
cooperation was subordinate. ‘In 1819,’ Mr Lee-
Warner says, Lord Hastings “raised the Wazir of
Oude to the dignity of king, thus announcing not
merely that the ruler of Oude no longer held his title
from the emperor of Delhi, but that the British govern-
ment, which had pensioned the emperor and suppressed
the sovereignty of the Peshwa, could bestow a kingly
title.” True: and the difference is obvious between
such a bestowal and the assumption of a higher title by
a European prince, notified by him to his fellow
sovereigns, and then employed by them in their cor-
respondence with him.

The princes whose treaties or grants dated from an
earlier period were not called on, in the absence of
other circumstances requiring it, to enter into new
treaties or to accept new grants expressing isolation
and subordination. The British government preferred
to adopt on its own responsibility the principle that it
was not only preponderant in India but paramount,
not merely the strongest power but the rightful superior,
and that all treaties and grants of whatever date were
to be construed as reserving the exercise of that su-
periority when needed for certain beneficent purposes.
There was a very large number of princes, mostly with
small possessions, who enjoyed British protection
without any treaty or grant ; and the paramount posi-
tion was equally claimed over them. Although this
far-reaching principle was not inscribed in any pro-
clamation or other public formula, its adoption can
scarcely be called tacit, for it was avowed by statesmen
on occasions calling for its application.

lus. p. 115.
206 INTERNATIONAL LAW. [ CHAP.

 

“¢We have by degrees,’ said Sir Charles Metcalfe—I quote here from
Marshman, vol. ii. p. 408—‘ become the paramount state in India. In
1817 it became the established principle of our policy to maintain tran-
quillity among the states of India;...... and we cannot be indifferent
spectators of anarchy therein without ultimately giving up India again to
the pillage and confusion from which we then rescued her....... We are
bound, not by any positive engagement to the Bhurtpur state, but by our
duty as supreme guardians of tranquillity, law and right, to maintain the
legal succession of Balwant Singh....... Our supremacy has been violated
or slighted under the impression that we were prevented by entanglement
elsewhere from sufficiently resenting the indignity....... A display and
vigorous exercise of our power, if rendered necessary, would be likely to
bring back men’s minds in that quarter to a proper tone ; and the capture
of Bhurtpur, if effected in a glorious manner, would do us more honour
throughout India, by the removal of the hitherto unfaded impressions
caused by our former failure, than can be conceived.’ This advice was
accepted and acted on. Lord Lake had been baffled before Bhurtpur in

1805. It was quickly taken in 1826 by Lord Combermere.” Tupper, Our
Indian Protectorate, p. 55.

The treaty of Umritsur, 16th March 1846, guaran-
teed the independent possession of Kashmir to the
Maharaja Golab Sing. On 7th January 1848 Lord
Hardinge, who had himself made that treaty, found him-
self under the necessity of stating to the Maharaja that
“the British government are bound by no obligation
to force the people to submit to a ruler who has de-
prived himself of their allegiance by his misconduct.”
And he supported that statement by saying: “ Your
highness is aware of the principle by which the British
government is guided in its treaties with Eastern
princes.” That is, he construed a treaty not by its
bare words, but as necessarily reserving the right of
the paramount power to follow its known principles of
action. The doctrine has been well put as follows:
“ There zs a paramount power in the British Crown, of
which the extent is wisely left undefined. There zs a
subordination in the native states, which is understood
but not explained. The paramount power intervenes
x. RISE OF THE EMPIRE OF INDIA. 207

 

only on grounds of general policy, where the interests
of the Indian people or the safety of the British power
are at stake. Irrespective of those features of sove-
reign right which native states have for the most part
ceded or circumscribed by treaty, there are certainly
some of which they have been silently but effectually
deprived.” And the latest expounder of our Indian
system, who is also one of the most authorised, teaches
that the treaties and grants held by the protected
princes, and the precedents of our dealings with them
and with the protected princes who hold no treaties or
grants, must be read as a whole, like the decisions of
English courts of justice, so that the principles most
recently laid down are to be applied to all, and those
relating to any department of conduct, as military
affairs or the duties of humanity, are to be ascertained
for all from the document in which that department is
most fully worked out for any one—a doctrine which
evidently presupposes the enjoyment of a very thorough
superiority by the power to the unilateral acts of which
such an effect is ascribed’,

A paramount power such as this is defined by
being, wisely or not, left undefined. That to which
no limits are set is unlimited. It is a power in India
like that of the parliament in the United Kingdom,
restrained in exercise by considerations of morality
and expediency, but not bounded by another political
power meeting it at any frontier line, whether of
territories or of affairs. It is in fact the power of the
government and parliament of the United Kingdom
themselves, and the protected Indian states may rely
on its exercise towards them being confined within
limits not more vaguely understood than those within

1 Lee-Warner, Zhe Protected Princes of India, pp. 37—40.
208 INTERNATIONAL LAW. [ CHAP.

which an Englishman relies that its exercise towards
him will be confined. But it exists, it constitutes the
British empire in India, and it is incompatible with
international relations between the princes which are
subject to it, or between them and the empire. No
precise date can be named for its establishment, for
several reasons. Its immediate historical origin being
that of a doctrine become a habit, and the habit of
command being insufficient to establish a political con-
dition without the habit of obedience, there is twice
the usual uncertainty which attends the question of
when a habit became fixed. And the subject is
further veiled by what inevitably accompanied gradual
development, namely that the forms and language
befitting international relations continued to be used
in many cases after such relations had really ceased.
But limiting dates may be named. The empire in
a strict sense, as now understood, is a distinct ad-
vance on the treaties concluded by Lord Hastings,
though the rhetorical employment of the name may be
found earlier. He probably foresaw the advance, for
he recorded his opinion that the right of bestowing
titles should be exercised direct by the British govern-
ment, as an “essential and peculiar attribute of sove-
reign rule’” ; but certainly the double habit referred to
had not been formed in his time. On the other hand,
British statesmen must have firmly held the imperial
doctrine for themselves, and perhaps also have been
convinced that already before the mutiny it had
acquired a strong hold on native opinion, when in
January 1858 they placed the so-called king of Delhi
on his trial for “that he, being a subject of the British
government in India, and not regarding the duty of

 

1 u.s., p. 308,
x. | RISE OF THE EMPIRE OF INDIA. 209

 

his allegiance, did at Delhi, on May 11, 1857, or there-
abouts, as a false traitor against the state, proclaim and
declare himself the reigning king and sovereign of
India, and did then and there traitorously seize and
take unlawful possession of the city of Delhi, &c.”
And after the suppression of the mutiny not even the
native princes or their subjects can have felt much
doubt that the imperial doctrine had acquired practical
reality. Thus the forty years from 1818 to 1858 are
all, or more than all, that can be allowed for the
growth and establishment of the imperial idea.

Lastly, it may be asked by which of all possible
international titles England holds the sovereignty or
zmperium of India. It is not by occupation, for India
possessed a civilisation placing her as far as Europe
beyond the reach of any such title. It is by cession or
conquest, so far as concerns the territories under direct
British government; but so far as concerns those under
the immediate government of the protected princes it
is not by cession, for with many of them there are no
treaties, and we have seen that the imperial right is
claimed as overriding the letter of the treaties which
there are. Neither does the right over the protected
states present an ordinary case of conquest, for con-
quest usually operates either by the suppression of the
conquered state, as in the case of Poland, or by cession
when the defeated state is left in existence to make it.
The imperial right over the protected states appears to
present a peculiar case of conquest, operating by
assumption and acquiescence.

We have now followed in outline the public rela-
tions which England has entered into in India or has
assumed there. To put the case with strict accuracy,
it would be necessary to describe the phases of those

Ww. 14
210 INTERNATIONAL LAW. [cue

 

relations which have been traced as being the mc
advanced ones that at each successive time have exist
between England and any Indian states. To comple
the picture of the rise of the empire, we should ha
also to follow the geographical advance from the fo:
of Bombay, Madras and Calcutta to the Sulimz
Karakoram and Himalaya mountains and the front:
of Siam. If this were done we should find a syste
of two limits early established, and each limit ther
after constantly receding. The narrower at any dz
would bound the territory absolutely acquired
England, and outside the wider would be the stat
with which relations on a footing of equality we
still entertained by her. Between the two, we shot
see at first forms of relation in which her prepondere
power stood confessed, but these would give way
forms which acknowledged her paramount but r
undefined authority, and those in turn would be :
placed, or modified in their effect, by her assumpti
of an imperial position. The narrower limit now
cludes about three-fifths of the area, and a still larg
proportion of the population, comprised between t
Suliman range and Siam: the wider limit includes t
whole, except Nepal, Bhutan, and the almost imp:
ceptible possessions of France and Portugal. Betwe
the two limits, more than six hundred native princ
acknowledge the queen of England as empress of Ind:
and even Nepal and Bhutan, although their relatic
with England are conducted on international principl
cannot be regarded as standing towards her on 1
same footing of political equality on which the gr
powers of Europe stand towards one another’.

1 See political equality distinguished from legal, above, p. 92. ~
treaty of 1816 “excluded the intervention of Nepal in the affairs of Sikk
x. | INDIA IN RELATION TO INTERNATIONAL LAW. 211

 

But to complete in this manner the sketch which
has been given would be to write history in the
light of international law, and not to illustrate the
theory of international relations by history. What
remains for us to do with regard to the empire of
India is in the first place fully to exhibit its inter-
national unity, obscured as that sometimes is by the
use of language which has descended from earlier
stages of its existence, and in the second place, in
order that the true character of the imperial power
may not be misunderstood, to indicate the boundaries
which it has set to itself in dealing with the subordinate
members.

The Empire of India im relation to International
Law.

The empire may be said to comprise all the
Gangetic peninsula except Nepal and Bhutan, and
the western part of the Transgangetic peninsula. The
six hundred subordinate members which are found
within those limits are called in British. law princes
or states in alliance with Her Majesty, and the popu-
lation of their dominions is described as their subjects,
while the remainder of the total area is described as
‘British India or the Indian territories under the
dominion of Her Majesty, and its population as British
subjects or subjects of Her Majesty. What is the

and precluded the employment or retention of British, or foreign
European, or American subjects in the service of the Gurkha government
without the consent of the Company :” Lee-Warner, Protected Princes of
India, p. 98. Thus the political inferiority of Nepal to England is more
marked than that of the smaller European powers, as such, to the greater.
But there is no doubt that she is not included in the empire: she made

her own peace with Tibet in 1856. 5

14—2
212 INTERNATIONAL LAW. [cH

 

real significance of these appellations we shall have
consider, but they are so carefully maintained tha
subject of a native prince is capable of the same p
cess of nationalisation which is applicable to a Fren
man or a German, and, without it, does not even
British India possess the rights of a British subject.

The most important characteristic of the politi
condition of the native states is thus expressed in
preamble of the act of parliament which applies
them the British Indian legislation against the sl:
trade, st. 39 and 4o Vict., c. 46:

“‘ And whereas the several princes and states in India in alliance °
Her Majesty have no connections, engagements or communications '
foreign powers, and the subjects of such princes and states are, w
residing or being in the places hereinafter referred to, entitled to the
tection of the British government, and receive such protection equ
with the subjects of Her Majesty.”

The places referred to are the high seas, or <
part of Asia or Africa which the queen may specify
order in council, but this is only because the act rela
to the slave trade. What is said is equally true
any part of the world, and must be so, because -
power which cuts off the native princes from the cc
munications that would be involved in self-help can:
do less than undertake the protection for which s
help is consequently wanting. With that enlargem:
the parliamentary recital is true at the present day
all the six hundred subordinate members of the emp:
from the smallest to the greatest, whether they h
treaties or grants or depend for their position entir
on precedent or understanding, and whether or not 2
treaties or grants which they may hold express th
position fully and correctly according to the presi
understanding. They have no official intercourse eit]
with one another or with any power outside the emp:
x. | INDIA IN RELATION TO INTERNATIONAL LAW. 213

 

They cannot even send representatives to Calcutta,
but must communicate with the British government
through the British representatives at their courts.
When it is necessary to establish a course of extra-
dition or of any other dealing between two of them,
each has to make an agreement with the British
government to that effect, or, according to the practice
now preferred, the British government frames rules
to which both the native princes are invited to con-
sent, and for the execution of those rules each of them
pledges himself to comply with the demands of the
other when intimated through the resident at his court.
They cannot unite in any representation to the govern-
ment of India, even when having identical interests on
any question, but each must approach it separately.
Not only can they not receive for themselves even the
commercial agents of foreign states, but they have no
direct communication with the consuls or commercial
agents accredited by foreign states to the govern-
ment of India. They are precluded from receiving
foreign decorations or even academic distinctions except
through the British government, and from conferring
any honours or privileges on any persons but their
own subjects. They cannot employ Europeans or
Americans in their service without the consent of the
British government.

