---
title: 'The History and Nature of International Relations'
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## CORNELL University Library

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Cornell University Library

The history and nature of international

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The original of this book is in the Cornell University Library.

## THE HISTORY AND NATURE of INTERNATIONAL RELATIONS

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THE MACMILLAN COMPANY
NEW YORK · BOSTON · CHICAGO · DALLAS
ATLANTA · SAN FRANCISCO

MACMILLAN & CO., Limited LONDON · BOMBAY · CALCUTTA MELBOURNE

THE MACMILLAN CO. OF CANADA, Ltd.

## $Edited\\ by$

Edmund A. Walsh, S.J., Ph.D., Regent, School of Foreign Service, Georgetown University

#### Contributors

Stephen P. Duggan
Michael I. Rostovtseff
Carlton J. H. Hayes
James Brown Scott
James Lawrence Laughlin
John Bassett Moor
Esteban Gil Borges
Leo S. Rowe
Paul S. Reinsch
Edwin M. Borchard

# New York THE MACMILLAN COMPANY

1922

All rights reserved

#### PRINTED IN THE UNITED STATES OF AMERICA

#### COPYRIGHT, 1922, By THE MACMILLAN COMPANY

Set up and printed. Published January, 1922.

FERRIS PRINTING COMPANY
NEW YORK

# To Constantine E. McGuire, Ph.D. With respect and appreciation

### PREFACE

In order to afford the students of the School of Foreign Service of Georgetown University an opportunity to supplement and illustrate their classroom work by a rapid survey of the principal phases in the history of relations between sovereign states from the earliest antiquity down to our own times, the authorities of the School have undertaken to invite, each year, a number of distinguished scholars, each a master in his respective field, to deliver a special course of lectures on international relations. The first fifteen of these lectures articulated into an organic whole and entitled "The History and Nature of International Relations," were delivered in the Auditorium of the National Museum, Washington, D. C., and were open to the general public. The presence, in gratifying numbers, of the general public on alternate Friday evenings during the winter and spring of 1920-1921 furnished abundant proof of the growing interest now being manifested by thoughtful Americans as well in theories of Political Science as in the actual conduct of our foreign relations.

#### PREFACE

lations and even of such preambles of the science of government as a right understanding of the origin of civil society and its first postulate, authority, since foreign policies will naturally be largely influenced by the philosophy underlying the decisions of those who direct the destinies of states.

It is hoped that the present volume will clear a satisfactory approach to the detailed studies of the various aspects of international relations which this series will

present from time to time.

In conclusion, the Editor begs to express to the Regents of the Smithsonian Institution the thanks of the authorities of the School of Foreign Service for the use of the Auditorium of the National Museum; acknowledgment of great indebtedness is likewise made to Dr. Constantine E. McGuire of the Inter-American High Commission for his untiring labors in arranging the details of the course,—to Dr. J. Franklin Jameson, Department of Historical Research of the Carnegie Institution of Washington, for his gracious words of introduction on the occasion of the first lecture, and to Mr. Thomas H. Healy, Secretary of the School of Foreign Service, into whose capable hands was entrusted the important but thankless task of correcting the proofs of this publication.

August 8, 1921.

by

Stephen P. Duggan, Ph.D.

The College of the City of New York

Director of the Institute of International Relations

| 1. Nature of Diplomacy | \] 4 |
|---|---|
| national Relations | 13 21 |
| INTERNATIONAL RELATIONS IN THE ANCIENT WORLD |  |
| by |  |
| Professor Michael I. Rostovtseff, Ph.D., D.Litt. (Oxon), of the University of Wisconsin, formerly of the University of Petrograd; Member of the Russan Academy of Sciences and Corresponding Member of the British Academy. |  |
| 1. Source Material and Method of Approach | 31 35 37 |
| 4. Ancient Treaties | 40 |
| 5. Religion as an Influence in International Relations | 45 |
| 6. Peace by Arbitration in the Ancient World | 49 |
| Conflict between Right and Force | 91 55 |
| Period of Constant Flux | 57 |
|  | ~: |

#### MEDIEVAL DIPLOMACY

by

| 1. | The Medieval Heritage | 69 |
|---|---|---|
| 2. | Medieval Churchmen and International Law | 74 |
| 3. | The Truce of God, Chivalry, Papal Ambassadors | 77 |
| 4. | The Catholic Ideal of Universal Peace | 81 |
| 5. | Evolution of Professional Diplomacy | 85 |

## DEVELOPMENT OF DIPLOMACY IN MODERN TIMES

by

### Hon. James Brown Scott, A.M., `.U.D., LL.D. Secretary of the Carnegie Endowment for International Peace

| 1. | Popular Concept of Diplomats and Diplomacy | 93 |
|---|---|---|
| 2. | True Functions of Diplomats and Diplomacy | 95 |
| 3. | The Modern State System and the Law of States | 96 |
| 4. | The Balance of Power, Its Nature and Application | 99 |
| 5. | The Balance of Power in Modern Times, The Holy |  |
|  | Alliance | 107 |
| 6. | The Content of Modern Diplomacy | 110 |
| 7. | Arbitration, Definition and Historical Application. | 112 |
| 8. | International Conferences—The Ideal of Simon |  |
|  | Bolivar | 116 |
| 9. | The Hague Conferences | 120 |
| 0. | The United States as an Exemplification of Inter- |  |
|  | national Organization | 194 |

# ECONOMIC FACTORS IN INTERNATIONAL RELATIONS

by

| Professor James Laurenc Laughlin, Ph.D. (Harvard), Ph.D. (honoris causa, Geissen), formerly of the University of Chicago; Director of the Journal of Political Economy. |  |
|---|---|
| 1. Economics and Politics | 133 |
| 2. Movements of Population | 135 |
| 3. Foreign Trade and Shipping | 138 |
| 4. Economic Postulates of Foreign Trade | 141 |
| 5. Foreign Exchange | 145 |
| 6. Financial and Industrial Obstacles to International |  |
| Peace | 148 |
|  |  |
| SPECIFIC AGENCIES FOR THE |  |
| PROPER CONDUCT |  |
| OF INTERNATIONAL DELATIONS |  |
| OF INTERNATIONAL RELATIONS |  |
| by |  |
| Hon. John Bassett Moore, LL.D., Professor at Columbia University; formerly Counsellor of the Department of State; Member of the Permanent Court of The Hague; Vice-President of the Inter-American High Commission; Member of the International Commission of Jurists; President of the Pan-American Society of the United States. |  |
| 1. Amicable Methods—Negotiations—Good Offices— |  |
| Mediation—Arbitration | 157 |
| 2. Non-Amicable Methods. Non-Forcible, Rupture of |  |
| Diplomatic Relations. Forcible, Reprisals—Pa- |  |
| cific Blockade, War—Limited War—General |  |
| War | 167 |

# THE EVOLUTION OF INTERNATIONAL PRIVATE LAW

by

| **~** |  |
|---|---|
| The Honorable Esteban Gil Borges, LL.D. (Georgetown) Minister of Foreign Affairs, Venezuela |  |
| 1. The Evolution of International Private Law | 185 |
| LATIN AMERICA AS A |  |
| FACTOR IN INTERNATIONAL RELATIONS |  |
| by |  |
| Hon. Leo S. Rowe, Ph.D.,LL.D., Director General of the Pan- American Union; President of the American Academy of Political and Social Sciences. |  |
| 1. The Philosophy of American History | 203 |
| 2. Latin American Ideals—Bolivar | 205 |
| 3. Sources of Potential Influence for American States. | 208 |
| 4. Pan-American Co-operation | 210 |
| 5. The Role of the Americas | 212 |
| THE FAR EAST AS A |  |
| FACTOR IN INTERNATIONAL DEVELOPMENT | rs |
| by |  |
| Hon. Paul S. Reinsch, Ph.D., LL.D., former Minister of the United States to China |  |
| 1. China before contact with Western civilization | 219 |
| 2. Present-day China | 220 |
| 3. Relations between China and Japan during and after |  |
| the World War | 223 |
| 4. China, Japan and Siberia | 225 |

# THE UNITED STATES AS A FACTOR IN THE DEVELOPMENT OF INTERNATIONAL RELATIONS

by

### Professor Edwin M. Borchard, LL.B., Ph.D., of the Law School of Yale University

| 1. | The Genesis of American Foreign Policy | 229 |
|---|---|---|
| 2. | Nature of Early American Policy | 234 |
| 3. | Monroe Doctrine | 235 |
| 4. | Interpretation of the Monroe Doctrine | 240 |
| 5. | Foreign Views on the Monroe Doctrine | 244 |
| 6. | Latin America and the Monroe Doctrine | 248 |
| 7. | The Monroe Doctrine and the Far East | 251 |
| 8. | Indirect Influence of the United States on World |  |
|  | Politics, Neutrality—Recognition—Freedom of |  |
|  | the Seas-Minor Doctrines, Contributions and |  |
|  | Policies | 258 |
| Ar | ppendix | 295 |

# THE HISTORY AND NATURE OF INTERNATIONAL RELATIONS

### CHAPTER I.

## THE FUNDAMENTALS IN A SCIENTIFIC STUDY OF INTERNATIONAL RELATIONS

The reputations not only of individuals but also of professions have suffered as a result of the Great War. Probably no profession has fallen more in public esteem than diplomacy. The accusations against the diplomatist range from mere stupidity in not foreseeing what the course of events would be, to deliberate intrigue in bringing about the course of events. Practically every aspect of diplomacy, its aims, methods, policies, and agents have been condemned. No course, therefore, on the *History and Nature of International Relations* would be complete without an attempt to discover how modern diplomacy originated, of what its essential nature consists, whether its methods are calculated to realize its aims, how far its agents can be held responsible for results and whether its defects are so obvious as to suggest proper methods of reform. It would be futile to try to make an exhaustive analysis of the subject in a single paper. This chapter, therefore, will consider briefly certain elements only which a scientific study should include and the criteria which a serious student should employ.

## Ι

II

#### HISTORY OF DIPLOMACY

Diplomacy was originally the servant of war when war was the normal state of international intercourse. It was an agency to secure without fighting the ends for which war was waged. Today the positions are re-

'No student of diplomacy should fail to study carefully the discussions on publicity in the conduct of foreign policy as found in Hansard's Parliamentary Debates passim and in the Report from the Select Committee on the Diplomatic Service, 1861. The latter is an invaluable statement.

of three or four months, and the term was only gradually lengthened to three years, at which it remained until the Republic was abolished by Napoleon. Moreover, from the very founding of the permanent embassy Venice laid down rules to be followed by its ambassadors abroad and required them to make comprehensive reports to the Senate of their observations and activities.1

\*For discussion of Grotius' place in International Law, see Appendix.

it is necessary as a matter of convenience, comity and custom.1

Ambassadors, legates, nuncios.

(2) Envoys extraordinary and ministers plenipotentiary.

(3) Ministers Resident accredited to the sovereign.

signatures to treaties by an appeal to the alphabet.

The French Revolution with its emphasis upon the political principles of nationality and democracy had a profound influence upon the qualities demanded of a diplomatist. The ambassador no longer represents a sovereign to a sovereign but a nation to a nation. Moreover, the nineteenth century has been one of great international congresses in which the duty of considering the common interests of Europe or of the world has become a function of diplomacy. A knowledge of history, geography, international law and political psychology became of greater importance in the ambassador than the personal qualities of suavity and astuteness, though these are by no means negligible even now. Again, the Industrial Revolution, emphasizing the place of the economic element in the affairs of men, has resulted in the need in the diplomatist of today of a knowledge of such subjects as the laws and conditions of trade and the general principles of international finance. It must not be overlooked that the commercial purposes of diplomacy tend constantly to become more

<sup>1The duties, privileges and functions of these diplomatic agents are discussed somewhat in detail in chapter beginning on page 157.

## III

#### THE AGENTS OF DIPLOMACY

the monarch was the state and when his powers were gradually distributed among the organs of government the duty of speaking and acting for the state naturally remained with the executive. Few will deny that legislatures are unsuited to originate and determine the foreign policy of a country and conduct delicate negotiations, which are of necessity often complicated and where the issues involved may be momentous. In no constitutional country, however, is the executive power irresponsible in international relations. It is everywhere subject to the intervention of the legislative power, though the method of intervention differs. This control, however, extends to particular questions of foreign affairs rather than to foreign policy generally. In the United States each administration pursues policies without any legislative control whatever unless the policies require the passage of treaties or laws. For example, the Taft administration encouraged the financial consortium in China. The Wilson administration discouraged it. And in the countries organized upon the parliamentary system, while the legislative control is more direct, it rarely attempts to interfere with policy.

Under modern conditions the chief agencies acting for the executive in the conduct of international rela-

ions are:

(A) The Department of State or Ministry of Foreign Affairs. The public law of every state, whether written or customary, provides for a Ministry of Foreign Affairs or a Department of State composed of a trained body of permanent officials headed by a member of the cabinet whose duty it is to handle the international relations of the country. As early as the sixteenth century most of the European monarchies had established a special branch of the government for the conduct of foreign affairs, and the office has steadily grown in influence and dignity. Though the powers of the Minister for Foreign Affairs vary according to the political organization of different states, he is nearly everywhere the regular intermediary between his country and foreign countries from whom all directions and communications to foreign states emanate and by whom all directions and communications from foreign states are received. In Great Britain, for example, neither the sovereign nor parliament can give orders directly to diplomatic agents.

(B) Regular Diplomatic Agents Abroad. Since the status of ambassadors and subordinate diplomatic agents has already been discussed, only their relations with the chief of the foreign office need to be considered here. Before the invention of the telegraph, the position of ambassador was undoubtedly one of greater responsibility than today. A great deal was left to his discretion and good judgment because by the time instructions were received from home conditions might so have changed as to render them out of date. Frequently he had to act upon his own initiative when a difficult question arose. Today he can receive telegraphic directions from home. The result has been to enable the Minister of Foreign Affairs to have a more immediate control of negotiations than formerly. Probably the conduct of Foreign Affairs has thereby become more steady and rehable. And yet it is a question whether the opinion of the man at the distant post, familiar not only with the facts but with the psychology surrounding the problem, is not as important today as

ever. Official correspondence which must be published has become formal. For example, it is now the general practice for diplomatic agents abroad to repeat conversations with foreign ministers of state without comment. But there is much unofficial correspondence of an intimate nature between the agent abroad and the minister at home, a correspondence moreover which usually remains private. The importance, therefore, to the student of diplomacy of a study of the memoirs of statesmen and diplomatists is obvious. Telegraphic communication has obviated the necessity of the long and detailed instructions that were formerly given to diplomatic agents abroad. One of the unfortunate incidental results for the student was the discontinuance of such collections as that mine of information the French Recueil des Instructions données aux Ambassadeurs et Ministers de France depuis les Traités de Westphalie jusqu'à la Revolution Française.

(C) Occasional or Special Diplomatic Agents. During the seventeenth and eighteenth centuries, monarchs frequently sent secret agents abroad, sometimes to realize a particular object, sometimes to report on conditions without the knowledge of the regular representative. That the latter practice had not completely disappeared even in our own day was made evident in the Lichnowsky revelations. Experience justifies the belief that the practice can hardly fail to affect the diplomacy of the country unfavorably, making it uncertain and personal. When a special agent is appointed today for a particular object, he is usually an expert such as may be needed to negotiate a treaty of commerce or regulate a boundary dispute or other matter outside the scope of the regular diplomatic representative. When a special embassy has a merely ceremonial character, it may result in the increase of international good-will. When it is of a political nature, the speculation and even suspicion that are roused may render such a result dubious. A special agent of a political nature is likely also to

rouse resentment among the members of the permanent embassy.1

#### IV

## LEGISLATIVE INTERVENTION IN THE CONDUCT OF IN-TERNATIONAL RELATIONS

The student of international relations must not overlook the fact that the problem of control is one of constitutional law and that his study, therefore, must deal with the internal structure of the state as well as its external activities. This is particularly important in considering what is vaguely called "secret diplomacy", a term which is variously defined but by which the impression is generally conveyed that the nation may be committed to policies or decisions by statesmen or diplomatists without the knowledge of its representatives. The justification of the charge can readily be tested by a brief consideration of the constitutional prescriptions for the conduct of international relations as found in the chief states of the world.

Parliamentary control over the conduct of international relations is vested primarily in the Foreign Affairs Committee of the Chamber of Deputies which reports to the Chamber on all questions which are submitted to it. It can demand that the Minister of Foreign Affairs refer to it whatever papers or persons it wishes to examine. Should the Minister decline to accede to its request on account of reasons of State, the Committee usually acquiesces in his view. If the Committee, however, persists in its demand, the matter is brought before the Chamber and if the Chamber supports the Committee, the almost inevitable result is that the Ministry of the day resigns.

The third element of legislative control resides in the General Budget Committee of the Chamber, the most important and powerful of all the legislative committees which passes upon the budget for foreign affairs. It seldom rejects it. The Budget Committee, moreover, publishes at the end of every year a report on foreign affairs which is a valuable record of French policy. The report is usually written in a sympathetic and explanatory tone. In fact, because of the delicate and complicated nature of European diplomacy and the unusual need in France of considering the security of the State above all things, there has been little desire or attempt on the part of the Chamber of Deputies to exert control over foreign policy. This has been even more true of the Senate which has no permanent com-

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tion relations was there, if any?

Article VIII of the Constitution provided "there shall be appointed in the Federal Council a Committee on Foreign Affairs over which Bavaria shall preside, to be composed of the plenipotentiaries of the kingdoms of Bavaria, Saxony, and Wurtenburg and of two plenipotentiaries of other states of the Empire, who shall be elected annually by the Federal Council." This committee existed solely for the purpose of receiving information on foreign affairs which was usually given by the Imperial Chancellor himself and for providing means for an exchange of views. It had no control, exerted little influence, and between 1871 and 1908 met but twice. As a result of Emperor William's celebrated

interview on the international situation in 1908 which was published in the London Telegraph and which caused a demand in Germany that he refrain from such disclosures in the future, it became the practice of Bavaria to call meetings of the committee in connection with any foreign question of great magnitude and last-

Almost as slight was the Reichstag's control in international relations. It had no committee on Foreign Affairs. In practice it could deal with questions of foreign policy first by means of interpellations. When an interpellation signed by thirty members was reached on the order of the day, the President of the Reichstag asked the Chancellor "whether and when" he would answer the interpellation. If the Chancellor consented to answer, the interpellator presented his views, the Chancellor or his representative replied and a debate followed if desired by at least fifty members. But, previous to 1913, motions on the subject of the interpellation were not permitted. In fact, the knowledge that the Chancellor or his representative would not participate in the debate on a critical motion, and that, even if the motion were carried it would be merely an academic expression of opinion, was an effective check to the presentation of such a motion. Few such motions or interpellations were made in practice.

debate.

It is obvious that, under the Empire, the German constitution provided but slight opportunity for legislative intervention in the conduct of international relations by the executive and that in practice little interference took place. The Constitution of the new German Commonwealth gives much greater opportunity for legislative control. Article 45 reads, "The National President represents the Commonwealth in matters of international law. He concludes in the name of the Commonwealth alliances and other treaties with foreign powers. He accredits and receives ambassadors." Article 35 reads, "The National Assembly appoints a Standing Committee on Foreign Affairs which may also act outside of the sittings of the National Assembly, and after its expiration or dissolution until a new National Assembly convenes. Its sittings are not public, unless the Committee by a two-thirds vote otherwise provides." No provision is made for a similar committee in the National Council, which supersedes the Bundesrat of the Imperial regime. The resemblance to the American system of control is obvious, but it is too soon to pass judgment upon the actual working of the German republican system

Great Britain—According to the public law of Great Britain, the whole conduct of international relations is vested in the Crown. The Ministry which acts in the name of the Crown and assumes responsibility for its acts depends for its tenure upon maintaining a majority in the House of Commons. Its control over foreign affairs is, therefore, responsible in form and has become in practice more and more prudent. Parliament has no committee on Foreign Affairs and its intervention in international relations is made first through interpellations. These are answered in person by the Secretary of State for Foreign Affairs or by an Under-Secretary, usually with considerable frankness. The plea on the part of the Foreign Secretary that fuller information would not be for the best interests of the State

is generally accepted. An adverse vote would mean the resignation of the ministry in accordance with the principle of collective responsibility. The other method for legislative intervention in international relations is through the voting of the foreign office budget when international commitments may come under discussion. Before the war these discussions were not keen and Sir Edward Grey probably spoke wisely when he said on the occasion of one such debate "As long as the House of Commons remains without some great measure of devolution, its business will be so congested that, with the best will in the world, the House would never be able to acquire that control of imperial policy which it can only acquire by frequent debates on important subjects." In proof of this, one responsible writer has calculated that in the first decade of the nineteenth century 26 per cent of the debates in the House of Commons were devoted to foreign relations, whereas in the last decade but one, the per cent was but eleven.

Apparently the House of Commons itself believes that it can exercise effective control over the conduct of international relations by the ordinary processes of legislation, for in March, 1918, after public opinion had been much roused over the disclosures of the secret treaties, it voted down the following motion: "That, in the opinion of this House, a Standing Committee of Foreign Affairs should be appointed, representative of all parties and groups in the House, in order that a regular channel of communication may be established between the Foreign Secretary and the House of Commons, which will afford him frequent opportunities of giving information on questions of foreign policy and which, by allowing members to acquaint themselves more fully with current international problems, will enable this House to exercise closer supervision over the general conduct of Foreign Affairs".

The United States—The Constitution of the United States provides Art. II, Sec. 2, Par. 2, that the President "Shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls." No other reference to the conduct of international relations appears in the Constitution. In 1789 there was established by law the Department of State whose functions were and still are to correspond with and to instruct diplomatic and consular agents abroad and to negotiate with the agents of foreign countries in the United States "or to such other matters respecting foreign affairs as the President of the United States shall assign to the said department". In the United States, therefore, the conduct of international relations with the exception of treaties, is given to the executive. What methods of control reside in the legislature?

The outstanding differences between the parliamentary system of government and the American is that the President of the United States holds office for a fixed period by direct commission from the people irrespective of the legislature while under the parliamentary system the executive, i. e., the ministry, must retain the confidence of the legislature or be voted out of office. In the American system, a cabinet officer is not and cannot be a member either of the Senate or the House of Representatives. It follows that the Secretary of State cannot be interpellated in Congress on questions of foreign policy. His only connection with either House is through the Committee of that House which deals with international relations, the Senate Committee on Foreign Relations and the House Committee on Foreign Affairs, of which two the former is by far the more important and influential. Each House in practice depends on the judgment of its Committee and as

The President transmits pro forma to the Senate many papers as "Executive Documents" because they concern international matters that should constitutionally come before it. Either House may call upon the President for other papers or for information which the Secretary of State transmits "if not incompatible with public interest." Such requests frequently meet with refusal. This does not prevent Congress from debating the subject should it not agree with the executive view of the public interest, but its ignorance may cause it to hesitate to act, as in the case with Mexico during the last administration. In fact, except where an executive policy in international relations necessitates the voting of monies by Congress, there is no way of stopping the President in his course of action until the end of his term, except of course by the extreme method of impeachment, which is very hard to apply in practice. Today few will differ from Mr. Bryce in the judgment he expresses in his "American Commonwealth" viz:

"In all free countries it is most difficult to define the respective spheres of the legislature and executive in foreign affairs, for while publicity and parliamentary control are needed to protect the people, promptitude and secrecy are the conditions of diplomatic success. Practically, however, and for the purposes of ordinary business, the President is independent of the House, while the Senate, though it can prevent his settling anything, cannot keep him from unsettling everything. He, or rather his Secretary of State, for the president has rarely leisure to give close or continuous attention to foreign policy, retains an unfettered initiative by means of which he

## V

#### METHODS OF DIPLOMACY

There are manifold methods of diplomatic action,

'The most illuminating discussion of this whole subject is found in Parliamentary Papers for 1912, "Treatment of International Questions by Parliaments in European Countries, the United States and Japan," from which I have freely drawn.

(A) Treaties. Treaties are in the nature of contracts between states. Unless accepted by substantially all states, certainly by all the first-class powers, they are not international law and their "sanctity," therefore, is simply the sanctity of a contract. Because, however, of the importance of the interests involved in the relations between states, the violation of a treaty is regarded as a flagrant breach of customary international law. Probably at least ninety per cent of treaties are of a non-political character dealing with practical problems that arise in international intercourse and seldom causing international friction of a pronounced kind. Political treaties embody the policy of the state, i. e., the attitude adopted by the state in its international relations to secure its own welfare primarily. Political treaties are the expression of that attitude as suggested or permitted by the conditions existing at the time of their signature. They are the chief determinants of the reciprocal rights and obligations of states, and disputes arising from them are generally the result of changed political conditions.

The rejection of the Covenant of the League of Nations by the United States and the lack of respect for some of its political provisions manifested by some states that have accepted it are fairly good evidence that the world is not yet ready for an international system in which there is even a suspicion that the independence, security, interests or dignity of the individual State is subject to control or supervision by any external influence. The recent catastrophe, however, has generated a horror of war among all civilized nations as a means of settling international dispute and it may, therefore, reasonably be expected that arbitration which is voluntary in its nature and which avoids the objections against both international control and war will be viewed with increasing deference in the years to come. The rejection by the League of Nations of any extension of the principle of voluntary arbitration in its committee's report on the establishment of a Permanent Court of International Justice is indicative of the existence of a determined opposition to the obligatory principle.

tion meant the Great Powers whose diplomats when they assembled in a European congress understood functions that were both legislative and administrative in character. It has been customary for a congress to record in its protocols the principles upon which its conclusions were based, and to invite nations not represented at the congress to adhere to the results of its deliberations. It is obvious, therefore, what a great influence upon the spirit and practice of diplomacy the Concert of Europe has had. As long as it functioned, it maintained peace and it laid the foundations for an international organization which extends beyond the confines of Europe.1

## CONCLUSION.

In the study of no subject dealing with human affairs does the student need a greater equipment of knowledge, discernment, imagination and impartial judgment than in the study of diplomacy. He must remember that diplomacy deals with the relations between nations, and, to understand the reasons either for the general policy pursued by a nation over a long space of time or for its attitude in a particular international situation, he must know its constitution, the actual working of its government and the relative strength of the political parties in it, the national aims, the national temperament, and the dominant personalities. In the study of any particular problem he must try to have access to all the sources on every side and

The student thus equipped is prepared to engage intelligently in the study of a wonderful and magnificent drama. All the instincts and passions of the individual are in action on a grand scale in the intercourse between nations. The student will probably learn to admire the accomplishment of diplomacy rather than to condemn its failure. And he will, no doubt, conclude that as human nature, with its mixture of what is instructive and what is rational, of what is constructive and what is destructive, is the one constant factor in international relations as it is in life generally, so diplomacy will ever continue an essential element in the intercourse between states whatever world organization may be adopted, just as compromises will ever be necessary in the daily relations of individuals under whatever system of morals and religion they may live.

STEPHEN P. DUGGAN.

### CHAPTER II.

## INTERNATIONAL RELATIONS IN THE ANCIENT WORLD

T

#### SOURCE, MATERIAL AND METHOD OF APPROACH

No exhaustive treatment of international relations in the ancient world exists in scientific literature. The two volumes devoted to this subject by Coleman Philippson¹ are written by an excellent lawyer, a good specialist in modern international law, but a dilettante in the domain of ancient history. On the other hand, many special investigations written by classical scholars chiefly on the subject of international treaties and interstatal arbitration, although exhaustive and sufficient in regard to the special subject in question, do not cover the whole field of international relations and are silent on many important general questions. I refer to the recent works of Marcus Niebuhr Tod and A. Raeder on arbitration and to the book of Taubler on Roman treaties.² I cannot myself give in these two short papers a full account of all the important and complicated questions connected with the main problem of the system of international relations in the ancient world, but I should like to insist on some fundamental points which unfortunately have been generally mistreated and misinterpreted. My point of view is that of a historian, and as such I insist on the treat-

<sup>2Marcus Niebuhr Tod, International Arbitration Among the Greeks Oxford, 1913; A. Raeder, L'Arbitrage International chez Les Hellenes, 1912; E. Täubler, Turferinne Romanum, Studia zur Entwicklungsgeschicte des römer Reiches, I Die Staatsverträge und Vertrags Verhältnisse; Berlin-Leipzig, Teubner, 1913.

The first question one may put to me is—why should we begin the history of international relations with the so-called classical epoch, and not with the so-called middle ages, when the system of European states, totally different from the system of states which prevailed during the classical period, was formed? I think the question itself implies a misinterpretation of historical facts. The system of the modern European States is in no way a creation of the so-called middle ages. Most of the modern European States are nothing but a development of the provinces of the Roman Empire. The natural frontiers of Spain, France, Italy, even Britain of today are the ancient frontiers of Italy and the western Roman provinces during the Roman Empire. Modern Germany covers the territory of the Roman province, Germania, as it was planned by the genius of Caesar and Augustus. Austrian territory before the war coincided with the boundaries of the Roman Danube provinces. On the other hand the foundations of civilized life in modern Europe were laid during the classical period and the type of our European and American mentality was inherited by us from our classical predecessors.

which form the basis of our international law formed the foundation of the international relations of the ancient world as well. I cannot discover any capital difference. Modern Europe moves on the same lines on which the ancient world moved for centuries. I do not believe I am exaggerating. I will endeavor to prove this statement in this paper, from the historical as well as the systematic point of view. But please do not misinterpret my words. Some of the institutions and ideas I speak of were fully developed in the ancient world. Others may be traced at their very beginning only, and it was the destiny of later epochs to develop them more fully.

Now the question why some of these institutions and ideas developed, while others did not, is of the greatest historical importance. If we know the causes of the florescence of some institutions and of the comparative debility of others we may judge, perhaps, of the future of our own similar institutions and distinguish the conditions under which they are growing or decaying. For, our own modern world is still in the process of its ascendant movement; we see no signs of arrest or decay. The ancient world also had its time of uninterrupted progress which lasted many thousands of years. But the ancient world accomplished its circle of evolution and experienced a period of deep decay, a period of return to very primitive conditions. And it is highly instructive to see which institutions among those with which we are concerned in studying international relations have survived and which died out completely or remained as mere survivals, and finally, though not least important, it is desirable to know the causes of this phenomenon.

### TT

What are the causes of this fundamental difference? Have we to assume that ideas regarding peace and war were totally different in the ancient and the modern world? Can we affirm that the ancients did not look on peace as a desirable thing, and as a good in itself? Was the ancient psychology totally different from our own? By no means. Like the modern world, ancient thought regarded peace as the most desirable thing and peace conditions as the ideal conditions of life. They praised peace in prose and poetry not less than we do, although they had, as we have, a full understanding of the greatness of war in itself, of its necessity and the enormous bene-

fits for mankind which it sometimes brought with itself. "Polemos pater ton ergon," says one of the greatest Greek poets. I cannot trace in the whole ancient literature on this subject any difference in principle. Like other matters, we inherited our ideas on peace and war from the ancient Greeks and Romans.

An explanation of these different theoretical associations which have had and still have an enormous practical value must be sought in the domain of historical evolution. As a matter of fact, ancient society grew from conditions totally different from those influencing modern society. Civilized life formed for a long time small islands in the ocean of barbarism. Thus, for an ancient civilized state, neighbor was equivalent to foe. The ancient state evolved through the process of integration of petty political formations and this process assumed the form of ever-renewed wars. To this is due the constant state of war between the different civilized states, even of the same nationality. The general idea of war as the natural status influenced the forms of international relations and shifted from one focus of civilization to another. In this way the general principle took firm root, although the actual state of things was very often in contradiction to this main idea, as, I must add, our theory is so often in contradiction with the real state of things.

How different the history of international relations in the modern world! The family of European nations grew up not from conditions of war of all against all; modern European nations were children of the mighty and united Roman Empire, whose main foundation was general peace for the whole united civilized world. Orbis Romanus was for the Romans the Orbis Terrarum. Outside of it was barbarism,—no law, no right. The natural condition of this Roman world-state was peace—Pax Romana. It is symbolic that Augustus, the creator of the Roman world-empire, erected on the campus Martius, the field consecrated to Mars, the God of War, an altar to the deified peace, Ara Pacis.

Although the points of departure of the ancient and the modern world in the domain of international relations were so utterly different, the forms in which these relations were expressed were almost the same, but of course they were used differently. The treaty as such was the main basis of these relations in the ancient world. Without treaty no established peace was possible and no regular and formal relations between the citizens of different states could exist. All was based on treaties; interstatal intercourse, intercourse between foreigners and the state, intercourse between foreigners and individual citizens, and the like. For this reason in the study of international relations of the ancient world a careful investigation of the different extant treaties must form the main foundation of our knowledge. It is a pity that we are still waiting for a continuation of the valuable and exhaustive collection of R. Von Scala containing all extant ancient treaties.1 Nevertheless we must try to build up the general story of international relations on the ground-work of present available evidence.

## III

# MEANS OF PRESERVING PEACE—THE BALANCE OF POWER IN ANTIQUITY

The ancient world in its international relations aimed, like the modern, at building up, by all means, a general and lasting peace. But there are two different ways which lead to this goal. Both have been used by the ancient and the modern world, and neither was very successful. The first was to impose peace by force, a method used by im-

The attempts at building up a system of independent states, a family of states, were not crowned by lasting success in their main scope. Nor did they bring about general peace either. War after war interrupted the peaceful evolution of the ancient world during the periods of existence of the balance of power. But yet, whereas the epochs of the world-states were epochs of stagnation as regards new ideas and new forms of relations in the international life, the periods of the balance of power were great creative periods in all domains, including the domain of international relations and international law. Different forms of treaties and alliances, of federations, of arbitration, all the achievements in the domain of private international law were the results of these short periods when the systems of free and independent states, which

mutually recognized each other's mutual rights, were prevailing.

Let me give you a short historical sketch account of this shifting of historical balance. This account will explain better than any theoretical considerations the reasons for the difference between the achievements of the ancient and the modern world in the realm of international relations.

#### IV

#### ANCIENT TREATIES

The very first attempt to create civilized and organized political and social life in the ancient world, in the first states of Babylonia and Egypt, those petty tribal city-states built up by the Sumerians in Babylonia and by the native population of Egypt, brought about the first attempts to organize the interstatal relations between these different independent states. Already in the IV Millennium B. C., as we read, on a recently discovered cone of King Entemena of Lagash, a treaty of delimitation existed setting the boundaries between the two cities Lagash and Umma and it is noteworthy that the Kings of these cities chose as arbitrator of this contest Mesilim, the King of the neighbor city of Kish.1

<sup>1S. W. King and H. R. Hall, Egypt and Western Asia, 171; M. N. Tod, Journal of Transactions of the Victoria Idshitate, XLIV, 296; Tod. Arbitration, 171.

Let me cite some extracts from this venerable document to show you how elaborate it was and how nearly, *mutatis mutandis*, it resembles our own documents of the same type.

(1) Introductory Clause.

and alliance, setting peace (and alliance) between them forever."

- (2) Historical sketch of former relations between the Hittites and Egypt. War and peace with the Hittite King Mutalla IV.

The same stipulation is repeated from the point of view of the Hittites.

Extradition of Political Refugees.

Similar clauses in the favor of the Hittites.

But once more this period of the balance of power was but of short duration. Invasions from outside weakened most of the states and this weakness was used first by the Assyrians and afterwards by the Persians to build up on the ruins of the system of states of the second part of the second millennium two subsequent enormous world-states, that of Assyria and that of Persia. Swords and arrows replaced treaties and international arbitration and during the rule of the Persians, peace reigned over the oriental world interrupted only by some expeditions against barbarians (from the point of view of the Persians) and by some internal uprisings regarded by the Persians as civil wars. The Persian world-state seemed to have decided the future of the ancient civilized world.

Let me stop for a moment at this point in the evolution of the ancient world. We may see that already the first steps in the development of international relations produced the most conspicuous forms generally used even in the modern world for the purpose of regulating these relations: diplomatic intercourse, treaties, arbitration. But can we speak for this period of any international law? Hardly. Because, as I already pointed out, international law supposes a kind of general agreement on some principles, be they of legal or of moral and religious nature. This was not the case in the oriental world. The sole deciding force was might. Of course religious sanction of the treaties appears as a constant phenomenon of the oriental treaties. And I think this religious sanction was indeed an important factor.