The particulars thus far mentioned would not be
incompatible with international relations which might
be represented as an extreme case of a protectorate
exercised by one state over others. The native states
of India might have had with foreign powers relations
of their own, distinct from those of the protecting
state, although entirely managed for them by the latter,
as the Ionian Islands were capable of being at peace
214 INTERNATIONAL LAW. [cra

 

with Russia while England, which was their protect
and managed their foreign affairs, was at war with th
power. It is true that consuls, though not diplomat
envoys, were accredited to the Ionian Islands, whi
therefore were in a position of less complete depen
ence than the native Indian princes would have he
even had there been no more to say; but the extren
dependence of the latter would not have amount
to complete international effacement. There is ho
ever more. Not only are separate relations betwe
England and the respective allied states substitut
for any international society within the empire, but
is the settled policy of England, in negotiation wi
foreign powers, to treat the empire as a whole, and n
to admit distinct relations of such powers to its sever
parts. Even the limited meaning, with which f
internal purposes the term “ British subjects” is e1
ployed, is occasionally relaxed for external purpose
Thus the Sultan of Muskat, by the treaty of 187
agreed that in all treaties between him and Engla
the words ‘British subjects” should include subjects
native Indian states. If this is not done, still, as in t.
treaty of 1874 with Yarkand, the subjects of the nati
states are placed on the same footing with British su
jects, as a part of the agreement made with Englan
Foreign powers are permitted to know the nati
states exactly as far as the United States of Ameri
permit them to know the several states of the unic
and no further. The names of either may occur amo!
the facts with which a negotiation deals, but nothi)
can be concluded with them or in their name.

would be understating the case to say that the empi
of India is an international unit. The true inte
national unit, for peace or war, neutrality or negoti
| INDIA IN RELATION TO INTERNATIONAL LAW. 215

 

tion, is the United Kingdom and its dependencies, of
which the empire of India is one. If a commercial
or other treaty between England and some foreign
power is not made to extend to India, that is only as
it might be made not to extend to New South Wales ;
and this, in either case, would be only as a treaty
might stipulate rules to be observed by shipping as far
as a certain cape and no further.

Hence the native princes who acknowledge the
imperial majesty of the United Kingdom have no in-
ternational existence. That their dominions are con-
trasted with the dominions of the queen, and that
their subjects are contrasted with the subjects of the
queen, are niceties of speech handed down from other
days and now devoid of international significance,
though their preservation may be convenient for pur-
poses internal to the empire, in other words for con-
stitutional purposes. So too the term ‘‘protectorate”
as applied to the empire in its relation to those princes,
and the description of their subjects, when abroad, as
persons entitled to British protection, are etymologically
correct, but they do not bear the technical meaning
which belongs to the protection of the republic of San
Marino and its citizens by the kingdom of Italy, or
that other technical meaning which belongs to a pro-
tectorate in Central Africa. They are etymologically
correct because every state is the protector of its own
people, and the United Kingdom has, for international
purposes, absorbed the Indian princes and their sub-
jects into itself. And the government of India was
fully justified in the notification which it published in
its official gazette, No. 17008, 21st August 1891:
“The principles of international law have no bearing
upon the relations between the government of India
216 INTERNATIONAL LAW. [cua

 

as representing the queen-empress on the one han
and the native states under the suzerainty of H
Majesty on the other. The paramount supremacy
the former presupposes and implies the subordinati
of the latter*.”

The Indian government itself has admitted ai
acted on the existence of a personal tie between t
queen-empress on the one hand and the native princ
and their subjects on the other hand, which might n
only be described with etymological accuracy as t
subjection of the latter to the former, but which is t
very tie that in political language is described as t
relation of sovereign to subject, whenever the histo
of its origin does not furnish a motive for abstaini
from the use of those terms. Loyalty and allegian
as expressing the duty to the queen-empress, treas
and rebellion as expressing the breach of that duty, <
terms familiar in Indian official language. We ha
seen what were the charges on which the last of t
Moguls was tried, emphatically marking as they
that the transition from an international to an imper
system in India was complete’. In 1875 the Gaekw
of Baroda was tried for an attempt to poison t
British representative at his court, under a proc
mation of 13th January 1875 in which it was sai
“whereas to instigate such attempt would be a hi
crime against Her Majesty the queen, and a brea
of the condition of loyalty to the crown under whi
Mulhar Rao Gaekwar is recognised as ruler of |
Baroda state, and moreover such an attempt would
an act of hostility against the British governmen

' Lee-Warner, “ The Protected Princes of India,” p. 373.
* Above, p. 208.
Sul INDIA IN RELATION TO INTERNATIONAL LAW. 217

 

Now there was no treaty with Baroda or grant to the
Gaekwar in which the condition so referred to was laid
down. The Gaekwar was deemed to be subject to it
only by virtue of the imperial doctrine that the position
of all the native princes is to be ascertained from the
principles latest adopted in dealing with any of them,
as the position of all vendors and purchasers of pro-
perty, or of all drawers and endorsers of bills of
exchange, is to be ascertained from the latest decisions
with regard to any of them. The grants (sazads) by
which the native princes were secured in the per-
petuity of their dynasties had long run in a form
adopted by Lord Canning in 1858.

“Her Majesty being desirous that the governments of the several
princes and chiefs of India who now govern their own territories should
be perpetuated, and that the representation and dignity of their houses
should be continued, I hereby in fulfilment of this desire convey to you
the assurance that, on failure of natural heirs, [the adoption, by yourself
and future rulers of your state, of a successor according to Hindoo law and
the customs of your race will be recognised and confrmed.] Be assured
that nothing shall disturb the engagement just made to you, so long as
your house is loyal to the crown and faithful to the conditions of the
treaties, grants and engagements which record its obligations to the
British government.”

For Mahomedan princes the words in square
brackets were replaced by :

“any succession to the government of your state which may be
legitimate according to Mahomedan law will be upheld.”

Still, it might have been argued that the condition
of loyalty, with the accompanying liability to punish-
ment in case of its breach, applied only to the prince
and not to his subjects; just as in the feudal system, as
it existed on the continent of Europe before men’s
ideas of the royal power were enlarged by its beneficent
operation under kings like St Louis and by the revived
study of the Roman law, the vassal of a vassal owed
218 INTERNATIONAL LAW. [cHs

 

allegiance only to his immediate and not to his ultim:
superior. But in the case of Manipur the princi
which William the Conqueror established for the feuc
system in England, that the whole population ow
allegiance to the king in addition to the ties whi
may bind individuals to mesne lords, was seen
operation for the empire of India. In that case,
1891, trial and punishment for breach of the conditic
of loyalty were extended to subjects of a native sta
one of wham had indeed usurped the throne but h
not been recognised on it by the Indian governme!
and that government officially enjoined “the subje
of the Manipur state to take warning by the punis
ments inflicted on the persons guilty of rebellion a
murder.”

Mr Austin made his definition of law depend
the existence in a state of a subject part, habitua
obeying the general commands issued by another p:
which he called the sovereign’. The question of asc:
taining the sovereign part in the empire of Ind
and the more difficult one what importance should
attached to the solution if it could be discovered, m
have at times perplexed the men who with hi
education and great practical ability have moulded tl
empire. But neither question was relevant external
and internally both have in effect been happily ignore
To international law a state is sovereign which deme
itself as independent; a state is semi-sovereign to t
extent of the foreign relations which the degree of
practical dependence allows it ; and is non-existent if
foreign relations are allowed it. This, whatever mr
be the constitutional theories relating to them respe

1 Of course a man may individually be an Austinian subject, at
same time that he is a member of a corporate Austinian sovereign.
x. | INDIA IN RELATION TO CONSTITUTIONAL LAW. 219

 

ively. And the empire of India has been moulded
in its constitutional substance by no deduction from
assumed principles of sovereignty, but by the essential
conditions of peace and order in the circumstances,
complied with so far as those great interests of man
demanded, yet on the whole with a prudent and tender
reverence for such native institutions of government as
were compatible with them, and for the sentiments
which accompanied those institutions and their names.

The Empire of India in relation to Constitutional

Law.

I must ask the reader to bear with me if I pursue
the subject of India a little further than may properly
belong to a series of chapters on international law.
There are some points forming a natural sequel to the
line of thought which has been here pursued; con-
stitutional points, in the sense in which that term has
already been employed in this book. Wherever a
body presents itself externally as a unit—whether out-
siders pay an entire regard to its unity, as they do to
that of France or the United States of America, or to
that of the German empire so far as that empire
presents itself externally as a unit, or whether they pay
as little regard for the unity claimed by the body as
was paid to that claimed by the Holy Roman empire
during the last period of its existence—in every such
case the term “constitutional” may fairly be used to
express whatever political relations, possessing any
degree of fixity, exist between the smaller bodies or the
individual men that constitute the unit. Those relations
may be guarded by definite rules applied by the regular
220 INTERNATIONAL LAW. [cH

 

action of public force, or they may be guarded only
understood habits of action. Some part of them, <
not always the same or a corresponding part, may
distinguished as constitutional in a narrower ser
Thus what is called the constitution of the Uni
States is no less a set of definite rules applied by
regular action of public force than is any statute pas:
by congress; while in England it is understood hat
of action that are usually called constitutional, in c
trast to such rules. The term is used in another narrov
sense when government by an absolute monarch
called unconstitutional, even although the monarc
follows understood habits of action, while governm:
by a parliament is called constitutional, without ref
ence to whether the parliament follows understood hat
of action. But experience teaches that no term «
secure for itself a settled and permanent meaning,
matters so complicated and variable as are the politi
institutions of men. Perhaps, in such matters, no mi:
can be expected of a writer than that the distinctic
he tries to express shall be real and important, that :
terms which he selects to express them shall 1
violently shock current usage, and that he shall emp
them consistently. On those conditions he may
read with advantage, although his terms may ne’
become fixed in the senses which he gives them, 1
does he intend that they should. A student of int
national relations as they are, and not as an atten
may be made to mould our conception of them b:
priori definitions, can hardly avoid grouping togeth
in contrast to them, all other political relations wh
possess any degree of fixity; and an extension of ©
term ‘‘constitutional” to meet that purpose seems |
to be a forced one, while any writer on the inter
XK: | INDIA IN RELATION TO CONSTITUTIONAL LAW. 221

 

affairs of an empire will none the less be free to use it
in his own manner.

The first point to be noticed in this section is
almost forced on us even as international lawyers, in
order that we may comply with the law of thought
which makes it necessary to supply a true notion in
order to drive an untrue one out. We have seen that
the Indian “states in alliance with Her Majesty” are
not states in any international sense: what then is the
constitutional sense in which they are states? In
Indian political language the test which distinguishes
a native state from British territory is that the former
is not subject to legislation by the governor-general in
council or by the legislative councils of the presidencies,
or to the jurisdiction of the ordinary British courts of
law. Thus, with regard to treaties in which the Com-
pany had agreed to have “no manner of concern with
the Maharaja’s subjects,”

“Tt was explained,” Mr Lee-Warner says, “that the Company had
guaranteed the states against the intrusion of its own courts of law, or
against any extension of its ordinary jurisdiction beyond the territorial
limits of the Company’s possessions. But where interference and the
intrusion of British jurisdiction were absolutely called for, as the only
means of avoiding annexation”—because the power which protected the
princes and maintained them on the throne could not be deaf to the cries
which from time to time arose against their misgovernment—“ the courts
which were created for its exercise were established by the government
in its executive capacity, and not by the legislative authorities of British
India. This cardinal distinction may appear subtle, but it has been the
cornerstone of the judicial system introduced into the Indian states!.”

And with regard to certain states which were tri-
butary to the Gaekwar of Baroda, and were taken over
from him by the Bombay government, and subjected
to a special system on account, not of any abuses, but
of their extreme smallness, Mr Lee-Warner writes :

1 The Protected Princes of India, p. 13.
222 INTERNATIONAL LAW. [ cH.

 

“The rest of the once semi-sovereign communities are grouped ur
one or more political divisions called shana circles, over each of whic
thanadar with magisterial and judicial powers presides. All of
descendants of the original chiefs conduct the revenue administratio
their patches of territory on their own system, and are treated as bey
the jurisdiction of British India. But their jurisdictory powers vest
them, and by their tacit assent, in the political officers of governm
The thanadars, and the British agent who supervises them, are subjec
the orders of the British government but not to the jurisdiction of
High Court. The native state thus subsists, and is not converted :
the British province ; and the remedy applied avoids the precedent se
Rome of annexation under the plea of misrule. That which has happe
in the Mahi Kanta has occurred also in Kathiawar and in the Ri
Kanta, where many talukdars who have lost their jurisdiction retain
status of native chiefs1.”