<sup>aThe document, engraved on stone, is preserved in Egypt. The Egyptian text, of which the above is a translation, is in turn, a translation from a Babylonian original, Babylonian being the diplomatic language of the II Millennium. Cf. Langdon and Gardiner in the Journal of Egyptian Archaeology, VI, 1920, pp. 179 and following.

lations of bourgeois-states, i. e., of all the states known to history, except the most recent bolshevist Russia, were the exponents of constant economic struggle caused by "an insufficient development of productive forces, which strive to direct towards the external world the system of violent seizure." But the task of arguing with this sect is a hopeless one, and I think that in the domain of history they have lost their campaign entirely and finally. On the question of correlation between religion (and of course morals) and economics I may quote an incidental remark of Durkheim: "It is impossible to deny that the economic factor is very primitive at the dawn of history, whereas, religious life is luxuriant and all-penetrating. How therefore could the second proceed from the first?"

But we must take into consideration that religion shows different stages in its evolution. All the oriental religions remained purely national. The gods of the different oriental monarchies were friendly to their nation only and enemies of all other nations. As long, for instance, as the Assyrian chief god, similar in this respect to our old acquaintance, "the old German God", was a sworn foe of the Egyptian Ammon and the Persian Auramazda, religious sanction had but little binding force and the decisive word was spoken by force of arms. Periods of "balance of power" were under these conditions based on correlation of armed forces and military resources only. Morals and religion had no real importance.

¹Ciccotti, La Filosofia della guerra e la guerra alla filosofia, Milano, 1905.

<sup>2Rev. Philos, XLIV (1892), 650.

V

## RELIGION AS AN INFLUENCE IN INTERNATIONAL

The new aspect of international relations in the Greek world was a result not only of another period of the balance of power in Greece, but also—and mainly—the result of great progress made in the domain of religion and morals. I have already pointed out that the Greek city-states zealously defended their political and economic independence. But this defense did not prevent them from a full recognition of their unity in respect of both nationality and civilization. The unity of the Greek world as it gradually developed, was based not on an exclusively racial, but mainly on a religious, moral and cultural foundation. The Greek world, even in its very beginnings, presented no national unity. From the Greek point of view, not every man of Greek extraction belonged to the Greek civilized world, as opposed to the barbarian; but every one was Greek who believed in the common Greek gods—the Olympians—for whom Zeus and Apollo were no mere sources of power, but creators of law and morals, for whom life outside the ordered conditions of a

The first step on this path was made when out of the ruin of petty tribal cults arose a pan-hellenic religion, the religion of the great Olympians, whose appearance both in abstract theory and as commonly portrayed was quite Greek and cosmopolitan. The statue of the Phidian Zeus and of his Athena are much more human than Egyptian and Assyrian gods, and at the same time they reflect in their superhuman, divine grandeur "the divine"—(To Theion)—in general much more than the poor symbol of the Persian Auramazda. It is no wonder that the classical images of the Olympians became so familiar to the whole civilized world and that we Christians naturally turned to the majestic model of the Phidian Zeus when we had occasion to seek an artistic symbol of the Deity. Hand in hand with this religious development went an enormous progress made by those deep thinkers, the Greek philosophers, in the domain of morals. One result of both these progresses was the recognition by all the Greeks of their religious and cultural as well as national unity. The manifestation of this recognition was the community of legal ideas in the domain of both civil and international law.

Never was the ancient world so near to surmounting the ancient belief in war as the natural condition of interstatal life as in the VI-IV century B. C. Never was it so ready to accept as normal the condition of peace between the different Greek states, a theory altogether similar to our own modern concept.

Let me deal with some of these forms more at length. They continued without change during the whole period from the VII to the III century B. C. The most important legal monuments of international relations were of course, the treaties. Greece recognized and used but one form of treaty, that of an equal treaty between two free and independent states. The Greek treaties are real Foedera aequa. Take any example you like in the book of Von Scala and you will find my statement fully confirmed. The sanction of all treaties was a religious one. The symbol of that sanction is the witness of the treaty, the supreme god, the incarnation of supreme justice—Zeus, the guardian of oaths and of good faith—(Zeus orkios kai pistios).

<sup>1Scala, Staatsverträge, p. 67, n. 83).

en to different Greek cities through different treaties concluded by them with other Greek cities. Such was, for example, the case of Teos in 193 B. C. I believe that inviolability was conceded to Teos because of its holy and famous temple.

VΙ

But the most interesting movement in Greece in the VI-IV century was the movement towards settlement of interstatal disputes and misunderstandings not by war, but by international arbitration in a peaceful way. Arbitration was highly developed in Greece at this period. We find different types of the procedure. Some cases were settled by compromise, others as the result of a special treaty, one of the clauses of which asserted as obligatory the arbitration of all disputes arising out of the treaty itself. Some neutral states, appointed on a common understanding of the litigants, were to act as arbitrators. Let me introduce a brief sketch of the history of this institution taken from the book of one of the best specialists on the subject, Marcus Niebuhr Tod (Greek International Arbitration, Oxford, 1015, P. 174-178).

"That the Greeks were accustomed to arbitration from an early period in their history, is hardly open to doubt. Even if Pausanias' story that the Messenians offered to submit to arbitration their dispute with Sparta, which led to the outbreak of the first Messenian war, be rejected as the fabrication of a later age, reflecting back into the past the procedure familiar to itself, we can scarcely call in question the substantial truth of the traditions which tell of the arbitrations between Andros and Chalcis and between Athens and Mytilene, both of which episodes belong to the VII Century, while the arbitral settlement, early in the VII Century, of the struggle waged between Athens and Megara for the possession of Salamis is assuredly historical, however much later imagination may have busied itself with embellishing the tale of Solon's ad-

"For awhile the sanguine hopes of those who looked for great results from this stipulation seemed doomed to disappointment. Time after time during the troubles which thickened on the eve of the Peloponnesian War, the Athenians appealed to the compromise clause inserted in the Thirty Years' Peace, but in vain, and before that peace had lasted half its span of years, Athens and Sparta were again at war. . . Yet this failure of arbitration to avert a disastrous war did not, as some observers may have feared at the time, sound the death-knell of the institution. It emphasized the truth that arbitration does not act automatically, that it is an instrument the efficiency of which lies in its use. Even in Sparta there were doubtless many who echoed the words of Archidamus that, since the Athenians offered arbitration in accordance with the terms of the Peace, it was contrary to the law to attack them, words which were probably recalled time and again during the long years of futile war and harassing anxiety which followed. Even those who had voted for war felt, in

In the fourth century our evidence is more scanty, yet we have some six or seven examples for the time before Alexander and the scarcity might be explained by the character of our sources. There is no Thucydides to give us the text of the more important treaties. Thus, I entirely agree with Tod that "this period was one in which the employment of arbitration was gradually spreading over the entire Greek World, and even the smaller states were becoming more familiarized with this mode of putting an end to disputes with their neighbors." From the Greek states, the habit extended even to their so-called barbarian neighbors. The most interesting case is that of the Romans and the Tarentines. "The Tarentines demanded that the Romans and Samnites should desist from their war-like preparations and submit to them the settlement of their differences." The answer of the Romans to this proposal is characteristic enough. They paid no attention to those whom they scorned as a "Vanissima gens,"—the most frivolous of peoples which, although unable to settle its own domestic revolutions and discords, thinks itself competent to dictate to others conditions of war and peace.

## VII

## DIPLOMATIC AGENTS IN ANTIQUITY

by the Greek states in other states; but such permanent embassies were, in the conditions of Greek life, both useless and almost impossible. How many embassies was a small Greek state to maintain, when there were some hundreds of independent states in Greece alone? Nevertheless, the part played by diplomatic representatives in the ancient world was important enough. It is true, there existed no professional diplomats in the Greek cities just as there existed no professional politicians. Every citizen was perfectly acquainted with the political situation and was able to carry out successfully important diplomatic missions. As a matter of fact, the popular assemblies were very careful in electing for these missions their most experienced citizens, men who possessed a good knowledge of both the actual political situation and the peculiar conditions of the state to which they were to be sent.

<sup>1Botsford, A Source-Book of Ancient History, p. 196 fol.

tion of the place where they were temporarily residing. Cicero, using of course Greek ideas, well expresses the principle of the inviolability of ambassadors, as follows: "The inviolability of ambassadors is protected both by divine and human law; they are sacred and respected so as to be inviolable not only when in an allied country, but also whenever they happen to be in the midst of the forces of enemies." (Cicero—in Verr III.)

Of the greatest interest are the measures taken by the Greek cities to protect the material interest of aliens who resided in their cities. We may notice even a kind of attempt to create some permanent representatives in foreign cities whose duties were to watch over the interests of both the city which they represented and its individual citizens. I refer to the well known institution of the proxenoi which developed out of the already mentioned relations of hospitality between individual citizens of different cities. From the V century on, the proxenoi often became official representatives of the city which gave them the rights of honorary citizenship. They were appointed for the special purpose of acting as permanent consular agents. Sometimes they assumed diplomatic duties. One of their chief functions was to guide the assemblies and to present them to the magistrates, the council and the popular assembly of their city. We must not forget, however, that the proxenoi were always citizens of the city in which they represented the interests of another city.

<sup>1Philippson, International Law and Custom of Ancient Greece and Rome, Vol. I. p. 208.

advocates to plead for him. Finally provision was usually made for the hearing of suits within a certain fixed period, so as to prevent an undue delay of justice."

Such were the achievements of the Greek World in the domain of international relations. Their main aim was gradually to transform Greece into a family of states where right worked beside force, and we must say that right did not always yield to force. Can we honestly claim more than that for our own modern conditions?

#### CONFLICT BETWEEN RIGHT AND FORCE

I have already pointed out that the Peloponnesian war interrupted the quiet development of international relations based on religion, morals, equity and law. This war undermined the foundations of international law and led the world back to the crucial dilemma;—has force to yield to right, or right to force? We cannot deny that the triumph of force over right was a result not only of the political development of the Greek World, but also of a strong intellectual current headed by the so-called sophists who sought and found theoretical proof for their thesis as to the dominating part played by force in human life. In international relations the principle was worked out as the predominance of the interests of the state over the interests of law and justice.

cydides. They will show how great was the difference between the two points of view. The Corinthians, for example, had occasion to formulate the old principle of Greek morals. It was on the eve of the great war, in 433. "Do not say to yourselves that one thing is just, but that in the event of war another thing is expedient; for the true path of expediency is the path of right... To do no wrong to a neighbor is a more certain source of power than to gain a perilous advantage under the influence of a momentary illusion." (Thucydides I, 42.) The new sophistical point of view is fully expressed in an answer given in 432 by the Athenian ambassador in reply to arguments of the Spartan magistrates similar to those of the Corinthians quoted above. It reminds us on one hand of the discussion of the same problem by the sophist Thrasymachus and Socrates in one of the dialogues of Plato (The Republic I), and on the other hand of so many proclamations and pamphlets published during the great war by the Germans.

## IX

#### PERIOD OF CONSTANT FLUX

The next stage in the political evolution of the ancient world was the reestablishment of the world-state by Alexander the Great. This was the substitution for the Persian domination of a world-domination of Greek elements united around the Macedonian state. The world-monarchy of Alexander was in no respect a new political form. Alexander preserved all the peculiarities of the Persian empire. The only change brought in by him was the substitution of a new dominating class for the old one. The Greeks and Macedonians replaced the Iranians as the ruling element. Greece remained legally free, but in fact it was simply a portion of the new world-state. Indeed, the "freedom" of Greece was strongly emphasized by the new ruler, but this freedom meant of course protection, like the freedom of the peace of Antalkides and subsequently the freedom of the peace of Flamininus. Alexander's world-empire did not last long. The disintegrating forces within the empire were too strong to maintain the artificial unity of the Greek Occident and the multi-national Orient. Alexander's empire soon fell to pieces and out of its ruin arose many powerful Graeco-Oriental states. The leading powers were—Syria, Egypt, Macedonia.

Two processes might be noticed during the so-called Hellenistic period. One led towards the reintegration of the Persian and Macedonian World-empire, while the other opposed this movement towards centralization by all means and resulted in separating from the big states new political formations, both kingdoms and city-states: Pergamon, Bithynia, Galatia, Pontus, Cappadocia, Commagene, Armenia, Parthia, on one side and Rhodes, Sparta, Athens, and the Achean, Aetolian and Lycian federations on the other. Thus there once more reappeared the balance of power which lasted this time about two centuries and which was as creative in the field of international relations as had been the earlier balances of power,—that of the second millennium B. C. and that of the Greek city-states of the VI-IV century B. C. Diplomatic relations were lively and constant. Never before was exchange of embassies and special envoys so regular and the matters discussed by them so complicated. Never before

The most important process during this period was that of a gradual formation of a world civil law, of a *Reichsrecht* or *Jus Gentium*. The extreme mixture of races in all the new states, the constant emigration from one centre to another, the numerous colonies of "foreigners" in all the Hellenistic states like the Jewish colonies in Egypt, Asia Minor and Greece, called imperatively for the creation of a system of law equally intelligible to all the constituent parts of the cosmopolitan states of this epoch. An intensive world-commerce everywhere required standards calculated to facilitate commercial relations and based on generally accepted principles.

The main outline of this new international law was taken from Athens, whose world-commerce preceded that of the Hellenistic epoch. The different codes of laws published in different countries were practically all based on the Athenian laws. Just as in matters of language, a kind of juridical common agreement (Koiné) guided the decisions of the different courts which acted in different countries. This enormous work was not carried out to the extent of formulating an international civil law, but it went far enough to enable Rome during the period of her world-domination to build up her system of world-civil law on a basis of equal application throughout the constituent parts of the Roman Empire.

Rhodes, which acted in this respect as a kind of mandatory of all the Hellenistic powers interested in the safety of the seas and in an undisturbed maritime commerce.1

X

#### THE ROMAN THEORY OF INTERNATIONAL RELATIONS

The difference between Greece and Rome as regards international relations found an adequate expression in the utterly different treatment by Greece and Rome of international treaties which formed the basis of international relations in both countries. The Roman treaty was never a treaty which contented itself with restoring peace between herself and another state, that is, their previous normal relations. Rome's treaties always created one or another kind of perpetual relation between the two parties, either of friendship or of alliance. Both of these relations were certain to give rise to a definite legal status between the two states. Of course, originally these legal relations were elaborated on a basis of equality, and the form of the Roman treaty is that of an equal treaty (foedus aequum) between independent states. But gradually, by means of clauses added to the body of the treaty, the treaty of friendship became transformed into a treaty which effected vassalage, the treaty of alliance into a treaty of dependence. Both forms of treaties were, of course, intended to last an indefinite time. Thus it came about that Rome did not know treaties limited in time, but only treaties of supposedly unlimited duration.

tions we have no connection of friendship or hospitality and no treaty concluded in order to establish friendship, the men of these nations are not our enemies (hostes) (a concession to Greek ideas) but if anything belonging to us happens to come into their possession, it becomes their own and a free man of ours taken captive becomes their slave; the same in the case of anything belonging to them if it comes into our hands."

It was thus that Rome created her world-state. But we must not forget that this state was built up by incorporating in it all the Hellenized parts of the ancient world and that the western parts of it were shaped according to Greek models. In the internal structure of her world-state Rome introduced many principles which had been evoked in the international law of the Greeks, for the Roman world-state was an international state. Moreover, Rome brought to a point of realization many Greek aspirations which could never have been accomplished by the Greek World. Common peace became a reality, likewise a world system of civil law.

It is evident that even after having established her world empire Rome had to deal with neighbors, both in time of war and in time of peace. Therefore diplomatic relations with them never ceased to exist. But from the point of view of international law, Rome never recognized the legal existence of the German or Iranian states. She never treated them as her equals.

'One of the most interesting institutions of this epoch is the corps of diplomatic interpreters, the forerunners of our "dragomans" in Oriental countries. Cf. J. Snellmann, De Interpretitus Romanorum, Leipzig, 1920.

"I extended the frontiers of all the Roman provinces which are bordered by peoples not subject to our dominion." After having enumerated these conquests of his, he proceeds: "To me there were often sent embassies from India, such as had never been seen by any one of the Roman commanders. Our friendship was besought by embassies of the Bastarmians and Scythians, of the kings of the Sarmatians, who dwell beyond the Tanais and further to the east, of the kings of the Albanians, as well as by emissaries of the kings of the Iberians and the Medes." . . . "To me, Phraates, the son of Orodes, sent all his sons and grandsons, although not vanquished in war, but in order to ask our friendship by giving us his sons as hostages. During the time I held the office of princeps, peoples that had never before had any exchange of embassies and friendship with us were acquainted with the good faith (fides) of the Roman people."

The words of Augustus in which the Roman conception of her supremacy over the world were so proudly expressed became a kind of gospel for his successors. The Roman theory which did not recognize any equals to the Empire,—the only "legal" world-state,—remained unchanged as long as that empire endured.

Such are the essential features of the development of international relations in the ancient world. Like our own, they very often change their aspect. Antiquity had its epochs of creative work and its periods of stagnation and decay. But some fundamental concepts and some general ideas, once accepted, were never forgotten. Although apparently the modern world began its evolution in somewhat primitive conditions, we must not forget that these conditions had as their foundation all the most important ideas of the ancient world, and, first of all, the Pax Romana and the common Christian faith.

MICHAEL ROSTOVTSEFF.

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### MEDIEVAL DIPLOMACY

T

#### THE MEDIEVAL HERITAGE

In spite of calumny against the Middle Ages on the part of a past generation of modern historians and in the teeth of the resultant popular prejudice nowadays against the very word "medieval," there has been in the last century an ever-growing appreciation among scholars of the vast debt which we moderns owe to the Middle Age. The Middle Age is the bridge between the Roman Empire of antiquity and the national states of modern times. It is the medium through which antique culture has been transmitted to our contemporary world. Nay, more; it is the living organism in which have germinated and developed the cardinal institutions and customs of the present day. In a real sense the Middle Age is the mother of modernity.