Here also, as in the former extract, the jurisdicti
of the political officers was conferred on them by Brit
executive acts of state, and not by acts of the Ind)
legislatureg. So too the various trials of native princ
and that of the Manipurees, have been by special co
missions instituted by executive acts. But the Brit
parliament is supreme throughout the empire, 2
although it does not in fact make laws to be carr
into effect within the dominions of the native princ
yet the Act 39 and 4o Vict., c. 46, contains a rema
able assertion of its supreme authority. The object
that act was to extend the British Indian legislat
against the slave trade to the subjects of the nat
princes, commensurately, as was just, with the protect
received by them abroad from the British crown. A
it provided that if they should contravene that leg
lation “upon the high seas or in any part of Asia
Africa which Her Majesty may from time to time th

1 The Protected Princes of India, pp. 35, 36; and see pp. 109—
The reader will notice the use of the term “political” establishe
India, meaning what relates to foreign affairs or to those of the na
states. It furnishes another example of the endless variety with w:

we must always expect that terms relating to the doings of men wil
employed.
Xi. | INDIA IN RELATION TO CONSTITUTIONAL LAW. 223

 

fit to specify by any order in council,’ they may be
dealt with as if the offence had been committed by
them at any place in British India where they may be
found. We have seen that while most countries apply
more or less of their criminal legislation to acts com-
mitted by foreigners in foreign countries, always under
the condition that it can only be enforced within the
physical limits of their own sovereignties, England has
hitherto refrained from doing so. When therefore the
enactment in question is read in the light of English
ideas, it will be seen to rest on the principle that the
subjects of the native Indian princes are British sub-
jects.

This being so, the constitutional position of a native
Indian state (so-called) appears to be that of a separate
part of the dominions of the queen-empress, as New
South Wales and British India are other such separate
parts—having its local government, vested in its native
prince—that local government subject both to the
sovereign as executive head of the state formed by all
her dominions, and to the parliament of the United
Kingdom of Great Britain and Ireland as the legislative
head of the same state—the authority of the sovereign
as executive head applied to it through the British
Indian government and the controlling department in
England, both acting in that respect distinctly from
their functions with regard to British India, and not
limited in theory by the principles which, being carried
out with them by settlers from the United Kingdom,
limit that authority in colonies founded by settlement
—but both the authority of the sovereign as executive
head and that of parliament limited in practice by con-
siderations pointing to the past and to the future,

1 See above, pp. 127, 128.
224 INTERNATIONAL LAW. [ CHAP

 

respect for the long and splendid history of the pri
and their peoples, and belief that under British su
intendence they can be the most useful instrument
their own advancement. It is a position which, in
degree of dependence, is intermediate to those «
self-governing colony and of a crown colony.
name of sovereign is still attached to it, but really
a position of constitutional, though not of internatio
semi-sovereignty*.

In the constitutional situation thus presented Bri
India and the native states stand in a quasi-fore
relation to one another, and we are prepared to
the legislature of the former making laws, enforce:
within its limits, for observance by its proper subj
in the latter, or even outside the empire altoget
Accordingly we find the governor-general in cou
progressively receiving from parliament power to m
laws “for all servants of the Company within
dominions of princes and states in alliance with
Company” (st. 3 and 4 Wm. 4, c. 85); “for all Bri
subjects of Her Majesty within the dominions of prit
and states in India in alliance with Her Majesty, whe:
in the service of the government of India or ot
wise” (st. 28 and 29 Vict., c. 17); and “for na
Indian subjects of Her Majesty without and bey
British India” (st. 32 and 33 Vict. c. 98). But.
this there comes into combination the fact that
expressed in the preamble to the Indian Act X
of 1879, “by treaty, capitulation, agreement, gt
usage, sufferance and other lawful means, the gover
general of India in council”—this time not repres
ing the special government of British India, but as
executive organ for applying the imperial supremac

1 See above, p. 89.
INDIA IN RELATION TO CONSTITUTIONAL LAW. 225

 

“has power and jurisdiction within divers places be-
yond the limits of British India.” The authority thus
exercisable by the governor-general within native
states, so far as it is in the form of jurisdiction, is in
some of its branches defined by certain localities, and
consequently includes a jurisdiction over all persons in
such localities. Examples are furnished by the houses
and grounds occupied by the residents and _ political
agents in native states (not accredited to the princes
as though these were international entities)—by rail-
ways having through communication and some parts
of canals—and by certain stations at which imperial
jurisdiction is desirable on account of British trade,
European residents, or imperial administration—so far
in all these cases as the localities have not been made
parts of British India, but, as is now the practice, have
been left as parts of native states subject to special
imperial rights. In other branches the imperial juris-
diction in question is over persons within native states,
irrespective of any particular locality within them.
Examples are furnished by European British subjects,
who are not as a rule left to native justice, though they
may be so in special circumstances, especially if they
have entered the service of a native prince—by servants
of the British government or of the political agent, or
of any officer of the British government officially
employed within the state—and by some cases in which
an imperial jurisdiction, called “residuary,” is exercised
over certain subjects of the native states within their
boundaries. In all the other cases mentioned in this
paragraph the imperial jurisdiction is described as
“delegated,” while again the term “‘residuary ” includes
the extraordinary jurisdiction which we have already
noticed as being exercised over native princes and
Ww. 15
226 INTERNATIONAL LAW. [ CHAP.

 

their subjects for rebellion, and that which is some-
times exercised over disputes between a native prince
and one of his own subjects. The great amount of
imperial jurisdiction within the native states neces-
sitates the appointment by the governor-general in
council of justices of the peace to act within them,
and thus a means is supplied by which even the British
Indian legislation for its proper subjects is enforced
within those states, although nothing corresponding to
such enforcement would be possible in the mutual
relations of two self-governing colonies. It speaks for
itself that, since the machinery for the enforcement is
furnished by an act of state, independent of the judicial
system of British India, there can be no appeal to the
courts of that system when the law offended against is
British Indian, any more than when the imperial act of
state introduces the law as well as the jurisdiction.

It would be quite beyond the scope of the present
work to pursue in further detail the rules and practices
which make up what may be called the constitutional
modus vivendt between native Indian states on the one
hand, and on the other hand the central unity and the
remaining portions of the British empire. What has
been said with regard to legislation and jurisdiction,
though far from being exhaustive even on those topics,
will serve to illustrate the distinctions relating to them
which, as we have seen, are made in our public

1 This difference of terms does not correspond to any difference in the
modes by which the imperial jurisdiction was established, for both dele-
gated and residuary jurisdictions, so called, may be found which were
established by agreement with the native states, and both may be found
which were established by usage. “Substituted” jurisdiction is still
another term employed, and expresses the temporary administration of
justice in a native state by imperial officers on account of the minority or
misgovernment of the prince.
x, INDIA IN RELATION TO CONSTITUTIONAL LAW. 227

 

language the test of a native state as opposed to a
British province in India. But it may be said generally
of the modus vivend? that its growth has been gradual,
like that of the Indian empire itself; that its particulars
have in the same manner been imperceptibly shifted
from an international to an imperial basis; and that
the process has been veiled by the prudence of states-
men, the conservatism of lawyers, and the prevalence
of certain theories about sovereignty. Veiled, but
neither prevented nor retarded. The courses followed
have not been devious, though the attempts to explain
them have sometimes perhaps been needlessly intricate,
and their now fairly complete result is consistent enough
in the light of their true idea.

Has that idea been a righteous one? The point
which raises the most doubt about it is the position
which treaties and grants have been made to assume.
Speaking of the subsidiary alliances concluded by
Lord Wellesley and the terms of isolated and sub-
ordinate cooperation which were imposed by Lord
Hastings, the highly authorised expounder to whom I
have so often referred says with truth that “when they
were fresh minted they represented different policies
and different periods,” but that ‘‘the action of time
and of customary law has worn them down to a common
value.” He adds that ‘the same contrast is to be
observed in the title-deeds creating new sovereignties
which were issued in the two periods of treaty-making.”
And he has added in effect elsewhere that the common
value to which the treaties and title-deeds of both
periods have been worn down is below the face value
of either’. It is no justification to construe a stipula-

1 Lee-Warner, Zhe Protected Princes of India, p. 119; and above,
p- 207.
I5—2
228 INTERNATIONAL LAW. [ CHAP.

 

tion, that “the jurisdiction of the British government
shall not in any manner be introduced into the prin-
cipality,” as referring only to “the ordinary judicial
system of British India created by the legislative
authority of British India,” a construction which cer-
tainly could not at the time have been in the mind at
least of one of the parties. Nor is it a justification
to appeal to ‘‘the effect of parliamentary legisla-
tion,” the foundation for which is in question. We
touch more solid ground when we read that by the
treaty referred to Bhopal had undertaken, in Lord
Hastings’s terms, to “act in subordinate cooperation
with the British government’.” Even in 1818 the
ruler of Bhopal might have known that the task in
which England demanded cooperation was to maintain
the peace of India, within and as against attacks from
without ; for that purpose, to prevent gross misgovern-
ment; to enforce toleration between Hindoo, Maho-
metan and Christian; to put down infanticide, suttee
and other inhuman practices; and generally to raise
the standard of enlightenment and civilisation. If the
cooperation by which that task was to be pursued was
to be a subordinate one, much was thereby left to the
determination of England, in enlargement of views
and choice of means. But could it be understood
that the latitude allowed her reached to restricting her
obligations under other clauses of the same document,
or extending her empire over what was still a distinct
state? It is possible that Lord Hastings foresaw that
result, it is scarcely possible that he intended the treaty
as furnishing a legal basis for it, and it is impossible

' See the reply given to the Maharanee of Bhopal, as stated by Mr
Lee- Warner, u.s., pp. 331, 332.
| INDIA IN RELATION TO CONSTITUTIONAL LAW. 229

 

that a native prince should at the time have so con-
sidered the treaty.

On the other side we may ask whether the treaties
and grants—for the latter were in the nature of treaties
so long as they were deemed to create states not
subject to the empire—would have been likely to fare
better if the complications, in which their strict inter-
pretation would have resulted between European and
Asiatic governments in juxtaposition, had been left to
be worked out on an international basis. No part of
international law has been more discussed or with less
result than the limits to the obligation of treaties. No
human arrangements can escape from decay. In all
states the legislative power sets aside the obligation of
contracts, either in regular course as by bankrupt laws,
or by occasional interference when public interests call
for it. Since between nations no superior authority
exists to perform that function, the very conclusion of
a treaty has been considered to be subject to the tacit
reservation vedus szc stantibus, the true extent of which
has hitherto defied definition. And the doctrine is
taught by international lawyers no less than practised
by statesmen, that although war can justifiably be
commenced only for legal reasons, it may be continued
in order to place the relations of the belligerents on an
improved footing, which may diminish the danger of
its recurrence. In no part of history has the inherent
want of permanence in human arrangements been more
strikingly illustrated than in that which relates the
contact between European and Asiatic peoples. The
methods of dealing with that contact which were tried
by England, down to the imposition on the native
states of the system of isolation and subordinate co-
operation, were successively defeated by outbreaks of
230 INTERNATIONAL LAW. [cHAP.

 

disorder. That system did not put an end to such
outbreaks, nor did experience warrant the expectation
that any remedy could be complete that was not
thorough in its scope and uniform in its application
to the whole body of states dealt with. This must be
the justification of England for securing thoroughness
and uniformity by the establishment of an imperial
principle, and it may be supported by experience other
than her own. Russia, having the same necessities
and the same aims, the peace of a continent and the
elevation of its inhabitants, has been similarly led to
bring all northern Asia within her empire.

In truth, the treaties and grants themselves are
safer under a constitutional system than under an inter-
national one. They are no longer subject to the
chance of war, from which, when it happens, the shape
in which the relations of the parties may issue can
scarcely be forecast. They are no longer mined by
jealousy of foreigners. They are placed under the
guardianship of the fellow feeling which already exists,
and may be expected to increase, between all who
acknowledge the supremacy of the queen-empress, and
of the good faith and dislike to unnecessary innovation
which in the long run mark all great nations, because
without them they could not have been great. The
sense in which England understands the task which
has been set to her in India is at least as fixed as that
in which she understands the duty of the state in her
own islands, a practice now of many years’ standing has
settled with much certainty the restrictions which that
task places on written terms, and subject to those
restrictions the treaties and grants are sacred. If such
a situation leaves much to precedent and constitutional
tact, the princes and people of the native Indian states
x. | INDIA IN RELATION TO CONSTITUTIONAL LAW. 231

 

may reflect that England relies on precedent and con-
stitutional tact for her own liberty and good govern-
ment. The question whether we might not with
advantage make more use of written political rules has
already been pointed out by leading statesmen as
worthy of consideration, but thus far the just rights of
all component parts of the queen’s dominions, down to
those of individual men, have been fairly well main-
tained, and it need not be feared that those of states
once independent and still honoured, now that the
empire has come to include them, will be less secure.
CHAPTER XI.
WAR.

The Rules of War considered as Laws.

Att such rules or principles of action as exist among
nations with regard to the conduct of war fall into two
great divisions, that which relates to the action of the
belligerents against one another and that which relates
to the action of a belligerent with regard to neutrals.
The latter of these divisions surpasses every other part
of international law in the clearness with which it
presents all civilised states to us as members of a
society. In no other branch have the rules composing
it been hammered into their present shape by so
general or active a cooperation of the members of the
society. Most of the international disputes which do
not end in war are settled by the states between which
they arise without the intervention of third parties, and
though seldom without some expression of opinion by
the thinking part of the world, yet often without an
indication of any opinion by any government not
directly concerned. But let war break out between
two powers, and the whole non-belligerent world is at
once related to that war as neutral, its political and
commercial interests are affected by the views enter-
CHAP. XI] THE RULES OF WAR AS LAWS. D3

 

tained about the mutual rights and duties of neutrals
and belligerents, incidents occur which oblige even the
remotest state to act on some view about those rights
and duties, and a general vigilance is aroused not only
as to the observance but even as to the shaping of the
rules on the subject. For us therefore, who take for
our very idea of jural law that it is the body of rules of
a society, it follows that among all generalisations that
are possible on international matters the rules of neu-
trality are preeminently law.

But as to the mutual rights and duties of belli-
gerents the case is very different. When third powers
intervene in a war, or make their pressure felt in
settling the terms of peace, they do so for political
reasons concerned with the result to be attained, and
not with any violation of rules of which one belligerent
may have been guilty towards the other. Hence, for
the rules of this class, settlement and enforcement by
a society exist in a lesser degree than for any other
part of international law. In treating the laws of war
between belligerents as being law at all, we have little
else on which to ground ourselves than that the general
opinion of the international society assists in shaping
the rules, and allows each party to enforce their ob-
servance towards himself if he is able to do so. But
again we are met by the fact that here, of all parts of
international law, the opportunities for giving a definite
expression to opinion, and for a party’s doing himself
that right which opinion demands, are at the lowest.
A belligerent may complain that his enemy has violated
the laws of war, he may use measures of retorsion,
but the discussion which so arises is seldom brought to
any clear decision. The victory of one party, or such
balance of power as may be reached between the
234 INTERNATIONAL LAW. [ CHAP,

 

parties, brings to a single comprehensive close the war
and every thing connected with it, the disputes which
led to the war, the ulterior aims which have been de-
veloped in its course, and the recriminations to which
its incidents have given rise. In drawing up the treaty
of peace what is thought of is the new departure in the
relations of the parties, and that departure is deter-
mined by the sword. Resentment at an act which he
deems to have been a violation of the laws of war may
swell the indemnity demanded by the conqueror, but
the amount added on that score cannot be distinguished,
the vanquished pay the indemnity without admitting
the violation, and if they condemn the conduct of the
war by the conqueror, their remonstrances remain
wholly without effect. When in a subsequent war the
temptation arises to repeat an act the lawfulness of
which has been questioned in a previous war, the
records of the latter furnish no pronouncement on its
lawfulness which can be appealed to.

On the other hand, if we are thus thrown back on
general opinion, it is fortunate that there is no part of
international law which so deeply interests the majority
of men, or on which therefore public discussion con-
tributes so actively to form the general opinion of the
international society, as the laws of war between belli-
gerents. They are connected with the most striking
incidents that vary the generally even current of
civilised life. Those incidents excite our sympathies
with the most penetrating force. Subject as so large
a part of Europe is to compulsory military service,
there are few men whose training does not enable
them to realise more or less vividly the scenes among
which they take place, and still fewer persons of either
sex to whom the questions about them do not carry a
XI. | THE RULES OF WAR AS LAWS. one

 

personal interest, bearing on what they may themselves
have to do or to suffer, as combatants or as inhabitants
of an invaded country. It may be doubted whether,
latterly, the popular feeling thus stirred has always
operated in the direction of humanity. In proportion
as really national wars have taken the place of wars of
dynastic or personal ambition, there has tended to
grow up, on the conquering side in any struggle, a
public impatience of all laws which might impose re-
straints on the fullest measure of success, which was
not felt by subjects on behalf of the schemes of their
rulers. But governments have in recent times done
much to guide opinion in this matter. They have
abstained from modes of damaging their enemies which
might have been of military value, they have framed
regulations for their commanders and have blamed
them for excesses, they have concluded the Geneva and
St Petersburg conventions, and in the conference at
Brussels they have taken an important step towards the
preparation of an international military code. Thus, in
one way or another, laws of war between belligerents
are maintained and ameliorated. In the sixteenth
century almost everything was permitted against an
enemy, and hardly any attempt was made to distinguish
the degrees in which combatants and non-combatants
partake of the hostile character. Since then, limitation
after limitation has been imposed on the right of armed
strength, and the improvement will be seen if we con-
trast the modes of conducting war at successive inter-
vals of a century. On many points the opinion of the
civilised world has become fixed, and warrants belli-
gerents in using the means available to them for
securing a practice in conformity with it.
236 INTERNATIONAL LAW. [ CHAP.

 

Principles relating to Particular Military Operations.

With regard to modes of fighting and to conduct
immediately connected with fighting—in a word, with
regard to military operations—it is agreed that every
thing is prohibited which is not of a nature to con-
tribute to success in the operation concerned. Such is
the use of projectiles which make death certain and
painful, without increasing the number of men disabled
by a shot; as glass, or explosive bullets of less weight
than 400 grammes, in the last of which cases the con-
vention of St Petersburg has added express prohibition
to the general opinion condemning such bullets. Other
examples are killing men already disabled and the
sack of places taken by storm. A great progress may
here be noted, for cities taken by storm have been
sacked within the nineteenth century, probably not
with the consent of the victorious commander in any
case so recent, but because it was impossible to hold a
soldiery in hand which had not yet learnt to relinquish
the traditional reward of the labours of a siege.

Some things are prohibited as too inhuman by a
universal agreement which cannot be entirely referred
to the foregoing principle, because in certain circum-
stances they might possibly contribute to success in a
military operation, and yet the prohibition admits of
no exception. Such are the employment of poison,
which was held to be unlawful even in the ancient
world, and killing prisoners or refusing quarter when
the fight is over, although the victorious army may be
seriously hampered by the necessity of guarding a large
number of able men.

It is further agreed that even where a thing does
not fall under any absolute prohibition, it may only be
XI | PARTICULAR MILITARY OPERATIONS. 237

 

done in the circumstances and in the measure in which
it may reasonably be expected to contribute to the
success of the operation concerned. Examples are
devastating a tract of country in order to prevent the
enemy’s occupying it or crossing it, and bombarding
the parts of fortified cities which are inhabited by the
civil population. It is in this connection that the em-
ployment of red-hot shot ought to be mentioned,
though some theoretical writers set it down as abso-
lutely prohibited. Red-hot shot saved Gibraltar by
setting the Spanish floating batteries on fire, and it is
impossible to say that it can never again be of real
use. The military commander is the judge of the
circumstances and the measure for things which are
conditionally permitted, at the risk of being accused of
inhumanity if general opinion is not satisfied with his
decision.

But suppose it to be clear that the employment of
a certain means is likely to contribute to the success of
a military operation. Can we go further, and say that
there must be a reasonable proportion between the
destruction or suffering to be caused and the military
advantage to be expected? This is a question which
hitherto it has scarcely been necessary to ask, but
which the fearful destructiveness of the most modern
weapons may force on the attention. A ram or a
torpedo may by one blow sink a ship with hundreds of
men on board, perhaps thousands if she is a transport,
and although this may have been done in a fair fight,
and there must always be some military advantage in
reducing the number of the enemy, still the circum-
stances may be such that she might have been cap-
tured instead of sunk with no great delay or damage to
the operation in hand, or that even her escape would
238 INTERNATIONAL LAW. [cHap.

 

not have been likely to lead to any serious conse-
quences. It can hardly be maintained that such a
wholesale slaughter for no adequate purpose would be
justifiable. We may hope that a public opinion will
be formed which, while by no means interdicting the
newest methods of warfare, will recognise that a duty
of self-restraint is imposed on combatants in their use.

Principles relating to the Conduct of War generally:
Kriegsmanier and Kriegsratson.

We pass now to measures not belonging to any
particular military operation, but which may have an
effect on the war generally. Such are the bombard-
ment of unfortified places, and the devastation of tracts
of country with no special strategical purpose, the
motive of either being to weaken the enemy through
the loss occasioned to him, or to bring him to terms
through the fear of further acts of the same kind. In
order to discuss the questions thus raised it is necessary
to notice a distinction often made between the ordinary
rules of war (£rzegsmanier, les lots de la guerre) and
what is exceptionally permitted (Azegsrazson or kriegs-
riison, ratson de guerre), both being included in the law
of war (kriegsrecht, le droit de la guerre)’. Since the
distinction has not made its way into English thought,
I will give it, for information and by way of caution
against certain tendencies, as it has been fully worked
out by Professor Lueder.

“ Kriegsraison embraces those cases in which, by way of exception,
the laws of war ought to be left without observance. This can only

1 Rivier, in his Lehrbuch des Volkerrechts, uses kriegsrecht in the sense
of kriegsmanter, but does not exclude the exceptional law. He says
“kriegsrason geht vor kriegsrecht”: p. 376.
1, | CONDUCT OF WAR GENERALLY. 239

 

happen in two cases, one that of extreme necessity, when the object of the
war can only be attained by their non-observance and would be defeated
by their observance, the other that of retorsion, as a retaliation for an
unjustifiable non-observance of the laws of war by the other side......

“The right not to observe the laws of war exists in the case of retor-
sion because, according to known maxims, non-fulfilment by one party
deprives that party of the right to claim fulfilment by the other. At least
this may be the case in war, where, if the violations of the laws of war by
the enemy were passed without retaliation, a belligerent would be at a
disadvantage and worse off than his enemy who was guilty of the viola-
tions, with reference to the end which has to be striven for by all means,
namely breaking down the determination of the other side and gaining
the victory.

“As little can the justifiableness of £riegsraison be denied on occasions
of extreme necessity. If the necessity of individuals is recognised as
exempting them from punishment for things never so injurious done by
them from that necessity, this must be still more the case in war, since so
much more is at stake. When therefore the circumstances are such that
the attainment of the object of the war and the escape from extreme
danger would be hindered by observing the limitations imposed by the
laws of war, and can only be accomplished by breaking through those
limitations, the latter is what ought to happen. It ought to happen
because it must happen, that is, because the course of no war will in such
extreme cases be hindered and allow itself to end in defeat, perhaps in
ruin, in order not to violate formal law. No prohibition can in such a
case effect any thing, or present a claim to recognition and validity; and
it would be idle to formulate one, for from what commander or from what
state could such heroism of meekness and renunciation be expected?

Of course such a conflict can only be of exceptional occurrence, for
the laws of war are so framed by ordinary custom and well weighed
conventions that ordinarily it is possible to follow them. They are built
on those relations of fact which are usually met with, just as are the rules
of public national law (staatsrecht) and private law, and in the one case as
in the other only specially exceptional conditions can make it impossible
to follow them. How should the laws of war, which have been laid down
in order to the protection of helpless civilians, wounded and disabled
soldiers, private property, flags of truce, and the maintenance of conven-
tions which have been concluded for the protection of an occupied
territory against unnecessary oppression, devastation and plundering—
how should such laws be lightly unobservable? That they should be so,
and that a conflict should arise between what the laws of war prescribe
and what the necessity of war demands, is inconceivable except in quite
extraordinary cases of exception and stress. It is therefore entirely out
of the question that 2rzegsrazson should be applied frequently, lightly and
at pleasure, and come to be considered as standing in its practical use on
the same line with the laws of war. Much rather are we dealing only
240 INTERNATIONAL LAW. [CHAP.

 

with something quite exceptionally happening, and for that reason the
admission of £riegsraison certainly appears not to be too questionable.
When however the exception happens, it excludes the rule, as its nature
is to do, and riegsraison takes precedence of the laws of war.