We moderns usually admit, since the time of Chateaubriand and Schlegel and Ozanam, that the artistic and romantic heritage of the Middle Age has been considerable—Gothic architecture, illuminated manuscripts, tapestries and embroideries, the songs of the troubadours, the paintings of a Giotto, the poems of a Dante. But this is only one aspect of what present-day scholars recognize as our debt to the Middle Age. Mr. Rashdall has attributed to it the genesis of our ideas of university-organization and university-education. Dr. James J. Walsh has ascribed to it the patronage of experimental science and remarkable progress in astronomy, engineering, and medicine. The late Professor Maitland emphasized the medieval character of the English common law and administrative pro-

As the Middle Age progressed the worst of these features of localism tended to disappear. The Teutons were gradually civilized; feudalism was slowly subjected to a central political authority; and private warfare was curbed. Yet so ingrained was the spirit of provincialism in the hearts and minds of medieval men generally from the fifth to the fifteenth centuries that these later achievements paved the way not for the restoration of universal empire and universal peace, but for the establishment of sovereign national states on the basis of the tribal kingdoms and for the development of a regular system of international relationships, not least notable among which was the relationship of war.

### II

Politically Europe was divided during the greater part of the Middle Age into two Empires—the Byzantine and the Holy Roman—and a large number of tribal kingdoms. Socially during the same period Europe was subdivided into principalities and baronies—the estates of feudal nobles. If these divisions and subdivisions are viewed as centrifugal forces in Christendom, the Papacy and the Catholic Christian Church which it represented and for which it authoritatively spoke, must be considered as a counterbalancing centripetal force. All Christendom continued to look to Rome as the centre of world unity, albeit now it was the Rome of the popes rather than the Rome of the emperors.

The words of Christ to Saint Peter and the tradition of the popes as bishops of Rome and successors to the Prince of the Apostles would suffice to explain why the papacy was generally recognized and honored as the religious and moral head of Christendom. But apart from strictly religious and theological considerations, the influence of the papacy was undoubtedly strengthened by a curious political and territorial situation. It so happened that the only state in the Middle Age which had direct continuity with the ancient Roman Empire was that commonly known as the Byzantine Empire, with its capital at Constantinople; and Rome was so far away from Constantinople and so separated from it by restless Teutonic tribes that the Byzantine emperors were never able to subject the popes to their political sway. The result was that fairly early the bishops of Rome came to exercise political, as well as strictly ecclesiastical, power in central Italy. Moreover, the reestablishment of an empire in the West, whether of Charlemagne or of Otto the Great, was effected by papal action. And when it is borne in mind that most of the Teutonic tribesmen were converted to Christianity by missionaries despatched from Rome, and

It was, in fact, the Catholic Church which laid and blessed the corner-stone of modern international law. A famous Spanish churchman early in the seventh century, Saint Isidore, archbishop of Seville, in his great encyclopedic work popularly called "The Etymologies" reserves the term ius gentium for what we should now describe as international law, so that here for the first time we find that term fairly translatable by "law of nations." All the remaining matter of the ius gentium of the Roman jurists, namely, the law common to all nations (ius commune omnium nationum), he incorporates in ius naturale. In other words, Isidore of Seville distinguishes clearly between the ius naturale and the ius gentium. The latter, he says, has to do with "the occupation of territory, the building and fortification of cities and castles, wars, captivities, enslavements, the recovery of rights of postliminy, treaties of peace and others, the scruple which protects ambassadors from violence, and prohibitions of marriage between persons of different nationality."

of excommunication, every act of private warfare or violence against ecclesiastical buildings and their environs, and against certain classes of persons, such as clerics, pilgrims, merchants, women and peasants and against cattle and agricultural implements. The pax ecclesiae speedily spread throughout France and Burgundy, and diocesan leagues began to be organized for its maintenance. The bishop or count on whose lands the peace was violated was vested with judicial authority, and was directed, in case he was himself unable to execute sentence, to summon to his assistance the laymen and even the clerics of the diocese, all of whom were required to take a solemn oath to observe and enforce the peace.

#### III

#### THE TRUCE OF GOD, CHIVALRY, PAPAL AMBASSADORS

A most interesting supplement to the pax ecclesiae was provided in the eleventh century by the formulation of what is known as the Truce of God. In 1027 at the call of their bishop a synod of local clergy and laity met in the country of Roussillon, in the Pyrenees, and agreed that no man should assail another on the Lord's Day. In 1040 a larger assembly of prelates and nobles, under the presidency of the archbishop of Narbonne, extended the truce from the Wednesday evening to the Monday morning of every week, as well as during the seasons of Lent and Advent, the three vigils and feasts of the Blessed Virgin and those of the Twelve Apostles and a few other saints. The Truce of God in this form was decreed for Flanders in 1063, was introduced into Germany in 1082, and was instituted in southern Italy in 1089. In 1095 Pope Urban II decreed it for all Christendom, adding a guarantee of safety to all who might take refuge at a wayside cross or at the plough. The Truce of God was reaffirmed by many councils, such as that held at Rheims

1123, 1139, and 1179.

Of the pax ecclesiae in general, and of the Truce of God in particular, the direct results were disappointing. For not only was the diocesan militia always very imperfect, but feudal society, so long as it retained political power, was inherently hostile to the principle and practice of private peace. The indirect results, however, cannot be overestimated. For what in this sphere the Church failed to do itself, it eventually inspired the rulers of the several states to do, and "ecclesiastical peace" proved to be the forerunner and prerequisite to "royal peace." The provisions of the Truce of God were often incorporated verbatim in municipal and district statutes, such as the laws of Barcelona (1067). In 1085 Henry IV approved the extension of the truce to the Holy Roman Empire, and in the following century imperial laws prohibited private warfare altogether. In 1257 Saint Louis forbade all private wars in his French lands.

### τv

Midway in the Middle Age—let us say in the twelfth century—one might have been justified in concluding, from what has been said, that a most promising international society was taking form under the auspices of the Catholic Christian Church. Tribes were becoming crystallized into nations. Nations were becoming consolidated as independent and sovereign states under kings. The kings, in concert with the ecclesiastical authorities, were building up, within their respective dominions, a system of law and justice, and were curbing private welfare. Among the new states, moreover, commercial and diplomatic intercourse was developing, and already there existed the embryo of an international federation, a league of free Christian nations. For such a league the groundwork was prepared in the community of national interests provided by the common Catholic faith and by the universal similarity of institutions and methods throughout Christendom, in the great co-operative enterprise of the Crusades, and in the growing practice of submitting international disputes to papal arbitration.

It is, from my standpoint, a tragedy of the Middle Age that on this groundwork no superstructure of an effective international league was reared. The tragedy, as I conceive it, or the simple failure, as we can all agree to call it, may be explained fairly easily. It is traceable to three major facts.

tribesmen. But such was not the commission which the Catholic Church received from its Divine Founder. Under the circumstances it is astonishing that the contributions of the Church and the Papacy to international relations and diplomacy were as great and lasting as they were, rather than that they were not greater still. When one recalls the primitive and warlike nature of the European peoples with whom the Church had to deal at the beginning of the Middle Age, and when one remembers that throughout the whole period there were no railways or steamships or telegraphs or telephones and only a few good roads and a most imperfect postal system, one can appreciate how miraculous would have been the creation at that time of an effective League of Nations. That sort of miracle did not occur, even in an age of faith.

In general contention for the new imperial claims as against those of the pope or of the national monarchs, many celebrated medievalists employed tongue and pen. Among their number were Dante (1265-1321), Marsilius of Padua (c. 1270-c. 1342), and William of Ockham (c. 1280-c. 1349). The Church and the Papacy did not lack defenders, but the ecclesiastical champions, such as Bernard of Clairvaux (1090-1153), Augustinus Triumphus (d. 1328), and Aegidius Romanus (c. 1247-1316), were so obsessed by the controversial spirit that sometimes they grossly overstated papal ambitions. But it was in action as well as in words that the struggle between popes and emperors was joined. Developing under Pope Gregory VII in the eleventh century, it raged almost continuously during the twelfth and thirteenth centuries and far into the fourteenth. An Innocent III, a Boniface VIII, and a John XXII, labored to secure a vast theocratic federation on the one hand, while on the other a Henry VI, a Frederick II, and a Louis IV, endeavored by every means at their disposal to erect a world-dominion to which church and nations alike would be subjected.

The Emperors failed dismally in their conflict with the Popes. Thanks to ecclesiastical opposition, Europe was saved from a return to Caesarism; and the Holy Roman Empire endured only as a shadowy bond of union for the German nation. But the Papacy had to pay dearly for its victory. It had to pay with exile from Rome, with the "captivity" at Avignon from 1309 to 1377, with a great schism from 1378 to 1417, and with resulting loss of influence and prestige. And the protracted struggle between emperors and popes powerfully aided the city-states of Italy and the national states of western Europe to consolidate each its own power, and to repudiate not only any world-dominion on the part of a Holy Roman Empire, but any theocratic federation of Christendom which the Catholic Church might champion.

of absolutism was approaching.

were to be undertaken for the greater glory of France. This is fierce nationalism; this is rampant imperialism. It is essentially modern, not medieval.

### V

#### EVOLUTION OF PROFESSIONAL DIPLOMACY

ຝ at Genoa, in 1455, by Francesco Sforza, duke of Milan. Thenceforth a regular diplomatic service developed rapidly throughout Christendom. For example, in 1460, the duke of Savoy sent a permanent envoy to the papal court; in 1494 Milan is already represented by a permanent ambassador at the French court; and in 1496, Venice is similarly represented both in England and at the court of the Emperor Maximilian.

The art of diplomacy, developed by Venice and other Italian cities in the later middle ages, was eagerly seized upon by those monarchs of western Europe who were zeal-ously undertaking, at the close of the fifteenth century and the beginning of the sixteenth, to consolidate and aggrandize their national states—Louis XI of France, Henry VII of England, and Ferdinand and Isabella of Spain. These monarchs practiced statecraft unburdened by the weight of too many conscientious scruples. By hook or by crook they willed to increase their personal power and to extend the frontiers of their states. If diplomacy failed them, they went to war. If they were unsuccessful in war, they resorted to diplomacy. And whether in war or in diplomacy, the first instrument was stratagem and dissimulation. "To reign is to dissimulate," was the principle laid down by Louis XI, and in sending ambassadors to the dukes of Guyenne and Brittany the French king's instructions were, "If they lie to you, lie still more to them."

with Mohammedan Turks, and who was the first monarch to establish a completely organized diplomatic machinery, did most to give Machiavelli's principles a European extension. By the close of the sixteenth century diplomacy had become frankly "Machiavellian." Despite ecclesiastical protests, "Machiavellian" was generally admitted in theory as well as in practice. Etienne Dolet, who was burned for atheism in 1546, in his De officio legati (1541), advises ambassadors to surround themselves with close-mouthed servants, to employ vigilant spies, and to set afoot all manner of fictions, especially when negotiating with the papal court or with the Italian princes. Germonious, archbishop of Tarantaise, another precursor of Grotius, in his De legatis principum et populorum (1627), after a vigorous denunciation of lying in general, argues that special lies are permissible for the safety or convenience of princes.

The Protestant Revolution of the sixteenth century and the consequent disruption of Christendom split and weakened the one force which might possibly have offered resistance to rampant nationalism, greedy imperialism, and immoral diplomacy. With the revolt of northern Europe against the Papacy and the Catholic Church, the last bulwark of medieval internationalism went down in ruins, and there arose full-grown in its stead the state-system of modern Europe with all its faults and all its vices. The events of the fifteenth and sixteenth centuries brought into bold relief the truth, as Mr. David Jayne Hill puts it, "that, as in the constitution of single states the dissolution of monarchy presents no other alternative than anarchy or self-government, so in the relations of independent sovereignties, war and diplomacy become the inevitable substitutes for empire" (Hill, 1158). When the Holy Roman Empire failed to exercise a general secular dominion, as it failed in the fourteenth century, and when the Papacy was no longer universally recognized as a tribunal of last resort, as befell in the sixteenth century,

<sup>1For discussion of Grotius, see Appendix.

CARLTON J. H. HAYES.

# The Development of Modern Diplomacy

## THE DEVELOPMENT OF MODERN DIPLOMACY

T

We are all more or less familiar with Sir Henry Wotton's definition of an ambassador as "an honest man, sent to lie abroad for the good of his country." This famous jest, looked upon as an indiscreet revelation of the truth, was written by the British Ambassador to Venice, in an album of a friend, in the Year of Grace 1604. It cost the witty diplomat his post, and has tended not a little to the discredit of diplomacy.

The ambassador does not stand or "lie" alone, as Wotton would no doubt have put it. "To lie like a physician" is a well-known charge in Latin as well as in English, and we of the law are frequently reminded of the epitaph intended no doubt as a compliment in a special case, but applied generally and humorously to a class: "Here lies an honest lawyer". The doctor and the lawyer may object to the company which the proverb makes them keep. The ambassador, however, given the suspicion in which he is held, may well be content to associate upon a footing of equality with these worthies, for in the popular mind he is and always has been primus inter pares.

the natural course of things we can not expect water to rise above its level. It is better, although harder, to disinfect the source than to criticise the stream.

We are attracted by virtues or defects, particularly the latter, that strike the eye of the careless observer. Most of us do not take the time or the trouble to look below the surface of things. An ambassador, we say, is a useless sort of person because, like the mole, he works in the dark, or more elegantly expressed, his usefulness is hidden from the public eye. Truth is not in him, we are inclined to add, because betimes acting under instructions from his superiors, or with their approval, he goes beyond the truth, is found out and is taxed with a lie. Of course such conduct can not be justified, and yet, as long as we permit two standards of conduct—one for the State and one for the individual—we need not be surprised if a public servant, in what he conceives to be the interest of his country, will permit himself to do and to say what no amount of pressure or profit would force him to do or to say as an individual. It is not long since that a distinguished statesman, one Bismarck by name, forged a telegram to produce a war, boasted of it in his lifetime and stated the circumstances in his Memoirs, to be published after his death.

Some say that an ambassador is an idle, frivolous person, to whom trifles are the serious things of life, because in times past he has been over-mindful of his dress and of his personal appearance, has been a stickler for precedence, and has been ostentatious beyond the standard of his critics. These are matters of form, not of substance. They are trifles in themselves, but they are not little things when States are concerned. Precedence claimed by one whose qualities do not entitle him to it is indeed foolish; precedence to the same person as the representative of a State is a different matter. In this day and generation, men of breeding give to women the place of honor, but the President of the United States and every diplomatic representative in the City of Washington assumes the

#### TT

#### TRUE FUNCTIONS OF DIPLOMATS AND DIPLOMACY

The truth is, the diplomat is a necessity, he is not merely an ornament, if there is to be more than one State in the world. The State, being an artificial person, can not communicate of itself with another State. It speaks by the mouth of an agent. Two States existing must come into contact. The relations external to themselves are foreign; they are international relations. And there are not two, there are many States. When intercourse was the exception, not the rule, an agent, whether he be called an ambassador or a minister, could be sent for the special occasion. When the States became numerous and their contact frequent, embassies or missions were correspondingly frequent. When it was recognized that an ambassador or a minister residing within a country permanently or for an indefinite period of time, might prevent the disputes which special missions were sent to adjust, nations began to appoint ambassadors or ministers to reside permanently in those countries with which they had most frequent intercourse. The Church was first drawn upon, as its members possessed the qualities required; then law-

yers, in an age in which the Church was less powerful, and the relations of nations were determined according to rules of law. We thus have a class, and, the class justifying itself, we have a profession, so that today every State recognized as a member of the Society of Nations, has a diplomatic service. In the older States it is a career; in the younger States appointments are frequently made from the outside, and even in the other States, they are sometimes so made. And there will be a diplomatic service notwithstanding the fact that the minister of foreign affairs directs foreign relations and in many instances conducts them, and notwithstanding the annihilation of distance through the telegraph, and the telephone, as long as men transact their business by word of mouth and face to face. The method of conducting foreign relations may change; it has changed to meet changing conditions, but the trained man with the trained mind, in open as in secret diplomacy, in democracies as in other forms of government, will be needed, and if we are wise, will be employed and prized.

## III.

#### THE MODERN STATE SYSTEM AND THE LAW OF STATES

gress of Westphalia. The law of nations slowly came into being during the same period, because, as the law of States, it pre-supposes their existence, and the modern law of nations was recognized at approximately the same time in the form and shape given to it by Grotius in "The Law of War and Peace" published in 1625, that is to say, during the Thirty Years' War which the Congress of Westphalia ended.

There could be no States in the modern sense of the term when the Holy Roman Empire, which has been wittily said to have been neither holy nor Roman, claimed not merely the first place, but that all States were subordinate to and dependent upon it. There could be no States in the modern sense of the term when a great spiritual organization claimed supremacy not merely in matters spiritual, but in material matters as well. Out of the conflict of these two great organizations, and from the inconsistent claims of the States of the then world, taking sides and changing sides as their interest dictated, the modern State emerged. By the Treaty of Westphalia, or of Munster (the Catholic powers negotiated at Munster—the Protestant at Westphalia, two cities some fifty miles apart, but signed the same 24th day of October, 1648) the new order of things was recognized.

<sup>1For discussion of Grotius, see Appendix.

With the conflicting claims to supremacy, lay or spiritual, law was impossible, because the superior could prescribe the rule of conduct which we call law, for the inferior States according to its pleasure. The inferior States might have been equal in the sense of the Roman Law which truly and brutally says that "slaves are equal among themselves"; but they would not and could not have been equal with their superiors, and the fundamental principle of international law is the equality of right of every State with territory large or small, with a population large or small, under a government of its own choice. This law grew with and as the State; and the system of law, like the system of States, came into being approximately at one and the same time. We date both from Westphalia.

is inevitable, unless States are organized upon some other method than power. They can only escape from it by some organization upon a different principle. We would have had the theory and practice of the balance of power in this Western World of ours had not the representatives of the States in conference assembled at Philadelphia, in 1787, rejected size, rejected power, and formed the Union of States upon principles of justice, with appropriate agencies for its administration. Before the law all men are equal; before the law all States are equal. In the domain of justice there is neither large nor small, powerful nor weak. There are only equals in right, equals in duty, and the rights and duties are not determined by the sword, but weighed in the balance of justice. Will the world ever take America seriously?