The regular normal validity of the law of war (Aregsrecht) is preserved
by the introduction of Zrdegsraison, possible as it is only exceptionally.
If this admissibleness of 47zegsvaison in extraordinary cases of necessity
and exception, an admissibleness which at any rate has to be fully and
decisively acknowledged, should lead one to think that there was at
bottom no binding law of war, by reason of its not having to be observed
in the critical cases of conflict with the demands of warfare, and that
instead of a law of war there was only a usage of war in the sense con-
demned above (§ 52)—that would be to shoot far beyond the mark, and
to ignore the final and inner cause of every law and legal institution.
Kriegsraison is related to the law of war as necessity to criminal law, and
it might be said with the same right and supported by the same argument
that there was no criminal law, because its rules have not to be observed
in cases of necessity. The misapprehension above referred to would lead
to the one conclusion as well as to the other. Thus by the full recognition
of a kriegsraison exceptionally justified the doctrine which has been set
forth above, that there really exists a law of war and not merely a usage
of war to be observed at pleasure, is not in the least altered; and as little
can there be on that account any question of the right, asserted by
Grotius and Pufendorff but above confuted, to free one’s self from the law
of war by a declaration to that effect. Even the ordinary rules of war
cannot be denounced at pleasure, but only disregarded exceptionally on a
few well-defined grounds. If however kriegsraison were considered as
something outside law (wzvrechtlich) and as a breach of the law of war
(krtegsrechd), even then the non-existence of a law of war could not follow,
though such law would be liable to possible violation. For from this
point of view also the state of things would be the same as in other
departments of law, in all of which violations likewise occur, and indeed
in some cases violations which are unatoned for and cannot be made
good,”

Another extract from the same writer will show the
principles maintained in the last extract in their appli-
cation to such methods of war as those referred to at
the commencement of this section.

“That ravage, burning and devastation, even on a large scale, as of
whole neighbourhoods and tracts of country, may be practised where it is

1 In Holtzendorff’s Handbuch des Volkerrechts, vol. 4, §§ 65 and 66,
PP. 254-256.
XI. | CONDUCT OF WAR GENERALLY. 241

 

not a question of any particular determinate result or strategical opera-
tion, but only of more general measures, as in order to make the further
advance of the enemy impossible, or even to show him what war is in
earnest when he persists in carrying it on without serious hope (/rzvo/)
and so compel him to make peace—this cannot be denied in cases of real
necessity, as of a well-grounded Ariegsrazson. But it is only in such cases
that it cannot be denied, and if measures of that kind are taken other-
wise than under the most extreme compulsion, they are great and inhuman
offences against international law}.”

I am unable to approve of the distinction between
kriegsmanter and kriegsratson. It is not wanted to
justify retorsion, and must therefore be considered
with reference to the ground of necessity alone. Now
those who make the distinction allow the employment
of every means in some circumstances, except so far
as an absolute prohibition has been adopted by express
convention, or rests on an ancient horror felt by man-
kind, as in the case of poison, to which if they were
consistent their argument would equally apply. On
the other hand, even the mildest means employed in
war are based on some necessity, for war itself has no
other rightful foundation. Little or nothing therefore
seems to be gained by making two classes of measures,
distinguished not really by necessity but by so vague
a test as the degree of necessity, while much may be
lost by the opposition in which such a system inevit-
ably stands to any extension of the list of absolute
prohibitions beyond those already existing. The two
sources from which it seems possible to hope for an
amelioration of the practice of war are such an exten-
sion, and a better recognition by public opinion of the
duty of weighing scrupulously the degree of necessity
or the amount of advantage under or for the sake of
which recourse is had even to permitted measures.
The immediate responsibility in the case of particular

1 In Holtzendorff’s Handbuch des Vilkerrechts, vol. 4, § 114, p. 484.
Ww. 16
242 INTERNATIONAL LAW. [ CHAP.

 

military operations, as with regard to the use of rams
and torpedoes, lies chiefly with commanders: in the
case of the wider questions relating to the conduct
of a war it lies chiefly with governments. It is probable
that both will be as humane as the excitement of a
people feeling that a war is its own war will allow
them to be, and it need not be greatly feared that
Professor Lueder’s own government will ever give
effect to his doctrine by ordering the devastation of a
whole region as an act of terrorism. That the ex-
tension of the list of absolute prohibitions need not be
despaired of may be inferred from the labours of the
military delegates assembled in conference at Brussels
on land war in 1874. A draft declaration was adopted
there, unfortunately not yet ratified by the govern-
ments represented, of which Art. 15 runs that ‘towns,
agglomerations of houses, or villages, which are open
and undefended, cannot be attacked or bombarded.”
Similarly Art. 32 (c) of the Manual of the Laws of
Land War, adopted by the Institute of International
Law at Oxford in 1880, lays down that “it is for-
bidden to attack and bombard localities which are not
defended.” The principle must equally prohibit the
bombardment of open and undefended coast towns by
ships, and we may fairly hope that any violation of it,
either in land or in naval war, would meet with general
reprobation. But a French admiral has advocated the
bombardment of undefended coast towns in the British
Isles in the event of a war between England and
France, as a generally permissible means of exhausting
the resources and weakening the spirit of an enemy,
without limitation by such a condition of necessity as
we have seen Professor Lueder imposing on operations
of that class. The gallant officer was probably un-
XI. | CONDUCT OF WAR GENERALLY. 243

 

aware of the support which his advice might receive
up toa certain point by learned theories of vazson de
guerre, and a Frenchman might well hesitate to take
a line of action against England which could not be
justified by any argument that would not expose his
own country and Germany, if at war with one another,
to the risk of mutual devastation not of a military but
of a political character. That the advice should have
been given illustrates the fact that there remain in the
world many relics of a less advanced moral condition,
and the danger of teaching that everything is permitted
to an undefinable necessity of which the party interested
is the sole judge.

But however desirable may be the extension of the
list of absolute prohibitions in war, care must be taken
not to infer that a certain means is prohibited from the
mere fact that it is not employed, when there is no
reason to believe that it has been abstained from in
obedience to a sentiment of right or a persuasion of
law. Abstention is in itself ambiguous. An act may
not have been done because the circumstances promised
no advantage from doing it, or no advantage corre-
sponding in its importance to the odium which attaches
to acting harshly, even when the harshness does not
exceed the limits of what is permitted. And abstention
for that reason may run through a long series of years,
during which the conditions of war have not been such
as to tempt to the act, or during which the states
which were able to do it have not been placed in
circumstances which tempted to it. A change in the
conditions of war then takes place by which the
advantage to be obtained from the act is much in-
creased, or the states which are able to do the act
are brought by a change of circumstances within the

16—2
244 INTERNATIONAL LAW. [cHAP.

 

temptation to do it. If still it is not done, the
abstention can only be attributed to a governing
sentiment, and the existence of the prohibiting rule
may be inferred. But what if the act is now done?
There will of course be protest from the enemy, and
we must see whether that protest is echoed by public
opinion in third countries, and whether opinion, if
adverse, is strong enough to prevent repetitions of the
act when the occasion for it recurs. If it is so, the
existence of a rule is established: if it is not, there
is no rule, only opposing principles, which may lead
to the act being sometimes done, and at other times
abstained from even under strong temptation.

An illustration may be drawn from the question
whether the coast fisheries of a belligerent state enjoy
exemption from interference by the enemy. It has
not been usual to capture the boats or men engaged
in such fisheries, though no exemption has ever been
claimed for deep-sea fisheries. But during the wars
of the French revolution and empire the danger of
invasion under which England lay was deemed to
require that no means should be spared of crippling
the enemy at sea, both in respect of fighting power
and of transport, and accordingly the boats and men
belonging to the French coast fisheries were captured.
Protest followed on the part of France, as might have
been expected, and continental writers generally lay
down that coast fisheries are exempted from inter-
ference by the enemy, and inveigh against the non-
observance of this supposed rule by England. Those
writers are certainly free to advocate such principles
of action as seem to them fit, but in the circumstances
mentioned they cannot assert with truth the existence
of a prohibitory rule.
XI. | TREATMENT OF PEACEABLE POPULATION. 245

 

The Treatment of the Peaceable Population, and of
Private Property on Land and at Sea.

After the operations which a belligerent may under-
take and the weapons which he may use, we come ta
the conduct which he must observe towards persons not
taking part in the fighting. These may be prevented
from assisting the enemy, as by giving him information
or attempting to leave their abodes in order to swell
his ranks. For the purpose of preventing such assist-
ance being rendered, an invader may threaten and
inflict penalties of the severity which may be necessary,
but those penalties must not be connected in our minds
with any notion that a crime is committed by those
who, without acting treacherously, are led by patriotism
to incur them. Subject to due severity being taken
for their not assisting the enemy, the peaceable popula-
tion of an invaded district are entitled to protection for
their life, honour, family rights and religion; also for
their liberty, with the exception of being compelled to
serve as guides and to execute works which the invader
deems necessary for his purposes; they must not
however be compelled to take a more direct part
in operations against their own country. As regards
their property, they are entitled to immunity from
pillage, but they must submit to its appropriation by
an invading force, both in the form of goods, under
the name of requisitions, and in that of money, under
the name of contributions. Requisitions are intended
for supplying specifically the wants of the invaders, as
clothing, boots, provisions and forage. Contributions
are described in Art. 41 of the draft declaration adopted
at the Brussels conference as “ equivalents for taxes, or
for payments which should be made in kind, or fines.”
246 INTERNATIONAL LAW. [ cHaP.

 

And what fines may cover is illustrated by Professor
Lueder’s mentioning, in perfect consistency with recent
practice, persistence in a war without serious hope
(frivol) and “irrecusable requirements of policy,” as
reasons for justly levying contributions’.

The traffic of a belligerent country by road, railway
or canal is practically stopped so far as it comes in
contact with its enemy, by the indirect effect of the
communications being crowded by troops and supplies,
and of the measures taken on each side to prevent
such traffic being of assistance to the other side. To
this however an exception must be made for the
internal traffic of an occupied district, and for that
between an occupied district and other countries, which
continue as well as they can under the difficulties of the
case, and subject to regulation by the invader.

So far all authorities are agreed, except as to the
motives and occasions for levying contributions. And
with regard to them the latitude allowed to an invader
turns perhaps less on national differences than on the
personal idiosyncrasies of the governments or com-
manders concerned, or of the writers who discuss the
question, although the leaning of writers in England
and the United States is towards greater mildness than
seems to prevail on the continent of Europe, as is cer-
tainly the case with the practice of England and the
United States with regard both to requisitions and to
contributions.

But at sea the differences are more important.
Notwithstanding the protests of a large number of
writers and the example set by Austria and Italy in
their war of 1866, the principal maritime powers con-
tinue to prohibit all commerce of their enemies so far

1 In Holtzendorff’s Handbuch des Volkerrechts, vol. 4,§ 117, p. 505.
XI. | PRIVATE PROPERTY AT SEA. 247

 

as it is not placed out of their reach by being carried
on in neutral bottoms, to appropriate the enemy’s
ships and their cargoes so far as they are the enemy’s
property, and to detain the seamen as prisoners. If
this practice be regarded as based on a desire to weaken
the enemy by impairing his resources, it is an example
of a hostile measure taken with a view to success in
the war as a whole, and not to success in any particular
military operation. Individuals suffer, but so do the
individuals from whom contributions are levied—what
is a locality but a number of individuals ?—and it does
not seem that the practice can be consistently objected
to in principle by any government which has levied
contributions as ‘“‘an irrecusable requirement of policy,”
or by any writer who has approved of contributions so
levied. If again the captures by the maritime powers
be regarded as intended to deprive the enemy of sea-
men who might serve in his military navy or in his
transports, they are on the same lines as the measures
which an invader employs to prevent his enemy’s forces
being augmented by any recruits whom he can reach.
Of course the question remains whether the practice of
capturing the enemy’s merchant-ships is worth retain-
ing in any case but those of breach of blockade and
carriage of contraband of war, in which cases a belli-
gerent could not expect to fare better than a neutral.
Every mitigation of war of which it can be proved that
it would not be dangerous to our national safety ought
to be promoted, but not by means of unsound com-
parisons between war as carried on by land and by
sea.

With reference to the course which England ought
to take about the capture of an enemy’s merchant
shipping, otherwise than for breach of blockade or
248 INTERNATIONAL LAW. [ CHAP.

 

carrying contraband, the following considerations may
be submitted.

First, if policy requires England to maintain the
capture, there is nothing in law to oppose her doing so.
As long as the principal maritime powers uphold the
claim, no rule of the international society of Europe
and America can exist against it. Nor is the argu-
ment against the claim more advanced if le drozt tnter-
national, das vilkerrecht, be understood, not as inter-
national /aw, but as a body of rights believed to exist
internationally a przorz*. The surrender of the claim
would place belligerent property at sea in a better
position than it holds on land, whether we look at war
as it is practised or at the doctrines of continental
writers on requisitions and contributions. And the
claim is not inconsistent with the relation which exists
for international purposes between individuals and the
states to which they belong, unless the theory of that
relation be taken from the Contrat Social of Rousseau,
in despite of the saner statements of other thinkers and
of the facts of international life. But this theory cannot
be discussed till some further points which bear on it
have been mentioned’,

Secondly, merchant vessels can be used as trans-
ports, and the sailors who navigate them can navigate
regular transports, even if they are not fit for service
in the more active part of the military navy; and in
certain countries all sailors have received some training
for the military navy, and are held liable to serve in it.
Circumstances may therefore well arise in which not

1 See what has been said of the special authority of the states most
concerned with a particular branch of international law, above, p. 83,
no. 16.

2 See above, pp. 112—114. 3 See below, p. 259.
3i.] PRIVATE PROPERTY AT SEA. 249

 

merely the maintenance of England’s supremacy at
sea, which is so necessary for the support of her popu-
lation, but even her safety from invasion, may require
that an enemy’s ships and sailors, of whatever descrip-
tions respectively, should be captured and detained.
It is not to be supposed that the advocates of £rzegs-
raison would deny to England, under imminent danger
of invasion, the right of capturing and detaining the
enemy’s sailors and his ships which might be used as
transports: the ships and cargoes, they would probably
say, ought to be released, with the men, on the conclu-
sion of peace. The question for us is whether it is
better to hold our right on its present footing, or to
receive back a part of it, to be used only in our extreme
need, and on the terms of accepting, along with the
part, a theory hitherto strange to us, which practically
reduces to narrow limits the protection given by any
laws of war. I venture to think that it is better to
hold our right on its present footing, even without
reference to the pecuniary value of the ships and
cargoes: for one reason, because when the danger of
invasion was imminent it would be too late to parry it
by capturing ships and men already collected in har-
bours ready for use; and for another, because humanity
will be safer if war is governed by laws which are
meant to be kept so far as prohibitive, and to be used
with due self-restraint so far as permissive, than if laws
of fairer seeming are laid down for it together with a
licence to disregard them on the plea of necessity.
Thirdly, we have to consider whether the present
right of capture agrees with the true policy of England
in other respects than that of national defence. Let us
imagine that she is opposed to a power or to a com-
bination of powers at all considerable at sea, and try to
250 INTERNATIONAL LAW. [cHar.

 

form an idea of what would then happen. Many
persons appear to suppose that there would imme-
diately be a wholesale transfer of British mercantile
shipping to neutral flags, and that under the cover of
these the supply of England with food and the raw
materials of our manufactures would proceed much as
before, only we should have lost our carrying trade.
That view certainly errs by not taking sufficient ac-
count of the immense aggregate of the prices which
would have to be paid for wholesale dona fide transfers
of British ships, an aggregate far exceeding what neutral
buyers could supply on short notice—of the fact that
transfers which were not dona fide would not be valid
as against a belligerent—and of the necessary conse-
quence from those two premises, namely that an enemy
would bring in the transferred ships wholesale, for
inquiry by his prize courts into the circumstances of
the transfers. A great rush to transfer would be fol-
lowed by the discovery that war rates of insurance were
heavy even under the neutral flag. And since it must
be easier to convoy fleets of merchantmen kept together
by the general use of steam power than it used to be to
convoy fleets scattered by unequal rates of sailing, it is
probable that after a little experience the British flag
would still be flying over the greater part of our ship-
ping, even were there nothing else in the case than
what has yet been mentioned. It is however very
possible that if England were at war with a considerable
sea power, the interference with her commerce under-
taken by the latter would to a large extent take place
under cover of the law of blockade. It is not indeed
likely that a blockade of any port in the British Isles
could be made really effective, except for a short time
by a rare combination of circumstances. But the power
1. | PRIVATE PROPERTY AT SEA. 251

 

of a steam navy to maintain a blockade is much greater
than used to be that of sailing ships in the old wars
between England and France—both the common law
of nations and the declaration of Paris are very vague in
what they require for the effectiveness of a blockade—
one of the most recent blockades in history was also
one of the most ineffective, that of the Confederate coast
during the first year of the American civil war (for
afterwards it became really effective), and yet all neutral
states respected it—the respect which they paid to it
was highly commendable, considering what were the
issues at stake in that war, but all the same it goes to
show how much more the behaviour of neutrals towards
an ineffective blockade depends on political than on
legal considerations—and to declare a blockade of
British ports, if neutrals could in any way be induced
to respect it, would have the advantage of attacking
our supplies under the neutral flag as well as under our
own. I have little doubt therefore that the attempt
would be made, and that the behaviour of neutrals
towards it would depend mainly on their political sym-
pathies ; or at least that, if it was not made, it would
be because the superiority of England at sea was so
overwhelming that our commerce had little to fear in
any state of the law. But such an employment—abuse,
if you like—of blockade would seriously weaken the
motive for transferring ships to the neutral flag; and
this is, to me, an additional reason for hesitating to
believe in the ruin which we are told that our next
great war will bring to British commerce if the existing
law is maintained.

On the other hand, I do not believe at all in the
capture of traders at sea as a means of breaking either
the resources or the spirit of a great land power. It
252 INTERNATIONAL LAW. [cHAP.

 

was not such capture, even when reinforced by blockades
admirably maintained, that brought the Napoleonic and
Confederate wars to an end, but the advance of the
allies to Paris and Toulouse, and that of the United
States’ armies to Richmond and Savannah. And the
multiplication of railways makes continental states less
than ever dependent on the sea for supplies. I submit
then that we need neither be driven by the stress of
apprehension to one solution of the question before us,
nor be led by the prospect of advantage to the opposite
solution. We are free to consider calmly the painful
losses caused to individuals by belligerent captures—
losses which it is not possible wholly to provide against
by insurance, because they may ruin a trade that will
not bear the insurance, and which ought not to be in-
flicted without adequate justification. We may also
consider that capture on no other legal ground but that
of enemy's property is in fact, whether consistently or
not, condemned as unjust throughout a large part of
Europe and America; and that England incurs on its
account an unpopularity which the continental nations
do not seem to incur with one another by any severity
in the exaction of requisitions and contributions—
perhaps because they have all acted alike in that
respect, or may hope to do so, while they cannot hope
to rival England in the power of capturing at sea.
And the true conclusion appears to be that a real
cause, when such may exist, for desiring the detention
of the enemy’s sailors and ships in order to prevent
invasion or the loss of our naval supremacy, is the only
adequate motive for maintaining the present practice ;
and that at the commencement of a war England
should offer to her enemy to enter with him into a
convention, determinable by either side on short notice,
XI. | PRIVATE PROPERTY AT SEA. 253

 

for mutual abstention from maritime capture except
under the heads of blockade and contraband.

Retorsion.

Retorsion in war is the action of a belligerent
against whom a law has been broken, and who retorts
by breaking the same or some other law, in order to
compensate himself for the damage which he has
suffered and to deter his enemy from continuing or
repeating the offence. Where the same law is broken
the proper term is retaliation, but there is no difference
of principle between the cases, and the term retorsion
covers both. The principle is justified by the analogy
of national law. We have seen Professor Lueder
saying: “according to known maxims, non-fulfilment
by one party deprives that party of the right to claim
fulfilment by the other.” In England a party to a
contract cannot enforce its performance by the other
party if he has himself failed in some performance
which, either by the express terms of the contract or
by what can be collected to have been the intention,
was made a condition precedent to performance by the
other party. A similar result is reached by Art. 1184
of the Code Napoléon, which runs that “in bilateral
contracts a condition is always understood by which
the contract is dissolved if one of the parties does not
fulfil his engagement.... The dissolution must be
sued for, and time can be given the defendant accord-
ing to circumstances.” The practice is that in an
action under that article the court appreciates the
circumstances, and only grants the dissolution in cases
in which an English court would arrive at the con-

1 See above, p. 239.
254 INTERNATIONAL LAW. [ CHAP.

 

clusion that the defendant’s performance was intended
to be a condition precedent to the plaintiff’s. Thus
a principle of relativeness is acknowledged by national
-law even in contracts in which it is not expressed,
and although the mutual duties of enemies cannot be
considered as arising from contract, yet the student
of ethics will admit that there is scarcely any duty
which is not more or less relative. Whether then we
regard the laws of war between belligerents as merely
moral laws or as the laws of an international society,
we must admit for them in either character a relative-
ness within proper limits. A state having a claim
which it believes itself to be justified in prosecuting by
force of arms—which is the case of every belligerent—
cannot reasonably be expected to observe every rule
of the game, at the risk of its own defeat or of leaving
its soldiers and subjects exposed to avoidable suffering,
when its antagonist has added to his original wrong
by breaking the rules of the game. Nor can it be
supposed that any society has adopted a law to that
effect.

But the immediate sufferers from retorsion are
hardly ever the persons who were guilty of the offence
which called for it. This will be illustrated by an ex-
ample which is worth citing, since it illustrates much
else besides. During the war of 1870-1 the French
detained as prisoners the crews of the German mer-
chantmen which they captured, but the German
government, in a note addressed to that of France,
besides alleging illtreatment of the prisoners, objected
in principle to their detention and threatened to resort
to retorsion if they were not liberated. It was urged
in the note that the only object of detaining seamen
of the mercantile marine was to diminish the number
x1. | RETORSION. a5

 

of sailors from whom privateers could be manned, and
that therefore, since France was a party to the decla-
ration of Paris by which privateering was abolished,
it must be supposed that she had sanctioned the
enjoyment thenceforth by such seamen of an immunity
from detention. The Count de Chaudordy, who was
minister of foreign affairs in the “government of
national defence,” rebutted the inference drawn from
the declaration of Paris by pointing out the services
which merchant seamen are still capable of rendering
in war at a moment’s notice, and that the reasons
for their detention were of double force as against
Germany, in which all seafaring men are subject to
conscription for the navy of the state. The German
government, in execution of its threat, sent forty
notables from Dijon, Gray and Vesoul as prisoners
to Bremen. The war closed without either of the
conflicting claims being withdrawn, and the seamen
and the notables were released in consequence of the
peace. Subsequent German writers, as Geffcken and
Lueder’, uphold the rule propounded by their govern-
ment, that mercantile seamen cannot be detained as
prisoners, while the writers of other nationalities
generally maintain the old rule that they can be so
detained.

This incident strikingly exemplifies the want of
definition which, as already remarked, the laws of war
between belligerents suffer in consequence of the
usual absence of any clear pronouncement on alleged
breaches of them. With regard to the reasoning
employed by the German government, since the

1 Geffcken, note 8 to § 126 of Heffter’s Europaische Volkerrecht der
Gegenwart, 8th edition, p. 279: Lueder, in Holtzendorff’s Handbuch des
Volkerrechts, vol. 4, § 113, note 6, p. 479-
256 INTERNATIONAL LAW. [ CHAP.

 

detention of merchant seamen was admitted to be
lawful before the declaration of Paris', those who think
of laws as the rules of a society cannot hold that it
became unlawful by a mere inference from that decla-
ration unless the international society was in some
way committed to the legitimacy of the inference.
It might have been so committed by the general
opinion of writers, expressing that of European and
American men, only in the case before us the inference
was supported by no such general opinion, and was
not likely to be so*% And if it were common for
governments to act on inferences or opinions not
heard of until propounded for use on the occasion,
and then disputed, it would be absurd to speak of any
laws of war at all as between belligerents. What
Selden said of the English system of equity while
it was in process of development, that it was as if
you were to take the measure of length from the
chancellor's foot, might be applied to any assertion
that could be made about the lawful conduct of war.
And lastly we remark the lesson for which the incident
was cited, that the notables of Dijon, Gray and Vesoul
suffered by retorsion for an offence which, if it was one,
was not theirs. On that score however no reasonable
objection can be made, and we must see why.

That it should be deemed just for an individual to
suffer by retorsion for the offence of his government
implies that for the purposes of war he is held to be
identified with his state. Retorsion may even imply
a double process of identifying an individual with his
state, for it may be employed or threatened in reply

1 This is not admitted by those who adopt Rousseau’s theory of the
relation of individuals to war, as to which see below, p. 259.
2 See above, p. 84, no. 17.
x1. ] RETORSION. 257

 

to something which has not been done by the enemy’s
government, and which that government may have
been unable to prevent. In that case the responsibility
is first carried up to the state by the identification with
it of the individual who has done the wrong, and then
the suffering for the wrong is brought down to another
individual by identifying him in turn with his state.
In no other way can the relative character of the laws
of war be made to support the practice of retorsion.
No analogy that can be drawn either from ethics or
from national law will warrant any one’s being delibe--
rately made to suffer for the fault of another from
whom he is regarded as distinct. There can be only
one reason why the notables of Dijon, Gray and Vesoul
could justly lose their claim to the fulfilment by an
invader of his duties towards the peaceable population,
because France had failed to release German prisoners,
supposing that she was bound to release them. It is
that all claims of Germany against France were claims
against the notables of Dijon, Gray and Vesoul among
other French citizens, not indeed to be pressed against
those individuals without adequate occasion, but giving
a relative character to their claim to a certain treatment
by the invader, and therefore superseding the latter
claim on adequate occasion arising.