#### IV.

#### THE BALANCE OF POWER—ITS NATURE AND APPLICATION

If the world consisted of but a single State, there would be no external questions and there would be no question of the balance of power. If the world were composed of two States, they would have disputes, but they would not dispute as to the balance of power. If there were three States coming into contact, they might and they would. With every addition to the States, the balance of power would become more pressing and more complex. Alliances would be formed to maintain it, war would be made to re-create it. The principle is apparently as old as the first three States.

What is this principle and how is it applied? Let Hume answer the question. In his Essays—Moral, Political, and Literary, published in 1752, he speaks of the balance of power, asking "whether the idea of the balance of power be owing entirely to modern policy, or whether the phrase only has been invented in these later ages?" The answer which he gives, supported by an unfortunate

In all the politics of Greece, the anxiety, with regard to the balance of power, is apparent, and is expressly pointed out to us, even by the ancient historians. Thucydides represents the league, which was formed against Athens, and which produced the Peloponnesian was, as entirely owing to this principle. And after the decline of Athens, when the Thebans and Lacedemonians disputed for sovereignty, we find, that the Athenians (as well as many other republics) always threw themselves into the lighter scale, and endeavoured to preserve the balance. They supported Thebes against Sparta, till the great victory gained by Epaminondas at Leuctra; after which they immediately went over to the conquered, from generosity, as they pretended, but in reality from their jealousy of the conquerors.

Carthaginians during the war of the auxiliaries:

The situation was simple. The Spanish monarch did not want the dismemberment of Spain. Louis XIV wanted Spain for a descendant and was more than willing to accept for himself certain portions of the inheritance. Europe was as unwilling to have the Crowns of France and Spain united as it had been to have the Crowns of Austria and Spain united on the same head. To prevent this a Treaty of Partition proposed by Louis XIV was signed at The Hague in 1698, between France and the then maritime Powers, England and Holland, by which, to quote Mr. Wheaton, "Spain, the Indies, Belgium and Sardinia were assigned to the electoral prince of Bavaria; the kingdom of Naples and Sicily, the Spanish places and islands upon the coasts of Tuscany, the marquisate of Final, and the province of Guipuzcoa, to the Dauphin of France; and the Milanese to the Archduke Charles."

The King of Spain, Charles II, resented this attempt to dispose of his dominions while he was still living, and made a will by which he appointed the Electoral Prince of Bavaria his universal heir, hoping to preserve the integrity of the Spanish monarchy at the expense of the German branch of his own house. However, the Prince of Bavaria died, upsetting the plans alike of France, England, and Holland on one hand, and Charles II of Spain, on the other. Therefore, a second Treaty of Partition between the same parties was concluded in 1700, by which the Archduke Charles was substituted for the Prince of Bavaria who had previously died, in the inheritance of Spain, the Indies, Belgium and Sardinia. The Dauphin of France received the spoils under the first treaty, to which were added for good, or rather for better measure, the duchies of Lorraine and Bar. But Charles II of Spain was again dissatisfied and for the same reasons. He therefore made a second will, this time in favor of the Duke d'Anjou, grandson of Louis XIV and grandson of his own daughter, Maria Theresa. Charles II had no male heirs, hence the treaties of the European Powers, hence his own testaments.

But again the unexpected happened. The Holy Roman Emperor Joseph I died without male heirs, and his brother, the Archduke Charles, succeeded him. If the second Treaty of Partition should stand, the German branch of

the House of Hapsburg would unite Austria, the Empire, and the Spanish dominions under his scepter. The result of it all was a change of front, the Partitioners accepting as the lesser of the two evils, the grandson as the King of Spain, with, however, the express provision that the Crown of Spain should never be united to that of France. Louis XIV had been so worsted in the war that he was glad in his old age to accept and to retain the kingdom of France, somewhat enlarged indeed by his previous conquests, but shorn of the conquests which he had hoped to make. The Spain of the grandson likewise suffered. Belgium, Milan and Naples were severed from the Spanish monarch and settled upon the house of Austria.

"The peace of Utrecht," Mr. Wheaton says, "was for France what that of Munster had been for the house of Austria." It was unfortunate for France, perhaps it was unfortunate for the world, that Louis XIV accepted the throne of Spain for his grandson, instead of contenting himself with the spoils of Partition which the Powers of the day were willing to accord him. The French historian, Mignet, with whom impartiality was a religion, with accuracy as a necessary consequence, has shown in the introduction to his edition of the Documents Relating to the Spanish Succession, that Louis XIV not only violated the faith of treaties in accepting the Crown of Spain for his grandson, but that he departed from all sound rules of policy. "Louis XIV had," to quote Mignet, "to choose between a Crown for his grandson or an aggrandizement of his domains maintained by Europe; between the expansion of his system in the Pyrenees and the Alps by the establishment of a branch of his house in Spain and in Italy, and an expansion of his own proper Power; between the honor of the royalty and the advantage of his kingdom; between his family and France."

of Utrecht were renewed and confirmed in every successive treaty of peace between the great continental and maritime powers until the Peace of Luneville, in 1800. It was omitted for the first time in the Peace of Amiens, concluded in 1803, when a new and a greater sun had arisen upon the political firmament.

Such is the practice of Europe. What was the theory by which it was justified? Let one of the greatest masters of international law answer the question, just as an appeal has been made to Hume, a noted philosopher.

In his Law of Nations, published in 1758, Vattel has

this to say:

It is asked whether the aggrandizement of a neighboring State, in consequence of which a Nation fears that it will one day be oppressed, is a sufficient ground for making war upon it; whether a Nation can with justice take up arms to resist the growing power of that State, or to weaken the State, with the sole object of protecting itself from the dangers with which weak States are almost always threatened from an overpowerful one.

ther, saying:

He next puts the pertinent question which is indeed the

crux of the matter: "Are we to delay averting our destruction until it has become inevitable?" And in this connection he refers to a familiar illustration:

Had Charles II, King of Spain, instead of settling the succession upon the Duke of Anjou, appointed Louis XIV himself as heir, had he thus tamely suffered the union of the House of Spain to that of France, it would have meant, according to all the rules of human foresight, nothing less than delivering all Europe into servitude, or at least putting it in a most precarious condition.

#### He next asks:

Vattel now speaks as a man "who seeks at all times to unite justice with prudence," and resolves the doubts which he has raised in the series of questions which he has put; he supposes that the powerful State is both just and prudent in its conduct, and he asks if, under such circumstances, we should idly look upon its rapid increase of power and lay ourselves open to the designs which it may seek to realize.

However, Vattel as a lover of justice and prudence

"There are gentler means, which are always lawful. The most efficacious of these is an alliance of other less

powerful sovereigns, who, by uniting their forces, are enabled to counterbalance the sovereign who excites their alarm." This could be accepted by all the states

of his day.

"This," he adds, "is what has given rise to the wellknown principle of the balance of power, by which is meant an arrangement of affairs so that no State shall be in a position to have absolute mastery and dominate over

the others."

To maintain the balance, "no State should be much superior to the others", and "all the States, or at least the larger part, should be about equal in strength." How can the balance be preserved? As it was impossible, he recognized, to trim the States so that they would be approximately equal, nations would have to rely upon alliances—the method of Europe, he said, "at the present day", or a method soon to be tried, and now again on trial. "Confederations would", in his opinion, "be a sure means of preserving the balance of power and thus maintaining the liberty of nations, if all sovereigns were constantly aware of their true interests, and if they regulated their policy according to the welfare of the State."

This may be said to be the language of the theorist, although Vattel was a diplomat by profession, speaking from experience and with a knowledge of practice. However, Count Kaunitz, Chancellor of Austria, was certainly a man of affairs and in his circular note of July 17, 1791, he advocated that the Powers make common cause against the French Revolution for the purpose of

$\\mathbf{v}$

tablish on clear principles the prescriptions of the rights of nations."

Mr. W. A. Phillips, a leading authority on this subject, and whose masterly work on the "Confederation of Europe" issued in the first month of 1914, was at the disposal of statesmen of that day, says:

history of the diplomacy of this period, however, a clear distinction must be drawn between the Holy Alliance and the Grand or Quadruple (Quintuple) Alliance. The Grand Alliance was established on definite treaties concluded for definite purposes, of which the chief was the preservation of peace on the basis of the territorial settlement of 1815. The Holy Alliance was a general treaty—hardly indeed a treaty at all—which bound its signatories to act on certain vague principles for no well-defined end; and in its essence it was so far from necessarily reactionary that the emperor Alexander at one time declared that it involved the grant of liberal constitutions by princes to their subjects. Its main significance was due to the persistent efforts of the Czar to make it the basis of the "universal union" or general confederation of Europe, which he wished to substitute for the actual committee of the great powers, efforts which were frustrated by the vigorous diplomacy of Castlereagh, acting as the mouthpiece of the British government."

We have just emerged from a great war, in which the most powerful of European States—certainly from the military point of view the most powerful State of the world—deliberately attempted to impose its domination, its culture, its conception of liberty, upon the rest of the world. This war had been foreseen. To the Triple Alliance, which included Germany, its satellite, Austria-Hungary, and its questionable ally, Italy, three other Powers, France, Great Britain and Russia, opposed the Triple Entente. The assassination of the heir apparent to the throne of Austria-Hungary and his morganatic wife by a subject of that monarchy, although of Serbian race, led Austria-Hungary to incriminate Serbia, and alleging a lack of compliance with an ultimatum demanding an acceptance within forty-eight hours, Austria-Hungary declared war against Serbia on July 28, 1914, although that little country offered to submit the outstanding dispute to arbitration. Russia espoused the cause of its Slav neighbor; Germany appeared in shining armor at the side of its ally, and declared war against Russia on the

"Who knows," said Duruy, writing in 1873, when his devoted country lay prostrate at the feet of Bismarck, "who knows but that the broken sword, left in our hands after a sudden misfortune, may not one day be required to defend universal liberty against brutal ambitions?" And, "France has at least," he added, "the right to remember that she succeeded three times in arresting or breaking a menacing power, that of Charles V, of Philip II, and of Ferdinand of Austria."

An armistice was accorded Germany at her own request on November 11, 1918, and the world is slowly emerging from the shadow of German domination.

The power of Prussia has indeed been broken. How is the balance of power to be restored and maintained? The Conference at Paris proposed a League of Nations which at present seems to be a military and economic alliance of the four Great Powers. Will it succeed? Posterity alone can tell.

## VI

### THE CONTENT OF MODERN DIPLOMACY

"Now that is an intolerable doctrine, which some authorities have handed down, that by the Law of Nations arms may rightly be taken up in order to weaken a power which is increasing and which, if increased too much, might inflict injury. I confess that in a deliberation about war this may also come into

In these words, a great Dutchman, whose name is familiar to us in its Latinized form of "Grotius", pays his respects to the principle of the balance of power, and to it opposes a principle which, although not so popular, is, nevertheless, making its way in the world.

#### VII

#### ARBITRATION—DEFINITION AND HISTORICAL APPLICATION

series of wars, from which Great Britain was to emerge as the strongest of nations. And the strength of Great Britain has not declined, for in our own day, with our own eyes, we have seen it with its back to the wall, emerge from a desperate conflict stronger than ever. It is a fact that of all countries, Great Britain has to its credit more arbitrations than any other nation. The United States may have been weak in 1794, when it proposed that Great Britain and the United States should arbitrate their outstanding differences. It has grown with the years, and in its strength, as well as in the days of its weakness, it stands for arbitration, and, with the exception of Great Britain, has more arbitrations to its credit than any other nation. These two together made modern arbitration; they have been its chief practitioners, and the world has been the beneficiary. Therefore, it is not fair to say that only weak nations desire arbitration, although that would be a sufficient justification for it.

Cantons". An award was rendered by the Commissioners, and under the 30th article of the same treaty, losses of the East and West India Companies were settled in the same manner. It is worth while noting, in passing, that in those days Holland was very far from a "weak" country.

It would be a waste of time to speculate what might have happened if the views of that great man had dominated the conduct of nations,—less interesting perhaps, but certainly as useless as Pascal's statement to the effect that "If the nose of Cleopatra had been shorter, the

## VIII.

## INTERNATIONAL CONFERENCES, THE IDEAL OF SIMON BOLIVAR

To quote again the first expounder, if not the father of International Law, our friend Grotius, who says in his book on *The Law of Nations*, published in 1625, during the Thirty Years War:

<sup>1For discussion of Grotius, see Appendix.

interested; and in which measures may be taken to compel the parties to accept peace on equitable terms."

ture according to what would be considered just and fair. There have, unfortunately, been very few gatherings of this nature, in accordance with the spirit of his proposal. The best example was but of yesterday, when, in 1884, a conference of interested Powers met at Berlin, under Bismarck's presidency, to settle the disputes between Powers claiming African territory, laid down rules of conduct for such Powers, and provided for their peaceful settlement. This Conference proved that the idea of Grotius was not Utopian, and it is perhaps not too much to say that it has kept the peace in Africa which might have been broken, and given rise to wars, as was the case for generations in the recently discovered and thinly settled tracts of America.

However, the idea which Grotius may have had in mind was more clearly expressed and brought to the attention of thinking people by one who was not, like Grotius, a writer on international law and a master of international relations. He had not held, as Grotius, the post of an Ambassador. This obscure person was from the New World. His voice was the voice of the New World; his spirit was of the New World. He was the mouthpiece of the new diplomacy and he proposed the conferences of nations to be held in time of peace, to preserve peace—to take from the large domain of justice, its principles, and to state them in rules of law for the conduct of nations. His plan has been tried and found workable, although perhaps those who called into being the conference which he advocated were unconscious that such a man as William Ladd ever lived.

What was the plan? The precedent which caused Ladd to propose his plan was American. Simon Bolivar, the Liberator of South America, as he is called, proposed a meeting of the Latin-American States, hardly out of the cradle. The meeting of their representatives was to be held at Panama. The United States was invited, and, after much controversy, our participation in the conference was authorized, but our delegates were appointed

when it was too late. The conference failed. From the Panama incident, "The inference to be deduced," Mr. Ladd said, "is, that the governments of Christendom are willing to send delegates to any such Congress, whenever it shall be called by a respectable state, well established in its own government, if called in a time of peace, to meet at a proper place." He was not, however, satisfied with representatives of the Christian powers. Perhaps he had doubts as to their Christianity. Ambassadors were to be appointed in addition, of "civilized nations", which might care to send them. He did not prescribe "the proper place." The Czar of all the Russias did that forty-eight years later, in 1898. However many ambassadors or representatives a nation might send, it would only have one vote. They therefore were to meet on a plane of equality. They would discuss measures, and only such were to be adopted as all the nations should agree to, and those States only were to be bound which should subsequently ratify them. Certain subjects were not to be discussed.

2Ibid, Advertisement, p. xlix.

<sup>1William Ladd, An Essay on a Congress of Nations for the Adjustment of International Disputes Without Resort to Arms, 1840, Edition of 1916, New York, p. 57.

other; and endeavor, as much as possible, to abate the horrors of war, lessen its frequency, and promote its termination.

2. To settle the rights of neutrals, and thus abate the evils which war inflicts on those nations that are desirous of remaining in peace.
3. To agree on measures of utility to mankind in a

state of peace; and

4. To organize a Court of Nations. These are the four great divisions of the labors of the proposed Congress of Nations.

#### IX.

#### THE HAGUE CONFERENCES

The first of these congresses, called The Hague Conference, met in 1899, in a time of profound peace, and did settle some of the principles of the law of nations "by compact and agreement, of the nature of a mutual treaty". It expressed itself strongly and unequivocally in favor of arbitration for the settlement of disputes, and it created the so-called Permanent Court of Arbitration, which is in reality a list or panel of judges, from which a special tribunal or commission can be appointed, whenever States in dispute may be wise enough to lay their disputes before judges of their own choice, for the decision of their controversies upon the basis of respect for law.

<sup>1Essay on a Congress of Nations, pp. 10-11.

proposed Court of Arbitral Justice of 1907.

In one respect, this is to be regretted, as the Court of the Nations might have been constituted like the Supreme Court of the United States, in which State may sue State without a special agreement to the question in dispute which is often difficult to frame. It is unfortunate, likewise, that a nation can not, as a State of the American Union can, sue a State and obtain a judgment against the defendant even though it does not appear and answer.

However, the first step was taken in 1907, and our French friends tell us that "It is only the first step that counts". A second step was taken in 1920, and a very long one, for an agreement was reached in the Advisory Committee and approved by the Council and the Assembly of the League of Nations, upon an acceptable method of appointing the judges. Many a step remains to be taken to supply law for the Court and to enlarge its jurisdiction. But peace can only result in this practical world of ours, from an infinite series of little steps. The nations are unwilling to make a leap in the dark. They fear, as do the sensible people of which they are composed, to fall in the ditch. Many conferences of the nations must be called to meet to take these steps. A third of The Hague series was due in 1915—that is to say, eight years after the adjournment of the Second, in 1907, as the nations had agreed to a third at approximately this time. But the war came instead.

Will further conferences take place? If so, when and what will be their general program? The Advisory Committee of Jurists that drafted the Court project at The Hague last summer, unanimously recommended a series of conferences to be called "Conferences for the Advancement of International Law", to meet as succes-

To restate the established rules of international law, especially, and in the first instance, in the fields

affected by the events of the recent war.

3. To endeavor to reconcile divergent views and secure general agreement upon the rules which have
4. To consider the subjects not now adequately regulated by international law, but as to which the interests of international justice require that rules of law shall be declared and accepted.

n Europe:

We are inclined to dwell upon our rights, at the expense of our duties, which, however, our neighbors do not

always overlook. Nations which are made up of the same men and women, more or less artificially grouped, are likewise inclined to look upon their rights as free, sovereign, and independent States. We must not, however, deceive ourselves. We have rights, but they are useless unless it be the duty of others to recognize and respect them; otherwise, we would live in a state of anarchy. It is the same with nations, and for the same reasons. Therefore, a problem of the new diplomacy is to devise some form of organization,—call it a society, an association, or a league of nations, if you please—which, while recognizing the right of nations, and safeguarding them, shall at the same time, state the duties of nation to nation, to the end that we may live in an ordered world—ordered, be it said, not from above, not from below, but by the States themselves, in the exercise of their freedom, sovereignty, and independence.