The same result will follow if retorsion be placed
on the ground of necessity. We have seen that Pro-
fessor Lueder, justifying &rzegsrazson on that ground,
says that ‘the necessity of individuals is recognised
as exempting them from punishment for things never
so injurious done by them from that necessity’.” That
statement goes too far, both for ethics and at least for
English law. It is true that homicide is excused by

1 Above, p. 239.
w. 17
2 58 INTERNATIONAL LAW. [ CHAP.

 

the necessity of defending yourself against an attack
by the person killed, but it is not justifiable to kill
some one who has not attacked you, in order to throw
on him, rather than bear yourself, the consequences
of a fatality in which neither was at fault’. If there-
fore the analogy be truly weighed, it will appear that
the admission of necessity as a ground for retorsion
presupposes that those on whom the burden is made
to fall are regarded by international law as sharing the
faults of their state. And the same is true of all the
-burdens which the laws of war allow to fall on indi-
viduals. Neither requisitions nor the exaction of the
most moderate contributions can be explained unless
the subjects of the enemy state be in some way iden-
tified with their state.

The General Theory of the Relation of Subjects
to a War.

The way has now been cleared for considering
from a general point of view the relation of subjects
to a war carried on by their state. Are they parties
to the war? are they simply strangers to it? or in
what intermediate relation to it are they placed? In
the middle ages the answer did not seem doubtful :
the subjects were parties to the war, and not only were
they enemies of. the state with which it was waged,
but the subjects of the two states were enemies one of
another as individuals. If the state was a feudal one,
the tie of personal allegiance had for its consequence
that all the quarrels of its lord were also the quarrels
of his men: those who had defied the lord or whom
he had defied—put out of faith—were thereby out of

1 See above, p. III.
XI. | RELATION OF SUBJECTS TO A WAR. 259

 

faith with the homage. If it was an Italian or other
republic, the citizens felt that they were themselves
the state; it had not occurred to them that from the
personality and relations of the latter their own person-
ality and relations were to be distinguished. This
view of war led to great savagery. The life and
property of every individual member of each belligerent
state was legally exposed to be taken or pillaged by
every individual member of the other belligerent state,
and on a declaration of war it was usual to incite all
subjects by proclamation to attack and spoil the
enemy by every means in their power (courtr sus aux
ennemts).

In the middle of the eighteenth century, when a
great improvement had already been made in the
practice of war, an attempt was made to place its
theory at the opposite extreme by a sudden transition.
Rousseau wrote, in his famous Contyrat Social:

“War is not a relation of man to man but of state to state, in which
individuals are enemies only accidentally, not as men nor even as citizens
but as soldiers, not as members of their country but as its defenders.
Lastly, a state can only have other states for enemies and not men,
seeing that no true relation can be established between things of different
natures}.

The levity of mind displayed by such a passage is
extraordinary, even for a man of Rousseau’s character.
If no true relation can be established between states
and men, it must be impossible for men not only to be
the enemies, but also to be the citizens or members of
a state, which in the same passage they are described
as being. And if it is only as soldiers that men are
enemies even accidentally, every measure employed in
war with reference to the civil population, including
the most moderate requisitions, contributions and inter-

1 Contrat Social, bk. 1, ch. 4.
17—2
260 INTERNATIONAL LAW. [cHAP.

 

ferences with their liberty, must be unlawful. That
legal situation would make war almost impossible, a
result which Rousseau would probably not have re-
gretted, but if he had intended it he would have
mentioned it: he had thought so little about what he
was writing that he did not see it. As little had he
reflected that the power of creating corporations with
limited liability may well be granted to individuals by
states, which can impose the conditions and exercise
the control necessary to prevent injustice, but that
ethical principle must condemn the claim that men,
acting in groups not subject to regulation by a
superior, can repudiate their personal responsibility,
and leave outsiders to seek their only satisfaction from
the means with which they have chosen to clothe the
group.

In 1801 M. Portalis, in his discourse on the open-
ing of the French prize court, made the more moderate
pronouncement that “ war is a relation of state to state
and not of individual to individual.” It will be ob-
served that this expressly negatives only the doctrine
that the subjects of two belligerent states are enemies
one of another as individuals. It leaves open the
question whether the subjects of each state are not
responsible to the other, and therefore in war its
enemies; in other words, whether the theory of war
does not require that for its purposes the subjects of a
state shall be identified with it, as I have put it in
speaking of the principles of retorsion and necessity.
Consequently the pronouncement of M. Portalis, while
justly incompatible with pillage, is not incompatible
with any of the practices that in the nineteenth century
are still usual. But the arbitrary assertions of Rousseau
continued to exercise the fascination which extreme
x1. ] RELATION OF SUBJECTS TO A WAR. 261

 

doctrines seem to possess, especially when an end is
to be served by them; and Napoleon prefaced as
follows a decree of 18th November, 1804: ‘‘con-
sidering that England does not admit the law of
nations universally followed by all civilised peoples,
that she reputes as an enemy every individual be-
longing to the enemy state, and consequently makes
the crews of merchant ships prisoners of war.” Thus
the emperor bettered the philosopher by asserting for
their views a universal agreement, both in theory and
in practice, with the single exception which to so many
minds seems to carry a comforting assurance of their
own superiority. We have seen however that when
Bismarck reproached the French for doing the same
thing which Napoleon considered to take the English
out of the list of civilised peoples (peuples policés), he
used neither the authority nor the same argument, but
practically repudiated both by basing his claim on the
later declaration of Paris’.

The general view which Professor Lueder takes of
the relation of subjects to a war is in accordance with
that which has here been intimated. He quotes Por-
talis with approval, and says that “in war only states
and not private persons are opposed to one another as
enemies,” a maxim which is equivalent to that of
Portalis and leaves the same point open®*. And that
he perceived and intended the lacuna in the maxim,
whether Portalis did so or not, may be seen from
another passage in which he fills it as follows.

“The commencement of war and the entry of the law of war on the
scene introduce for the subjects of the belligerent states the condition

1 Above, p. 254.
2 In Holtzendorff’s Handbuch des Volkerrechts, vol. 4, § 69, p. 265,
with note 5 on p. 267.
262 INTERNATIONAL LAW. [ CHAP.

 

of war (£rzegstand), that is,-the special relation which in consequence
of the outbreak of war arises between them and the opposite party. All
the subjects of the states which are at war are under that condition,
though not in the same degree, notwithstanding that the rule holds that
peaceable private persons belonging to the belligerent states are not
mutually enemies. For even those who take no part in the operations
of war have to bear, in the measure of what has above been established
in general and in the following pages will be carried out in detail,
certain burdens, restrictions, sacrifices, disadvantages, in one word duties
towards the hostile state, which war naturally brings with it}.”

And a few lines further on the same writer de-
scribes the peaceable population as being “enemies in
the passive sense’.”

The notion of duties towards an occupying invader
which is thus adopted by the learned professor, and
not by him alone, appears to be open to grave ob-
jection. It brands as criminal acts done by the in-
vaded population, or by individual members of it,
which are only deserving of praise as patriotic, what-
ever may be the right of the invader to repress them
in his own interest, or even in that of the quiet of the
occupied district. The limit of what patriotism may
justifiably attempt in such cases is not the quiet of the
occupied district in particular, but the real good of the
country at large, and humanity will be better respected
if the necessary repression is exercised with a regretful
consciousness of the interest in which that is done, than
if the invader tries to cover his interest by the phari-
saical assumption that he is punishing guilt. The
steps which must be taken against the peaceable popu-
lation can properly be put only on the ground of their
being enemies, as Professor Lueder calls them after
all, though with evident reluctance. And so the a
priori school seems to have arrived at last at the same
point which we have reached inductively, by enquiring

1 Handbuch des Volkerrechts, vol. 4, § 90, p. 371. 2 1d. p. 372.
xt | RELATION OF SUBJECTS TO A WAR. 263

 

what view of the relation of subjects to a war is im-
plied by retorsion and necessity as admitted principles
of action. To sum up:

First, war is undoubtedly a relation of state to
state, whatever else it may be as well.

Secondly, war establishes between each of the states
which are parties to it and the subjects of the enemy
state a relation which entitles the former to treat them
as identified with their state, in other words as enemies,
so far as the necessities of war require, under the
limitations which are recognised as being imposed by
humanity. This measure is different for combatants
and for the peaceable population, as the necessities
and limitations referred to are different for them, but
the difference does not arise from any absence in the
one case of a relation existing in the other. The men
who form a state are not allowed to disclaim their part
in the offences alleged against it, whether those on
account of which the war was begun or those charged
as having been committed by it in the course of the
war, or therefore to claim that hostile action shall not
be directed against their state through them in their
respective measures. And this is just. Whatever is
done or omitted by a state is done or omitted by the
men who are grouped in it, or at least the deed or the
omission is sanctioned by them. That must be so,
because a state is not a self-acting machine. The
impulse which its wheels receive can only be a human
impulse, its rulers can employ only human agency, and
that agency must at least tacitly consent to be so
employed. But if we look more closely at the facts
we shall probably find that in the foreign affairs of a
state the rulers oftener act under the impulse of the
mass than by its tacit permission, and that tacit per-
264 INTERNATIONAL LAW. [ CHAP.

 

mission is seldom conceded by the mass except to
those who embody and represent the national character.
Thirdly, war establishes no direct relation between
the members of the respective belligerent states, and
in that sense it is true that war is not a relation of
individual to individual. The personalities of a state
and of its subjects are distinct; the duties, engage-
ments and liabilities of the former are not the duties,
engagements and liabilities of the latter ; but the latter
are responsible for those of the former. To use the
analogy of private law, a state may be described as a
corporation or technical person, though not as one
with limited liability. The limitation by the laws of
war of the hostile action which may be taken against
an individual is analogous, not to any limitation in
private law of a shareholder’s liability for the debts of
the incorporated company in which his shares are
held, but to the joint effect in private law of the prin-
ciple that the incorporated company must be the primary
object of attack, the shareholders’ liability even though
unlimited being only subsidiary to that of the com-
pany, and of whatever limitation the law may have
imposed for the sake of humanity on the execution to
be obtained against a debtor in any case. So much
protection as a subject derives in war from the dis-
tinction of personalities between him and his state is
an advance on the views practically entertained in the
middle ages, and it includes the prohibition of pillage
and of all fighting not directed by public authority.

Humanity in War.

It is often said that where in war the principle
of necessity conflicts with that of humanity, the former
XI. | HUMANITY IN WAR. 265

 

must prevail, or, as Professor Lueder puts it, that
humanity must be considered only so far as the nature
and end of war permit’. That maxim is not intended
to impair the absolute prohibitions which are among
the laws of war, as that of employing poison. Its
purport is to warn governments and commanders
that, with regard to acts of which the admissibleness
depends on occasion and measure, they must for the
sake of humanity itself let necessity go before it in
judging of occasion and measure. And it may, in
cases of retorsion, require that severities shall be
exercised against persons who, being already in the
power of their enemy, would by the laws of war be
exempt from severities otherwise than in consequence
of their own conduct. It has been said that such
severities may even go to the length of death, regard-
less of the absolute prohibition which in this age the
laws of war pronounce against killing prisoners; and
the instance has been cited of the commander of
insurgents, morally entitled by their strength and
organisation to be treated as belligerents, threatening
to execute a prisoner for every one of his own men
who should be executed for treason. That case how-
ever is, by the hypothesis, one in which the laws of
war, whether rightly or wrongly, have not been ad-
mitted to apply. It is not within the scope of the
present book to discuss what insurgents may do in
order to force their entrance within the protection of
regular war, but in dealing with regular war it behoves
us not to weaken, by any exception whatever, the few
absolute prohibitions which its laws contain.

With regard to things which are permitted when
due respect is paid to occasion and measure, it is

1 In Holtzendorff’s Handbuch des Volkerrechts, vol. 4, § 71, p. 276.
266 INTERNATIONAL LAW. [ CHAP.

 

alleged in justification of the maxim which we are
considering that true humanity is to bring the war
to the speediest conclusion, and that this is best done
by the sternest interpretation of the license given by
necessity. If it were put forward as a benefit for
mankind that all wars should be decided by the first
year or the first campaign, much might be said against
such an opinion. The premium on preparation would
be enormous, and suffering not beneath comparison
with that caused by war would be caused by the
grinding taxation necessary for the preparation which
every state would be compelled to maintain. The
most aggressive powers, and therefore those the least
entitled to succeed, would generally be the best pre-
pared and therefore the likeliest to succeed. Even
perfect readiness would scarcely be thought to give
sufficient security without alliances, and alliances by
which. large parts of the world are divided into op-
posing camps are apt to lead to war though intended
for defence. But such general considerations can have
no effect on the conduct of a particular war. Once
engaged in a war, all governments and commanders
must feel it a duty to their own people to bring it
as soon as possible to a successful conclusion, and for
that purpose they will certainly give necessity pre-
cedence over humanity in all things permitted. It
is as much as can be expected if they abstain from
causing very great suffering by acts of which the effect
on the fate of the war can be but small. The best
hope for the mitigation of war lies in fencing as far
as possible by a prohibition every point at which the
temptation to inhumanity is excessive.

There is one class of rules which it seems particu-
larly important to lay down in a manner admitting of
x1. | IMPROVEMENT OF THE LAWS OF WAR. 267

 

no exception, namely those which relate to the rights
of persons engaged in fighting or in contact with it,
whether as combatants or in the service of the sick
and wounded. To permit exceptions is to create un-
certainty, and amid scenes of carnage and devastation
all uncertainty of personal position tends strongly to
brutalise those who are exposed to it. Let the con-
ditions to be satisfied for the admission of irregulars
to the rights of soldiers, or for the enjoyment of
immunities by those who render philanthropic services,
be made as stringent as real military necessity may
require, but when the conditions are satisfied let the
rights and the immunities be absolutely inviolable.

The Improvement of the Laws of War.

It is almost a truism to say that the mitigation
of war must depend on the parties to it feeling that
they belong to a larger whole than their respective
tribes or states, a whole in which the enemy too is
comprised, so that duties arising out of that larger
citizenship are owed even to him. This sentiment
has never been wholly wanting in Europe since the
commencement of historical times, but there have
been great variations in the nature and extent of the
whole to which the wider attachment was felt. It
was felt in a Greek city for the Amphictyons, and
ultimately for the Hellenic race. In the later days
of the Roman republic and the earlier ones of the
empire, the Stoic philosophy made the commonwealth
of mankind an object of reverence to men of cultivation.
Then Christianity, by which I do not mean what its
founder taught but the system which existed, sub-
‘stituted the Holy Catholic Church as the all-embracing
268 INTERNATIONAL LAW [cHAP.

 

community which chiefly occupied the thoughts of the
faithful, though the claims of mankind were not denied ;
and if it practically narrowed the circle of interest, it
made a compensation by the greater force of the motives
which it called into play. In our own time there is a
cosmopolitan sentiment, a belief in a commonwealth
of mankind ‘similar to that of the Stoics, but stronger
because the soil has been prepared by Christianity,
and by the mutual respect which great states tolerably
equal in power and similar in civilisation cannot help
feeling for one another.

We might have expected that, in each of the forms
which it has assumed, the feeling of a larger citizen-
ship would have had more effect in mitigating the
practice of war than it would seem to have had.
Especially we should have expected that the intro-
duction of a new form by philosophy or religion would
have marked an era in that practice. We find on the
contrary that the progress of war from utter savagery
to its present quasi-civilised condition has been slow
and gradual. The first energies of a philosophy or a
religion, from the ardour of which much might have
been hoped, have spent themselves in obtaining its
general acceptance ; it was not in a position to deter-
mine the action of rulers and armies until it had been
absorbed to a large extent in the steady current of
human motives. That current, purified and deepened
by the contributions which philosophy and religion
have from time to time poured into it, has gone on
raising by imperceptible degrees the standard of action
in war as well as in peace. There have been periods
during which the level has fallen, and one such period
it belongs to our subject to notice. The wars of religion
which followed the Reformation were among the most
xt. | IMPROVEMENT OF THE LAWS OF WAR. 269

 

terrible in which the beast in man ever broke loose,
and yet they occurred in an age of comparative en-
lightenment. Zeal for a cause, however worthy the
cause may be, is one of the strongest and most
dangerous irritants to which human passion is subject ;
and the tie of Protestant to Protestant and of Catholic
to Catholic, cutting across the state tie instead of em-
bracing it unweakened in a more comprehensive one,
enfeebled the ordinary checks to passion when they
were most wanted. Such a degradation of war would
tend to recur if socialism attained the consistency and
power of a militant creed, and met the present idea of
the state on the field of battle. It is possible that we
might then see in war a license equal to that which
anarchism shows us in peace.

It is more agreeable to dwell on two periods of
history during which the mitigation of war has ad-
vanced by unusual strides. One is the age of chivalry,
when a number of influences, which it would be be-
yond our purpose to trace, combined to raise the
warrior’s regard for his personal character and moral
dignity. The result was a temperament largely
coloured by pride and self-respect, and most con-
spicuously developed in the knights and squires, but
not wanting in the fighting men of other ranks. They
gloried in its possession, and were determined to pre-
serve it from contamination by anything which they
deemed to be mean or derogatory. Often indeed their
standard was capricious, as when the English thought
that even strategy was beneath military honour, and
complained that the French would not meet them at a
set place and time. But to chivalry much is due in
the improved treatment of prisoners which it brought
about, and in the deep root taken by the idea of fair
270 INTERNATIONAL LAW. [CHAP.

 

fighting, as in not covering yourself by using the
enemy’s flag or uniform in combat. It needs no proof
that some tincture of the chivalrous temperament has
been at all times the good side of the warrior’s character,
or that it is likely to be produced by the habit of con-
fronting danger, especially when combined with the
habit of command. It seems however that the enjoy-
ment of a classical age is necessary in order that a
virtue, attaining its full power and recognition, may
afterwards take its place in the due proportion of
things; and it is remarkable that the same age was
classical in Europe, through the early friars for Chris-
tian humility, and through the knights for the lofty
scorn of chivalry. But what is excessive may be
trusted to perish, and it was probably very much due
to the impulse given by chivalry that, notwithstanding
the savagery of the wars of religion, the directing
classes in Europe were so prepared that Grotius could
propound his corrections (¢emperamenta) for the laws
of war with a chance of being listened to’.

The lesson which we may derive is that the best
hope for the further mitigation of war lies in a high
standard of character being maintained among soldiers.
In peace considerations of law and justice may be
acted on by nations, and the action taken on such
grounds will in its turn help to mould the character.
In war the stress is such that no considerations can be
relied on for determining action but those which are
already incorporated in the character. The deter-
mination of action in war lies practically with two
classes, commanders by land and sea and statesmen:
the people, once excited enough for war to have
broken out, will approve of any measures which their

1 See above, p. 46.
x1. | IMPROVEMENT OF THE LAWS OF WAR. 271

 

commanders and statesmen recommend for carrying it
on. And of those two classes the commanders are
much the more important for our present purpose,
because their opinion of what necessity requires will
influence the statesmen. The best chance that inter-
ference with an enemy’s commerce at sea, except in
the cases of blockade and contraband, should be limited
to what may be strictly necessary for national defence,
is that English and French naval captains should come
to think interference with it beyond that limit dero-
gatory, not that argument should be more successful
than it has been in making out a difference in principle
between that and other methods of carrying on war.
And those are mistaken friends of humanity who, by
decrying the military and naval professions, do their
best to keep good men out of them, and thereby to
lower the standard of their character.

The second period during which the mitigation of
war has advanced with unusual rapidity is that in
which we live. Within the nineteenth century cities
taken by storm have been rescued from pillage and
outrage ; the treatment of invaded countries, severe as
it still is, has become mild in comparison with what it
was during the Napoleonic wars; privateering has
been abolished over by far the larger part of the
world, and the rest of the world is prepared to accede
to its abolition if the declaration of Paris should be
extended by placing private belligerent property at
sea on the same footing as that of neutrals; Austria
and Italy, in their war of 1866, have set the example
of that extension, in concurrence, it must be admitted,
with plain self-interest, and no necessity of national
defence opposing; the Geneva convention has pro-
tected those engaged in the care of the sick and
272 INTERNATIONAL LAW. [ cHAP.

 

wounded, and the convention of St Petersburg has
prohibited a certain class of cruel explosives. The
cause of this rapid career of improvement must be
something more than the renewed belief in a common-
wealth of mankind which has been mentioned above
as marking our time. If that belief had stood alone, it
might have done no more for the mitigation of war
than was done by it when it was first introduced by
the Stoic philosophy. But along with the renewal of
that belief there has come a remarkable development
of the sentiment of pity, of an enthusiasm of humanity
which has caused a wider and keener sympathy with
suffering than has perhaps ever before been known.
As in the case of chivalry, I do not enter into the
difficult enquiry as to the influences to which the
phenomenon is due: it is sufficient for students of inter-
national law to note the fact. No doubt the enthu-
siasm of humanity and the recognition of a human
brotherhood are closely allied. They are indeed the
emotional and intellectual aspects of the same psycho-
logical attitude, but history proves that they may be
developed in different degrees, and the latter is of
course the weaker of the two for any operative pur-
pose. Thus, to take our examples only from the
nineteenth century, the intellectual recognition of a
duty to mankind has failed to establish prohibitive
rules where there has been no great suffering by in-
dividuals to excite pity. To destroy a harbour which
a belligerent has not the means of effectually block-
ading has been represented with justice as a crime
against the world, but the protests of opinion have not
prevented the attempt from being made in the Ameri-
can war of secession and by Russia at the mouth of
the Danube in her last Turkish war.
a1 IMPROVEMENT OF THE LAWS OF WAR. 273

And now there are ominous signs that pity, as an
operative force in the mitigation of war, has nearly
reached its limit. The Geneva convention is probably
secure, so far as concerns the protection afforded by it
to the enemy, including the peaceable subjects of the
enemy, in tending their own sick and wounded. But
so far as concerns the Red Cross societies which flock
from neutral countries to perform works of mercy on
the field of battle, since their tendency is to assist the
weaker party by relieving him from the necessity of
attending to his own sick and wounded, it is impossible
for those who hear what soldiers say about them to
feel sure that the stronger party in a war will always
allow them free course. Theoretical writers have been
found to preach what at one time they had been unani-
mous in denouncing, the devastation of whole tracts of
country for sheer terror, or in vengeance for stubborn
resistance by the enemy. And the bombardment of
undefended coast towns has been advocated by pro-
fessional sailors, without restriction to the case of their
containing important magazines, which forty years ago
was felt to be the only justification for the bombard-
ment of Odessa, and was not universally admitted as a
justification. The pity which is effectual to work great
changes is that which, in running at once through
millions of men, is intensified by the enthusiasm which
masses engender. But pity for suffering in war is
liable in democratic times to encounter other feelings
of equal extent and opposite tendency, the conscious-
ness that the war in which the nation is engaged has
been willed by it, and the national determination to
triumph at any cost.

What has been said in this section may be useful

to the student of international law by leading him to
w. 18
274 INTERNATIONAL LAW. [ CHAP.

 

reflect on the conditions under which he has to work
for its amendment, especially with regard to war, but
it is not meant to discourage him from that work.
That international law is less certain than national
law is often made a reproach to it, necessarily as that
consequence flows from there being no legislature to
enact it and no judicature to declare it. The student
of international law may to some extent console him-
self with the reflection that legislatures and judicatures,
by the very fact of their fixing the law, are sometimes
a hindrance to its improvement. In their hands, if
they are too conservative, the process of development
may be arrested; the living tissue of the law may be-
come ossified ; while if a branch of law is still free to
develop itself under the influence of public opinion, the
student has the power, and with it the responsibility
and the privilege, of assisting in its evolution. Two
objects to be attained have been already indicated: as
to law, the extension of the list of absolute prohibitions,
so that methods of warfare which are still approved or
faintly condemned may gradually be brought under a
ban along with poisoned weapons and explosives
weighing less than 400 grammes; as to practice, an
increased sensitiveness to the guilt of using even a
permitted method when the suffering that must result
is out of any reasonable proportion to the military
advantage promised. Obviously also, in cases of the
latter kind, a step is gained whenever it is found pos-
sible to reinforce the sensitiveness of conscience by a
better definition of the occasion and measure on and in
which alone a certain method is permitted. But in
this there must always be extreme difficulty, as may be
seen in the little success which has attended the at-
tempts to limit requisitions and contributions. And
x1. ] IMPROVEMENT OF THE LAWS OF WAR. 275

 

where the problem cannot be satisfactorily solved, it is
safer in my judgment to abstain from laying down a
rule, and to appeal as strongly as the case admits to
the highest principles of action, than to proclaim a rule
and permit necessity to be pleaded for breaking it.
The plea of necessity, even when justified, has a
dangerous tendency to corrupt and degrade those who
urge it; and when it has sapped the foundations of
one fence, no other fence into the construction of which
it has been introduced can be greatly relied on.
Cambridge:
PRINTED BY C. J. CLAY, M.A. AND SONS,
AT THE UNIVERSITY PRESS.
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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