Many attempts have been made to reach this goal; by men of vision, whom the world calls dreamers; by statesmen usually out of office and spending the remnant of their days in dignified retirement; latterly, by hard-headed men of affairs, with the vision of the dreamer, but without the experience of the statesmen. Persons interested in this sort of thing are familiar with the "great design of Henry IV", devised by his great Minister, Sully, living in retirement after his master's death; with Penn's "Plan of a European Diet" at the close of the seventeenth century, by which the forces of the members were to be united in one strength, and to be used against the recalcitrant bent upon breaking the peace; with the project of the good Abbe de Saint-Pierre, in the first quarter of the eighteenth century, which he, like Sully, foisted upon Henry IV, and which is a tractate on perpetual peace, which he sought to usher into a warridden world; with Kant's "Perpetual Peace", appearing during the French Revolution and during the last decade of the eighteenth century, advocating republican, that is, constitutional or representative government; with the

## X.

## THE UNITED STATES AS AN EXEMPLIFICATION OF INTER-NATIONAL ORGANIZATION

Thirteen British colonies of North America, from New Hampshire on the North, to Georgia on the South, declared, on July 4, 1776, their independence by deputies duly authorized thereto and representing them at the time in that distinguished Revolutionary body known as The Continental Congress, then in session at Philadelphia. Heretofore, they had been colonies, and called themselves such; hereafter, they were States, and called themselves such. They were united, some say, in 1774, by the Articles of Association—others that they were united by the Declaration of Independence. The purpose, however, for which they were united was to secure under the Articles of Association a redress of grievances; under the Declaration of Independence, a recognition of their independence by the mother-country. The union was temporary. It

The important point to bear in mind is that these States thought themselves to be free, sovereign and independent, and therefore, they stated themselves to be such. The Articles of Confederation bound each State only from the date of its approval. The last of the thirteen States approved of them on March 1, 1781, from which date there was a union in law, as well as in fact, of the thirteen American States

The union, however, had many grave defects, the chief one being that it did not work, or at least that it did not work to their satisfaction. The farsighted among them therefore proposed a more perfect union. And what was this to consist? Of *States*, in place of the less perfect union of States.

For this purpose each of the States, with the exception of Rhode Island, which abstained in the exercise of its sovereignty, freedom and independence, sent delegates to meet other delegates of the States of this imperfect union, in order to make the Articles of Confederation adequate for the exigencies of the Union. They were to have met on the second Monday in May, in Philadelphia. A majority of the States were not represented until the 25th, when they met. The delegates were appointed by the legislatures of the different States; they acted under instructions from their respective States. Their first act was to elect a Chairman, one George Washington, Delegate from Virginia, and a Secretary. They thereupon proceeded to examine the credentials of the different members, in order to see that they were entitled to represent

The Constitution had made the ratification of nine States necessary for the government thereunder to go into effect—not for all of the States, but merely for the nine or more which might have ratified it. Two held out, and were therefore foreign States. One of these, North Carolina, came in in 1789. Rhode Island toddled in in 1790.

How was the Preamble to begin? All the drafts save the last reported by the Committee on Style, on Septembr 12, began with "We the People of the States of New Hampshire, Massachusetts, Rhode Island", etc., down to and including Georgia. That is to say, they enumerated the thirteen States, beginning with the most northern and ending with the most southern. Should the thirteen be included, when only nine might ratify, and when, as a matter of fact, two out of the thirteen did not, until after the Constitution and the government under it went into effect? Some clever draftsman, probably Gouverneur Morris, who was a member of the Committee of Style and Arrangement, and to whose facile pen the excellent literary style of the instrument is accredited, solved the difficulty by striking out all the names of the States, and inserting, "United" before "States", so that the Constitution, instead of reading, "We the People of the States of New Hampshire", etc., read now, reads and ever will

read, "We the People of the United States". We should not, however, overlook the fact that it was the people of the States; it was the people of each of the States that ratified the Constitution; it is the people of each of the States that elect the members of the Senate and the House of Representatives, and it is the electors chosen by the people within each of the States who elect the President of these United States.

Because of this, their experience is valuable to people of foreign States, who also act, when they act, within their States. Each State of the American Union has two Constitutions. One is local, dealing with those matters that begin and end within the boundaries of the State. It may be amended whenever the people so desire. The second Constitution is not local, but general. It deals with matters that may begin within a State, and extend beyond it, or which arise without the States, and yet affect them, as in the case of foreign affairs. This constitution is the Constitution of the United States, ratified by each of the States, and declared by Article 6, Section 2, thereof, to be the supreme law of each of the States. It cannot be amended or modified, or varied by any State. They adopted the Constitution as a whole, Article 5 of which provides that amendments to the Constitution, to be effective, must be "ratified by the Legislators of three-fourths of the several States, or by Conventions in three-fourths thereof." The Constitution is not, therefore, to be like the law of the Medes and the Persians. It changes with the changing moods of three-fourths of the States.

The second requisite is that to the extent of its granted powers, the government of the Union should act upon each member of the State. States cannot act themselves, they must act by agents. An agent attempting to do an act contrary to the fundamental law can be restrained. As the act, therefore, is not committed by the State, but by an individual, the State is not involved, merely the person claiming authority which he does not possess, whether that be under the statute of a State in conflict with the act of Union, or due to a false interpretation of the act of Union. This simple principle, new in political science, when it was devised by the wise men of the Federal Convention, has made it unnecessary to coerce sovereign

If Europe should wish to follow Dr. Franklin's advice, the way is still open. Should all the nations wish to follow in the footsteps of the conferences which have met at The Hague, and, without creating a close union, organize the world upon the basis of justice and the rules of law, this can also be done.

In either event, the experience of the United States will be helpful. For this country of ours was founded, as James Russell Lowell has so beautifully said, "By men with empires in their brains."

JAMES BROWN SCOTT.

# Economic Factors in International Relations

# ECONOMIC FACTORS IN INTERNATIONAL RELATIONS

T.

#### ECONOMICS AND POLITICS

It was economic development, a growth of wealth and commerce, that brought Venice to leadership in the Mediterranean. "He hath an argosy bound to Tripolis," said Shylock, "another to the Indies; I understand, moreover, upon the Rialto he hath a third at Mexico, a fourth for England." This international character of her trade and the diversity of the world's coins which poured into her markets directly forced the solution of a common means of payment and the first issue of notes by the Bank of Venice. It was the hunt for wealth and the precious metals which sent Columbus adventuring to the New World. The consequent stream of silver from America and its effect on Europe during the reign of Charles V. set in train the theory of a favorable or unfavorable balance of trade (depending on whether or not a country maintained an excess of imports in specie), the error of which has not disappeared even to this day. Then, again, international contacts were made by the Hanseatic League, with its seat

at Lubeck; and later the wide-flung fleets of the Dutch brought new international relations, especially with England. In recent years, the most prominent example of all has been the extension of British economic relations with every country in the world. So that, at least as one of the reasons, diplomatic missions to the Court of St. James become of the most conspicuous importance—that is, when we are not considering mere social relations. Why is it that contracts and bills of exchange all over the world, in every port of the distant seas, have been drawn in terms of pounds sterling? The most casual observation thus shows us how economic forces function in endless variety between nations.

We have a striking illustration in point at the present moment in the difficulty of settling on the amount of the reparation to be paid by Germany to the Allies. In the beginning of the discussions at Paris as to what could be exacted from the defeated enemy, a grave error was committed by attempting to fix the amount by reference to Germany's wealth and income. As a consequence very exaggerated sums became possible to the imagination of the victors. French financial policy was seriously affected by false expectations; and Lloyd George went to his electorate in the memorable election of December, 1918, promising them indemnity for the largest part of British war expenditures. The report by the economic section, however, showed conclusively that the sum must bear direct

relation not to statistics of wealth but only to Germany's producing power. It is obvious that a proportional part of German wealth in the form of mines, furnaces, mills or farms could not be handed over as reparation. There could be taken only a part of the output from these and other productive sources. Nor could she pay in this output of goods unless she could get the cotton, copper, rubber, and like materials to be used in her productive processes. Eggs cannot be laid if hens are cut off from food. On the settlement of this matter of the German reparation and the removal of the uncertainty attached to it hangs much of the economic readjustment of Europe; and the solution would directly affect the foreign exchanges and our own industrial recovery. The insistency of an economic understanding of the most pressing and practical international question today is only too painfully evident.1

#### II.

When we seek the fundamental economic forces underlying our necessary international relations we come first to the movements of population. These are primary causes of international reaction. Impelled by the pressure of numbers on subsistence there were the early incursions of the Goths and Vandals over eastern and southern Europe and the surge of the northern Teutons over Germany, France and Spain. But in modern days, questions of immigration and emigration touch very sensitive international nerves. These are so numerous and so obvious that it is not possible to be exhaustive in this paper. At the best we can only hope to be suggestive in a way to stir reflection and open the path to individual study.

One interesting form of international relations arising

<sup>1Cf. J. M. Keynes, The Economic Consequences of the Peace (19), and Bernard Baruch. There is a review of Baruch's book by Keynes in the New York Evening Post, Dec. 4, 1920.

<sup>1Cf. H. A. Millis, The Japanese Problem in the United States (1915): J. F. Steiner, The Japanese Invasion (1917).

III.

#### FOREIGN TRADE AND SHIPPING

As we enter further into our subject we find that the immediate and inevitable economic contact of one country with another is through its foreign trade and its shipping.

From the very beginnings of our national existence equality of treatment between American and foreign ships became a burning issue. To meet the British Navigation Acts, we discriminated in 1789 in favor of our ships by tonnage duties, and in the same year by customs duties. The regulations against foreign vessels in our coastwise trade have been so stringent that since 1817 Americans have maintained a strict monopoly in that trade. In the foreign, as contrasted with our coastwise, shipping, we soon found we could not apply discriminating treatment in our favor without meeting with drastic retaliation from foreign countries. When our ships entered foreign ports they were likewise met by discriminating duties against us. The crass assumption that we could sell without buying was finally given up about 1830. It reappears now only in the occasional offer of a bill by some callow statesman from Buncombe County.

ment of extreme nationalism, but without much of the gain that might have arisen from a more flexible system of economic co-operation with the rest of the world.1

On this solemn international covenant, the United States

<sup>1Coman, Industrial History of the United States (1910), Ch. V., VI.

We know that President Harding, while Presidentelect, visited the Panama Canal with the purpose (if correctly reported) of recommending the restoration of the exemption, which was mentioned in the Republican platform. The position of Mr. Harding is evidently that of the protectionists who have long worked to eliminate foreign competition both in ship building and in ship operation. The presence of this matter in the platform was

#### TV

#### ECONOMIC POSTILLATES OF FOREIGN TRADE

The very existence of foreign trade between nations arises from fundamental economic principles. One of the earliest developments in industry was the recognition of the advantages flowing from division of labor, which, of course, are familiar to you all. It was an expression of the need for men to overcome the innate centrifugal tendencies of individualism in favor of co-operation in work, which would result in greater satisfactions for less effort. That one man, or one group, should specialize and gain skill in producing one article or even a certain part of one article, has enormously multiplied the productive power of industry and added uncounted comforts even to the poorest ranks of society. International trade is but an application of the principle of division of labor to the wider industrial operations of different countries with their

<sup>1W. T. Dunmore, Ship Subsidies (1907).

various characteristics of soil, climate and racial development.

There will be no such trade unless there is a mutual gain. Hence international trade arises out of the fact that one country possesses a relative advantage in the production of one commodity (A) while another country has a relative advantage in a different commodity (B). By exporting A to pay for an import of B the first country gains by not having to produce B in which it has the relative disadvantage; and the other country gains conversely by putting its productive effort into B, in which it has a relative advantage, and obtaining the imported commodity A at the cost of producing B. This operation, based on reciprocal advantages in some articles relatively to others at home, is what is known as the working of the Doctrine of Comparative Costs. It is the cause of the existence of all international trade. Under it, the vast exchanges of goods between nations goes on, and the international relations arising from this commerce have become numerous and intricate; but yet they must conform—whether we realize it or not in our daily transactions—to the simple economic principle just described. Any domestic policy adopted in ignorance of its working is sure to be visited with inevitable failure.

As usually happens in the experience of both men and nations the definite and unequivocal results of purely economic forces are not allowed to take place unhindered by the interference of selfish, private or nationalistic interests. The reciprocal gains from international trade are fully reaped only when no obstacles are introduced to check the free movement of goods between countries. But tariffs on the importation of foreign goods, export duties on home products, restrictions on the movements of the precious metals used in settling international balances—to say nothing of resolutions and actual warfare—all work to reduce the mutual gains naturally issuing from foreign trade. There comes a conflict between economic forces and those of a nationalistic, political, or racial char-

acter. In the long run economic forces assert themselves, but for the time being there is usually a perturbation due to the conflict of these forces. As a consequence international relations are in a constant state of unrest, requiring of those in charge of foreign affairs a penetrating economic insight.

chinery. Our farm labor yields more wheat and corn for its efforts than it does in growing flax and hemp. Hence we import hemp and flax for fine goods, even under protective duties.1 Protective duties on wheat and corn would be futile, because we export them. Such duties would not raise the prices to our farmers, because they are fixed in the markets of the world, and yet it is seriously proposed by heavy duties to prevent Canadian wheat entering our country. The proposal is absurd. Two rivers flowing side by side into the gulf affect the level of the sea just the same as they would if one river were diverted into the channel of the other and poured out their joint volume through one mouth. Canadian wheat will enter the world's market by its own channels and affect the world price just as much as if it travelled part of the way on our railways and ships.

Any producer of goods can go on only if he finds a buyer. Under division of labor one man's product is his means of buying the goods of another. In our modern industrial organization no industry can live in and for itself. It can exist only by a system of exchange of goods one for the other. That is, the interdependence of industries one upon another is the logical and inevitable consequence of that separation of occupations with its intensive specialization which is the characteristic difference of modern from primitive industry. Successful and increased production of desired goods by one means an increased effective demand for the goods of all others. The prosperity of the one stimulates prosperity of the others in the chain of exchange; the disaster of the one brings loss to the others.

This interdependence of our domestic industries one upon the other holds quite as truly of one commercial nation upon another. America cannot sell, if Europe and foreign lands cannot buy. Never was that simple truth

<sup>1Cf. F. W. Taussig, Tariff History of the United States, 4th Ed., pp. 364-409.

V.

#### FOREIGN EXCHANGE

In the settlement of transactions between nations a peculiar language has sprung up descriptive of international payments naturally different from that in use in our domestic operations; but the functions to which they apply are essentially the same. Instead of dollars and checks at home, we hear in international usage of pounds, francs, or crowns and bills of exchange. In our domestic trade the values of goods are offset against each other by the clearing of checks drawn on deposit accounts; but in international trade the instrument used is a bill of exchange. It keeps the international account open, while debits and credits on all kinds of items are allowed to be offset, saving the transmission of gold on industrial transactions, and allowing its shipment only for the settlement of balances. The economic relations between different countries at any given time can be read clearly in the state of the foreign exchanges and its rates. At the present day the working of the market for bills of exchange between the United States and Europe is a matter of vital concern. If A sells coal to France or Italy, in what is he to be paid? Gold will not be sent him, for various reasons I need not go into. As compared with our dollar, francs

and lire are now at a very heavy discount. A has a claim, say, for \\$10,000, the price of his coal. By a bill of exchange drawn on the foreign buyer he can sell that claim to a New York bank dealing in foreign exchange. That number of dollars would today be worth 140,000 to 170,000 francs (instead of 51,800 at the pre-war par). To pay three times as many francs as before the war for the same coal, solely because of the higher rate of exchange between francs and dollars, makes coal very high to the French. The same process goes on for all imports into France or into other countries whose exchange is at a discount. Such a situation produces great distress.

If, however, a Frenchman could export to New York silk goods worth here \\$10,000, he could by a bill of exchange drawn on the American buyer sell his claim on New York to the French buyer of coal and the import would be paid for by the export. The value of one shipment would offset the other. Or, as generally explained, if all exports and imports just balance, exchange would (other things being equal) remain at par. But the practical operations are not so simple as that. Besides the movement of goods, bills are drawn on other items in the international account, such as the sale of securities, travellers' expenses, freight charges, or settlement of debts; and when all these credits and debits are offset, even the balance may be carried along without a shipment of gold.

this discount in the exchanges will exist for reasons wholly independent of the equilibrium between exports and imports; for these reasons have to do with the possibility of redemption of the franc in gold. The bill of exchange—the medium of exchange in international trade—will remain at a discount unless it is redeemable in gold, just as any domestic medium of exchange (like our greenbacks) would, if not convertible into gold. In short, while it is of the first importance to aid Europe by credits to rehabilitate her industries and increase her exports, with which she can pay for her imports, the difficulties due to the depreciation of the franc as compared with our dollar will still remain. Very little recognition seems now to be given to this second element affecting the rate of foreign exchange. It will continue to increase the cost of her imports to Europe and afford a premium on our exports. It would be much as if a gold standard country (like the United States) were trading with a country having a fluctuating silver standard.

### FINANCIAL AND INDUSTRIAL OBSTACLES TO INTER-NATIONAL PEACE

As a final illustration of the influence of economic factors on our international relations we find it in the overwhelming difficulties now checking the industrial recovery in Europe and the settlement of the terms of peace. Those of us here, in the comparative prosperity and security of the United States, have little conception of the prodigious tasks—financial and industrial—which confront the peoples of the belligerent nations. Great Britain and Belgium have made the most progress; but France and especially Italy, with central and southeastern Europe, are face to face with tasks to daunt the ablest statesmen. To top it all, they are treading on the red-hot gridiron of radical revolutionary excitations. We are fast reaching the point when it is beginning to be generally understood

Behind the courteous language of diplomacy we must understand that there is no sentiment in the negotiations for peace and the economic readjustment. We are wanted in Europe because it is hoped we can be induced to bear the burden of financing its people during this critical period. And although we spent in the war about \\$34,000,000,000, without hope of any recompense but safety from the aggressions of Germany, Europe still looks to our comparative superiority in resources for rehabilitation. It is not because we are liked, but because we can grant credits, that we are sought for. It is practically an economic matter. But, besides a moral obligation to succordistress among neighbors it is wise for us to see the facts just as they are. Whatever we do we need not expect gratitude.

Stand with me, if you please, in the town of Lens, in the coal district of northern France, a short time after the armistice. Where once there stood 11,000 houses there are only roads cleared through a desert of battered bricks and ruins; not one house is standing; not one coal shaft can be worked. In the cold winter rain a one-horse load of household goods pitifully carries an old woman on top, exposed to the storm, and a boy leads the gaunt little horse. What is the process of reconstruction? Freedom from war, and the opportunity to get to work again. The old woman and the boy clear up a corner against a wall, pile up the loose bricks in three walls, cover the top with stray pieces of corrugated iron, for a stable. They find shelter in a cellar or a dug-out, and make a fire. They are pioneers in an old land. The next evening is seen the age-old miracle of hope triumphant over despair when the horse and plough rise over the hill against a crim-

The labor force is less than of old. But after Germany was forced to disgorge its stolen machinery, the repaired factories were ready to work. Then, who will provide the raw cotton, the wool, the jute, the copper, the rubber, and the coal to set the man at work and produce the goods by which imports can be purchased? If Europe had been at once given a start by credits to buy materials and restore transportation she ought now to be humming with industry. Food is yet needed until the land is again producing with fertilizers as of old. This is the reason why our bread stuffs, our materials and our coal are still pouring into Europe in a large volume. But how can they pay us? Suppose they are granted credit. At the maturity of a credit, how can they pay? Only in goods. Therefore, the solution is one of productive power to be built up by labor and capital in the varied forms of material, equipment, machinery and transportation.

How goes the struggle for this rehabilitation? Have peace and order, after war, been given to Europe so that she can give all her energy to developing her productive power? Here is the crux of the whole matter. What is going wrong now after more than two years since the armistice? Let us face the actual situation, much affected by wrong-headed blundering at the expense of suffering to millions of innocent people. (I) In the first place, a vague, new experiment in a League of Nations ought to have been separated from the immediate establishment of peace. The organization to enforce the terms of peace and to establish law and order should have been separately worked out, taking the necessary deliberation with-

In conclusion, what methods of relief can be adopted? We may dismiss those that assume the cancellation of war debts due the United States, as well as those proposed at the Brussels Conference for an international bank intended to raise credits on possible resources of crippled countries, since internal conditions make these assets unbankable; or, an international syndicate for the investigation, organization and control of transactions to obtain raw materials. The only other proposal at the Brussels Conference, and which appears in the same general form in that of Sir Robert Horne (Jan., 1921), is that the Government of an importing country should support a bond to be given by the importer in payment (or as security)

J. LAWRENCE LAUGHLIN.

I.

#### AMICABLE METHODS

Practitioners of private law, who are accustomed to think of law only as it is administered by municipal or domestic courts, are often inclined to deny legal classification to the rules and methods by which international relations are conducted. Perhaps we may say that, in proportion as one has occasion to deal with international affairs, he ceases to be controlled or misled by such a conception. In the sense that force cannot always be immediately and effectively applied in the international sphere to the accomplishment of a particular object, and that definite and common agencies are not provided in advance for its application, the administration of international law differs from the administration of municipal law. But it by no means follows that law and agencies for the administration of law do not exist in the international sphere. In reality, organization exists in the domain of international relations and is made effective through its own appropriate agencies and methods.

#### NEGOTIATION

By the rules of the Congress of Vienna, as amended by the Congress of Aix-la-Chapelle, diplomatic agents are

divided into four classes :

(I) Ambassadors, legates and nuncios;

- (2) Envoys, and ministers plenipotentiary
- (3) Ministers resident;
- (4) Chargés d'affaires.

Legates and nuncios are the representatives of His Holiness, the Pope, while ambassadors constitute the highest rank among the representatives of civil and political powers. The most highly esteemed privilege of the ambassador is that, as the peculiarly personal representative of the head of his own State, he is supposed on all occasions to have a right of access to the head of the State to whom he is accredited, together with the happy and comfortable privilege, so conducive to tranquil slumber in the later morning hours, of compelling his diplomatic colleagues of inferior rank to wait for access to the secretary of state or minister of foreign affairs so long as there is an ambassador within sight or sound.

Plenipotentiary." In reality, neither the one nor the other is either extraordinary or plenipotentiary. These titles have come down from the days when special rather than permanent missions were the rule, and when ambassadors and envoys were actually invested with full powers, in order to meet the extraordinary occasions which called for their appointment. Today the usual powers and credentials of ambassadors and envoys suffice only for ordinary occasions. No government would dream of concluding a treaty with an ambassador or envoy unless he had a special full-power. The minister resident, like the ambassador and the envoy, is entitled to an audience of the head of the State on the presentation of his credentials; but the envoy and the minister resident can claim no such right in the subsequent conduct of their business.

Immunity from ordinary legal process belongs alike to all persons possessing a diplomatic character. This immunity is sometimes called extraterritoriality and, when, interpreted in the sense of this highly metaphorical word, is often greatly exaggerated. It is sometimes said that diplomatic representatives are wholly exempt from legal obligation, and that their residences are foreign ground. Such conceptions are creatures of the imagination. They have no foundation in international law or practice. No man is above the law, in the sense of being exempt from the duty to obey it. The fact that a diplomatic officer is exempt from the service of ordinary legal process, rather than from the duty of obedience to the law, is readily demonstrated by the fact that if, after his commission of an act which the law criminally forbids, his government with-

Diplomatic officers are not the only agents of the State of whom international law takes cognizance. Such agents comprise consuls, officers in command of the armed forces of the State, military or naval, and commissioners or other persons employed for special objects. But these non-diplomatic agents do not by virtue of their official character enjoy immunity from legal process unless it is specially provided for

Before passing to other topics, it is proper to mention, in connection with the appointment, recall or dismissal of diplomatic agents the question of personal acceptability. In this relation we use the technical terms persona grata and persona non grata. Objections may be made to receiving a diplomatic officer, or to his remaining at his post, on the ground that he either is or has become personally unacceptable. The reason of this rule is that the chief object of diplomatic intercourse is the cultivation of good relations, and that the attainment of this object is of more importance than the personal fortunes of an individual. Except in extraordinary emergencies, which seemed to compel immediate action, it has been the rule, where a minister has become unacceptable, to seek for his recall. But, if his recall should be refused, his dismissal would not then furnish a legal ground of complaint. Sometimes controversies on the subject have arisen from the fact that it was alleged or believed that personal unac-

rigerice kar. i is is is is is is is is is is is is i

#### MEDIATION

ຓ arbitrator, to whose decision they submit their differences, and whose award is binding on them." In substance mediation is an exercise of good offices. The distinctive meaning which the term conveys is that the proceeding is attended with a certain formality, with special emphasis on the advisory or recommendatory phase. Not infrequently a mediation resembles an arbitration, except in the vital point that it does not result in a decision.

bombardment of Valparaiso, it was found to be impossible to conclude a formal peace; but on April 11, 1871, the delegates in the conference agreed upon and signed an armistice by which the de facto suspension of hostilities between the belligerents was "converted into a general armistice or truce," which was to "continue indefinitely" and could not be broken by any of the belligerents "save in three years after having expressly and explicitly notified the other," through the Government of the United States, "of its intention to renew hostilities"; and it was provided that, during the continuance of the armistice, all restrictions on neutral commerce which were incident to a state of war should cease.

In recent days there has been an anxious agitation concerning the Island of Yap, which seems to have been destined to play the part of a storm center. Thirty-five years ago a dispute concerning it gave rise to one of the most interesting mediations of modern times. This dispute grew out of the action of a German Admiral who in 1884 raised the Imperial flag over the Island as a sign of occupation. In order that our thoughts may be clarified perhaps I should state that Yap is one of the Caroline Islands and that the Caroline Islands are in the Pacific Ocean. The act of the German Admiral provoked in Spain an outbreak of popular violence which was marked by attacks on the German Embassy and the German Consulate at Madrid. In order to avert hostilities, Prince Bismarck proposed the submission of the matter to the

In the discussion of good offices we have seen that considerations of propriety and of delicacy have tended to embarrass and prevent the employment of the process. The Convention for the Pacific Settlement of International Disputes concluded at The Hague on July 29, 1899, undertook to remove this difficulty by stipulating that in case of serious disagreement or conflict, before an appeal to arms, the signatory powers should as far as possible have recourse to the good offices or mediation of one or more friendly powers; that an offier of mediation might be made by powers, strangers to the dispute, on their own initiative, even during the course of hostilities, and that the exercise of this right should never be regarded by any of the parties to the conflict as an unfriendly act. These stipulations denoted on the part of their authors the possession of an intelligent and practical understanding of the nature of international relations and tended to enlarge the opportunity for the exercise of the mediatorial function.

(d)

#### ARBITRATION

In reality there is manifest, among some of those who discuss the subject, a tendency to misconceive and overrate what is called the "judicial" element in the conclusions of municipal courts, as well as to misconceive and overrate the element of "compromise" involved in the conclusions of international arbitrators. While the decisions of international arbitrators, like the decisions of municipal courts, have the character of final judgments, and are in this sense alike "judicial," we are safe in affirming that there is no such thing in the affairs of men as purely "judicial" deliverances, based on "pure law," without any element of compromise. Such things are not of this world. Why do courts divide? Why do judges dissent? Why does the single judge hesitate and reserve his decision, and, when he eventually renders it, confess the doubts that have troubled him and have rendered the re-

sult uncertain? The answer to these inquiries is found in the fact that such are the processes of human thought. Our conclusions represent the anxious balancing of conflicting considerations and the effort, if we be honest, to give most weight to those that may seem to us to be the most meritorious. It is, therefore, no reproach to international arbitrators, nor does it impeach their integrity of purpose or the judicial character of their action, to admit that, as human beings determining human disputes, they have not been exempt from the limitations of human thought. Moreover, as one to whose lot is has fallen actually to examine the work of international arbitratrs, from the earliest times to the latest, I am prepared to pronounce unjustified the invidious imputation to them of a disposition to substitute diplomatic compromises for conclusions based on law and justice.

#### TT

(a)

#### NON-FORCIBLE

## Rupture of Diplomatic Relations

within categories hereafter to be discussed.

In the early international relations of the United States much was heard of measures of embargo and non-intercourse. Both these measures may be regarded as falling under the head of retaliation.

By Joint Resolution of Congress of March 26, 1794, an embargo was laid for thirty days on all ships and vessels in ports of the United States bound for any foreign port or place. The immediate cause was the British Order in Council of November 6, 1793, restrictive of maritime

## FORCIBLE

## Reprisals

This is a vivid picture of reprisals as they have usually been conceived.

An early example of this tendency, exhibiting a blend of private and of public reprisals, is narrated by Ward in his History of the Law of Nations (1795), I 294-296. Although some of the details are amusing, the results were most serious and perhaps we may say that in this regard the affair was rather human. According to Ward, in 1792 two sailors, the one Norman, the other English, quarrelled in the Port of Bayonne and began to fight with their fists, and the Englishman being the weaker is said to have stabbed the other with his knife. The local magistrates failing to intervene, the Normans applied to their King, who authorized them to take their own revenge. This they did by putting to sea and seizing an English ship, some of whose crew they hung up to the masthead, together with some dogs. The English instantly retaliated; two hundred Norman vessels scoured the English seas hanging all the seamen they could find, while the English seized the Normans and put them to death without quarter. "The affair then," says Ward, "became too big for private hands, and the governments interposing

#### PACIFIC BLOCKADE

expressed as to the nature of the measure, and indeed as to whether it may properly be admitted to exist; but this difference may be due to the combination of words in the title; the word "blockade" having been used to designate a well-recognized belligerent operation. Nor does the word "pacific" fortunately qualify a measure of open force and coercion. But, if we close our eyes to the inappropriateness of the words and consider the nature of the process, we may see that we have, under the title "Pacific Blockade," merely a form of reprisal. Reprisals, although classified as a measure short of war, in the sense that they do not proceed upon the assumption of the present existence of the legal condition of things called a state of war, are not otherwise "pacific"; and so with pacific blockade. If the measure is not extended, as is belligerent blockade, to the citizens, vessels and property of third powers, it presents nothing exceptionable from the legal point of view, so long as reprisals continue to be acknowledged as a legal process.

Calvo cites, as the first example of pacific blockade, the action of France, Great Britain and Russia, in 1827, in obstructing access to the coasts of Greece, where the Turkish armies were encamped, the representatives of the three powers continuing to assure the Sultan of their friendship, and to declare that peace was unbroken, although the measure they adopted served to paralyze his armies. In June, 1831, a French fleet, in order to obtain reparation for injuries done to French subjects in Portugal during the reign of Dom Miguel, "blockaded" a number of points on the Portuguese coast and captured a large number of Portuguese ships. A state of war did not ensue, and on July 14, 1831, a treaty was promptly concluded by which reparation was promised to French subjects, while all Portuguese ships of war and of commerce that had been captured by the French fleet were restored. In 1833 France and Great Britain, with a view to compel the assent of the Netherlands to the recognition of the Kingdom of Belgium under the treaty of London.

paper and with a pack of cards, and offered to one of them a bed. The demands for redress made upon the Brazilian Government were (1) that the ensign of the guard be dismissed from the service, (2) that the sentry who was said to have begun the attack be adequately punished, (3) that an apology be made by the Brazilian Government, (4) that the chief of police of Rio de Janeiro be publicly censured for certain acts prior to the complainants' release. On June 18, 1863, the arbitrator rendered an award, in which, after reciting the proofs submitted by the parties, held that, in the manner in which the Brazilian laws were applied in the case, there had been neither premeditated nor actual offense towards the British Navy. It should be stated that, after this decision was rendered, the British Government sent a representative on special mission to Rio de Janeiro to express regret for the circumstances under which the friendly intercourse between the two countries was suspended, to disavow any intention to offend the dignity of Brazil, and to propose the renewal of diplomatic relations. The Emperor received these assurances with an expression of satisfaction; diplomatic relations were restored, and the incident was ended.

#### WAR

legal condition of things called a state of war, in which the parties prosecute their claims avowedly as belligerents.

#### LIMITED WAR

Writers have been accustomed to speak of two kinds of war, "perfect" and "imperfect." The former described the condition in which the whole nation is said to be at war with another nation and all the members of each are authorized to commit hostilities against all the members of the other in every case permitted by the laws of war; the latter, the condition in which hostilities are limited as to places, persons, and things. For the terms "perfect" and "imperfect," I have ventured to substitute the terms general and limited. To ascribe to war perfection, unless indeed it should result in utter annihilation of one of the parties, seems inappropriate, while, to ascribe to it imperfection for falling short of that goal, might justify the reproach of inhumanity. In reality, limited war is war, and is as nearly perfect as any other kind, as far as it goes.

One of the best-known examples of a limited war, which happens to be furnished by our own history, is the condition of things which existed between the United States and France from 1798 to 1800. Engagements took place at sea, vessels were captured, and prisoners were taken. In the case of one of the captures (Bas v. Tingy, 4 Dall. 37), the Supreme Court of the United States held that, as Congress had raised an army, stopped all intercourse, dissolved all treaties, built and equipped ships of war, and commissioned privateers the two countries were "in fact and in law at war"; that an American vessel fighting with a French vessel, to subdue and make her a prize, was "fighting with an enemy accurately and technically speak-

ing"; and that the provisions of the law relating to prizes made in war were applicable to the case.

#### GENERAL WAR

General war is not limited as to places, persons, and things, but authorizes all acts permitted by the laws of war against the enemy's state and its members. It may be said that, in this sense, war is merely general reprisals carried on by states which have resolved to conduct their contention by force.

In considering the cases in which the use of violence against persons or property may or may not be permitted by the laws of war, we are confronted with two theories of the nature of war. According to what we may call the original theory, all persons belonging to the enemy, including women and children, may lawfully be attacked and killed and their property destroyed. This comports with what I venture to call the annihilative or extirpatory conception of the object in view. This conception is exemplified in the old rule that it is permissible, if not meritorious, to put all the inhabitants of a besieged city to the sword, to say nothing of the commendations, in earlier writers, of the use of violence against all persons and property of the enemy.

On the other hand, towards the end of the last century there was propounded a different theory, formulated in the well-known sentence of Rousseau, that war is a relation, not of individual to individual, but of state to state, and that men are enemies, not as individuals, but only as agents of the state. This theory has been formally accepted by many governments and has to a certain extent been incorporated in their legislation. It has not been accepted by the British Government, nor has it been accepted by the Government of the United States. From this circumstance we are not by any means to infer that these two governments have sought to give full effect to the earlier rule in their practice. Both have accepted and advoca-

ted ameliorations of the earlier rule, and have advocated and accepted such ameliorations as a part of the modern law of war, just as the governments which have accepted the rule that war is a relation, not of individual to individual, but of state to state, have not consistently carried out the theory in all is logical consequences. In this way the nominal adherents of the earlier theory and the nominal adherents of the later theory have been able to

At the present moment a writer or speaker who ventures to discuss international relations seems to lay himself open to the charge of incompleteness of thought if he fails to present or to commend some proposal by which war is to be immediately and finally abolished. Whether this expectation proceeds from a desire to end the numerour armed conflicts still going on, or from a wish to preserve a fancied condition of peace which does not in fact exist, I am obliged to regard it as essentially impulsive and superficial. At a meeting of the so-called League to Enforce Peace held at Philadelphia in June, 1915, an eminent speaker expressed disappointment that certain persons whom he named had not presented a plan for the termination of the war then raging in Europe. Much sounder was the view expressed by the late James J. Hill, when, on the outbreak of the war early in August, 1914, in response to the request of a reporter for an opinion as to when the war would end, he sententiously replied: "Young man, you can ask more fool questions in five minutes than I can answer in a week. The war will end when somebody gets licked." As the war progressed in area and in intensity, orators often spoke of it as "a war

The extent to which such agencies or methods may be successfully employed may be said to depend rather upon the disposition of the parties to accept them than upon the nature of the dispute. If, for instance, arbitration has failed to prevent a certain war, it by no means follows that arbitration could not have settled the dispute to the satisfaction of the parties, if they had been willing to try it. Wars have often grown out of disputes far less serious and complicated than some of those which arbitration has actually settled. In the future, just as in the past, the preservation of peace, internal as well as external, will continue to depend on the cultivation of a spirit of justice and of toleration, and the exemplification of that spirit, by men and by nations, in their dealings with one

JOHN BASSETT MOORE.

## "THE EVOLUTION OF PRIVATE INTERNA-TIONAL LAW"

OF FOREIGN RELATIONS OF

#### VENEZUELA

(In pursuance of its plan to train the students of the School of Foreign Service not only in the theory of Foreign Service but also in its practice, Georgetown University sent a group of eighteen (18) students to Venezuela in the summer of 1920 to become acquainted with the people and to study the economic conditions of the country. This trip was a signal success, due to a large extent to the many official courtesies extended by the Government of Venezuela. Hence, when Dr. Esteban Gil Borges, the Minister of Foreign Relations of Venezuela, arrived in the United States at the head of a special mission in April, 1921, Georgetown University conferred upon the Minister the degree of Doctor of Laws. The paper given below was read by Dr. Borges on this occasion.)

This tendency is not an exceptional fact in private international law, but it is common in the evolution of all systems of law. Private international law tends to become a law of the state just as in other times private law was

the law of the race, in the case of the barbarian peoples, and was the law of the city in the Greek and Latin forms of society, and the law of the land in the period of feudal social organization.

At certain moments in the course of history the juridical ideals of mankind, as it exists in one or another group, are so energetically expressed that they take on the form of a legal system exclusive in character. Progress has lengthened the radius of this orbit from the ethnic unit to the city, from the city to the province, from the province to the nation. In Rome this exclusive character of the law dominates the Law of the Quirites. The law of the feudal period, in its turn, was as exclusive in nature as the Roman law of the early times. The doctrine of territorial sovereignty, absolute in character, was exclusive in a way analogous to that which had marked the effect of the Law of the Quirites on Roman institutions. In Rome, there was the exclusiveness of the city as against all that lay without, while within the city there was the exclusiveness of the patrician class as against the plebeian class. In the middle ages, the attitude of exclusion was that of the feudal estate on the one hand as against all that lay outside, while within the unit of sovereignty the law of the lord was exclusive as against that of the vassal.

In Rome the city limit was the frontier of law. The law was the child of the city. The foreigner was the enemy. The city was juridically a community isolated within its hills.

In the society of the middle ages there was, as in Rome

Periods of time, often centuries long, were necessary in order that progress should break down these boundaries limiting the effect of law set up by the caste, the race, the city, and the feudal estate, in turn. In Rome, the political work of the Empire, the philosophical contribution of Stoicism, the spiritual reform of Christianity, were necessary to bring about the transformation of the Law of the City into the Law of Nations. In our modern times the political achievement of monarchy, the philosophical influence of the Natural Law School and the grinding process of revolution were all required to change the law of the province into the law of the nation.

The legal theories of Italy were the children of Roman cosmopolitanism.

ideas and instincts are the result of an historic evolution which has at times lasted centuries. In the middle ages we have seen the countries of the Roman Law develop in the direction of the personality of law, while those which lay outside the influence of Latin civilization developed rather towards the territorial concept of law. Later, we have seen two other elements in conflict: on the one hand, the legal customs of feudalism, and on the other, what was left of the legal system of the invaders. The fundamental principle of the one was territorial sovereignty, while the key of the other was the law of the race. The two principles carried on a long struggle, and historical conditions determined the victory in each instance

among the statutory theorists," and, again, that "The statutory jurists are already French, Belgian, German."

The reason for this difference in interpretation of the same system of law is to be found in the controlling ideas which characterized each of the peoples, and also in the diversity of their social institutions. Law has been profoundly affected by social conditions and mental aptitudes. In Italy, which was a country primarily municipal in its social structure and fundamentally Roman in its juridical development, the dominant theory was that of the glossators. In France, on the other hand,—a feudal country, the land of the *coutumes*,—the prevailing law was the law which ran with the land, although there was discernible an occasional tendency towards adoption of the Italian system. Again, in the Netherlands and Belgium, which were countries of provincial autonomy, the governing principle in law was that of absolute territoriality.

tion seems to have changed.

ຝ an identical origin and a close relationship. "We must not," says Laurent, "confuse the personal law of the Germanic peoples with the personal law or statutory law of French legal theory. In our system, one law governs all those who are members of a single state. The Code Napoléon governs all Frenchmen whatever may have been their racial origin. Generally speaking, laws are without authority beyond the boundaries of the territory

<sup>1Laurent—Dr. civ. int. I—257-258.

over which the legislator exercises jurisdiction. Some laws, however, which deal with the status and capacity of persons continue to govern even Frenchmen living in foreign lands; and these laws are called personal because they refer to the person and no Frenchmen can escape them by departing from his native land. . . . Among the barbarian peoples the personal law was the national law of every man." "The personal laws of the French," remarks Lainé, "are nothing else than their territorial laws following them into foreign countries. Today all laws which are called personal from the point of view of conflict of laws are really territorial laws, that is to say, they are precisely the opposite of the personal laws of the barbarian peoples."

The basis of the notion of personality of law has, in fact, been transformed. Among the barbarians the criterion was the race, while in modern law it is territorial. Its function, however, in our judgment, remains the same, and in one and the other case to a greater or less extent it implies the application of a national law in a foreign country. Among the barbarians it was the law of the tribe while among the peoples of today it is the law of the nation. What has changed is the form of the State; the basis of law in the system of the invaders was the ethnic unit, while in the modern world it is chiefly the geographic unit.

Laurent, Dr. civ. int. I-168.

Race, historical environment, ideas, instincts, prejudices, political interests, national passions,—all these are coefficients with evident influence on the formation of law and in a less direct, but none the less certain manner on the formation of scientific doctrines. In order to estimate the possibility of a reform which would bring about a uniformity of ideas in the teaching and principles of positive law, we must take account of the historic factors. Scientific thought by itself would create nothing but abstract concepts. For example, if we were to try to reconcile the Italian theory of the personality of law and the territorial theory which prevails in the English speaking world, we should have to wipe out all the past of these peoples and erase from the national life of some, centuries of feudal traditions, and from that of others, centuries of Roman traditions.

In private international law we find essential differences between the countries of the civil law and those of the common law, and these differences originate in large part in the historic development of these two systems of law.

"Our English concept of the law," says Harrisson, "preserves us from the fantastic sophism which govern most of the law on the Continent, that is to say, the idea that from international private law we can construct a universal system based on the meditation of juries and imposed by the force of the logical strength on the different tribunals of Europe. For us in Eng-

tical decisions and not dogmatic theories."

"It is of the highest importance," says Minor, "that every question coming to a court for decision shall have a 'situs' somewhere, and, generally speaking, every question which arises will be settled by the law of the State where this 'situs' is located. Whatever interests may be ventilated before a tribunal, whether they have been created by the voluntary action of an individual or have an origin without his voluntary action but rather as a

result of the operation of law, such an interest must have its 'situs' indicated by the individual or determined by the law. Marriage, contract, inheritance, and crime—each of these things has its 'situs,' and it is the law of the 'situs' which governs it.... One of the principles of science is that every state is sovereign within its own jurisdiction. Consequently, every state may forbid the application of foreign laws within its boundaries. It follows that when effect is given to a foreign law it is because temporarily the national law withholds its supreme authority in favor of the foreign law, which, for the moment and with particular reference to a specific case, is converted by the will of the State into its national law."

After the dissolution of the Roman Empire, the variety in law, based on the criterion of race, persisted. From the eleventh through the twelfth century, the commercial relations and the renaissance of Roman Law in the cities of Italy modified the concept of law in the units of civil society which there existed. As Westlake remarks, in the

<sup>1Minor, Conflict of Laws, Boston, 1901, p. 6.

The feudal system brought to the Western World a new concept of private international law.2 This fact was the starting point for two distinct systems of law on the Continent. According to one, the law of the land was to be applied to every controversy, while according to the other, there could be applied to a particular case a foreign juridical principle if the nature of the case so required.

These elements constituted a uniform and exclusive system of territorial law, a closed system in which there was no room for the variety of points of view given expression by French, Italian, Dutch and German jurisconsults in settling conflicts between their several customary or statutory systems.

England remained in this geographic and legal isolation down to the period of revolution. At the end of the sixteenth century the commercial relations between Eng-

<sup>1Westlake, International Law, 4th Ed. p. 15.

Sumner Maine, Ancient Law, p. 108.

Brunner and Hastings, Sources of the Law of England,

acceptance of the principle of comity of nations.

The comitas gentium is still in England and the United States the basis for the application of foreign law. British jurisprudence and that of the United States have been in this regard altogether conservative. In 1895, a decision of the Supreme Court of the United States declared that the principle of reciprocity was an indispensable requisite for the carrying out of foreign decisions for "the comitas gentium of the United States called for nothing more."

<sup>1Cf. Beale, Harvard Law Review, 23; Wharton, Conflicts of Law. 356-357; and New York Code of Civil Procedure, Par. 1756.

The President of the University, in introducing the next speaker, said:

"I believe the greatest force in the country today for the promotion of harmonious intercourse among nations is the Pan American Union. It is always ready to furnish accurate historical knowledge of all the countries of America, and it is likewise always ready to correct false history concerning those countries. It seems that a man to be a successful Director of that Union should possess one of the qualities of a great poet. He has to be born to such a position and cannot be made. The Union at present has a man at its head who certainly seems to be born for the position. He has a wide knowledge of the American Republics, a broad sympathy with their peoples and a geniality which is irresistible. It gives me great pleasure to present him to you this evening in the person of the Honorable Leo S. Rowe, Doctor of Laws, Director of the Pan American Union."

CLOSING REMARKS BY THE HONORABLE LEO S. ROWE, LL.D..

It is, therefore, Mr. Minister, with a deep sense of privilege that I bring to you the warm greetings and congratulations of the Pan American Union.

We realize that in honoring you Georgetown University has honored itself. We greet you as the representative of that spirit of continental co-operation which both you and your country have done so much to develop. Statesman, philosopher, educator, you have ever held before your students and before the people of your country the highest standards of international right and justice. Beyond the personal tribute which this occasion means to you, Sir, we desire to thank you and the members of the distinguished special mission that accompanies you for the honor you have done this country in paying us this visit. Your presence here means much to us, as it means much to the other republics of the American continent, because, aside from the great outpouring of national feeling which the occasion of the presentation of the statue of the Liberator has brought, there is a significance to these demonstrations which I am sure you will carry back with you to Venezuela, and which will also resound to the utmost confines of this continent.

The great national hero whose memory we have honored during the ceremonies of this last week stands forth in the history of this continent as the pioneer of internation co-operation, the first to appreciate the importance of unity of policy and unity of effort as between the republics of the American continent, the first to realize how much such unity of effort means to the peace of America and to the peace of the world. Bolivar's call for the assembly of the First Pan American Congress, which met in Panama in 1826, indicates his large vision, his power to visualize the future and his keen sense of the important part which the republics of America were called upon to play in the history of modern civilization. The high standards which he set during the early years of the nineteenth century have required a long time of painful effort to find acceptance throughout the continent, and it is only the present generation that is beginning to reap the fruits of the great, statesmanlike vision of your distinguished countryman.

And we congratulate you, Sir, as well as those who are accompanying you, that it has been vouchsafed to you to continue, and to express in your own public policy those high standards and ideals for which Bolivar stood, for which he struggled and for which he made the great sacrifice.

The Pan American Union greets you, Sir, not only as the worthy representative of a great country, but as a staunch promoter of those ideals of international justice and fair dealing which should ever characterize the relations of the republics of America with one another and with the world at large.

## Latin America as a Factor in International Relations

## LATIN AMERICA AS A FACTOR IN INTERNATIONAL RELATIONS

T

#### THE PHILOSOPHY OF AMERICAN HISTORY

For the philosophy of American history, using the term American in its broadest continental sense, we must look to the utterances of the great leaders of thought and action. An analysis of their writings discloses two major tendencies representing two distinct schools of thought, one advocating national isolation, and the other, international co-operation, especially as between the republics of the American Continent.

In our own history, the contrast between these two schools of thought is most clearly set forth in the writings of Henry Clay as contrasted with those of John Quincy Adams. During his entire career and, especially during the period that he served as Secretary of State, Clay advocated the closest co-operation between the republics of America. In fact, there lurked in his mind a plan which was never definitely formulated,—to bring about some form of political affiliation, or at least unity of policy between the republics of the American Continent. Adams, on the other hand, looked upon affiliation or anything approaching thereto with distrust, and regarded any such plan as a departure from the settled policy of avoiding entangling alliances. It is a curious fact that in spite of this wide difference of viewpoint, Henry Clay became Secretary of State under Adams and that the documents attributed to these two statesmen, expressing their views on this basic question of foreign policy, were issued soon after the Inauguration of Adams.1

Clay did not hesitate to go so far as to advocate an actual confederation of all the republics of the American Continent, and with a vision prophetic of subsequent efforts, proposed that this union "should wield the force of the confederated states in defense of any member that may be attacked. . . .

'See article attributed to Henry Clay, appearing in the Democratic Press of Philadelphia and reproduced in National Intelligencer, Washington, April 26, 1825; also see Register of Debates in Congress, Vol. I, Part II, page 2363.

Adams,1 on the other hand, cautious and more conservative than his Secretary of State, deprecated "any departure from that cardinal principle in our foreign intercourse which distrusts and rejects alliances with foreign nations, for any purpose."

#### II

"Above all means I desire to see formed in America the greatest nation on earth; greatest, not so much by virtue of its extent and wealth, but by virtue of its liberty and glory."

The broad statesmanlike vision, which characterized the great South American leader, led him to face unflinchingly all the political and social difficulties confronting the nascent republics of the American Continent. He realized to the fullest the obstacles which would have to be overcome before the peoples of America could develop into a truly democratic society. He never allowed his vision to be obscured by formulae or phrases, and he fully appreciated the fact that democracy means far more than a mere form of government, and that unless it has its roots in a truly democratic form of social organization the mere political expression becomes a hollow and empty form.

See National Intelligencer, April 26, 1825.

At the time of the promulgation of the Monroe Doctrine, for instance, the documents of the period show that the leading statesmen of the United States regarded the promulgation of this Doctrine as necessary to the safety and untrammeled development of the republic; a measure calculated to prevent the repetition on the American Continent of the entanglements, jealousies and rival-

ries which characterized the European international situation. To the people of the United States, however, this Doctrine meant far more than a measure of national protection. It aroused enthusiasm because of the service which it was calculated to render to the then struggling republics of Latin America. It was the native idealism of the people that prompted them to give warm support to the Doctrine, an idealism which stands in marked contrast with the more calculating principle of national interest which dominated the thought of the political leaders of the period. The generous impulses that led the people of the United States warmly to sympathize with the struggles for independence of the nations of Central and South America also led to the expression of sympathy with similar struggles in other sections of the world. In precisely the same way we find the nations of Hispano-America, not only warmly sympathetic, but evincing real enthusiasm for the struggles of sister nations for political and civil liberty.

We are here face to face with one of the really great problems confronting the republics of the American Continent. This native idealism of the people must be made more effective in international affairs. The surest means to bring this about is through the establishment of a closer relationship between public opinion and governmental policy; in a word to bridge that tragic gap, which has been the cause of such world disaster;—the abyss between the standards of national opinion on the one hand, and the so-called practical aims of political leaders on the other. This is the true significance of the struggle for the democratization of American foreign policy;—namely, to translate into the real world of international relations, the idealism and generous impulses of the nations of the American Continent. The difficulties, while great, are in no sense insurmountable and the first step toward the attainment of this end is to assure the freest possible public discussion of every question of foreign

policy. The real democratization of government depends not on the indefinite multiplication of elections, but rather on that constant public discussion which crystallizes public opinion and which makes such opinion effective in its control over every organ of government.

### III.

#### SOURCES OF POTENTIAL INFLUENCE

As long as the republics of Latin America remain

This does not imply to the slightest extent any discouragement to the investment of foreign capital. It means the establishment of financial co-operation rather than the present situation of financial dependence.

A change significant of what the future has in store for us is now taking place in several South American countries where, with the combination of North and South American capital, new enterprises are being established and a new spirit of international co-operation developed.

A second step—and one of even greater importance—is the elimination of the spirit of distrust and mutual suspicion which has characterized the relations between some of the republics of Central and South America. No other factor has contributed so much toward preventing the development of anything approaching unity of continental policy. If the American republics hope to acquire a real influence in world affairs, they must eliminate from their international relations every trace of distrust by solving the international questions now pending between them. An united America is a condition prerequisite to an influential America. When in 1902, after definitely settling their frontier difficulties, Chile and Argentina solemnly agreed to a limitation of armaments, an agreement amounting practically to a naval and military holiday for a period of five years, they set an example to the entire continent, demonstrating what can be accomplished when mutual confidence and good faith become the guiding factors in international relations.

#### IV.

#### PAN AMERICAN CO-OPERATION

The principle which I am here defending was strikingly illustrated in the recent International Postal Conference held at Madrid. At this world conference the contrast between the European and the American viewpoint was clearly and almost dramatically presented. European countries, in the desperate financial condition which they find themselves, are seeking every possible opportunity to increase their revenues. On the other hand, the American Republics look upon such services as postal communication in the light of a broad social service, designed to foster closer ties between different sections of the country and to bring about, internationally, closer bonds of friendship and commerce between different sections of the Continent.

The difference of viewpoint was so great, in fact, so irreconcilable, that the only satisfactory solution was the negotiation of a separate convention between the republics of the American Continent (to which Spain and Portugal were also admitted) under which the domestic rate is made applicable to all classes of mail matter between the countries parties to this agreement.

policy, but also as the indication of the principle which should guide their international relations.

Europe stands today under the pall of a great disappointment. People have lost faith in their rulers and

<sup>1Sisley Huddleston.

"War to end war now mocks at us with jeering laughter. . . Nationalism more narrow, more bitter, more selfish than in the world of 1914, has replaced the fleeting hope of many peoples, that there might be a real league of nations based upon the common sense of common folk. . . We have fallen back on cynicism, as nations, as classes, as individuals. There is only one cure for the woes of Europe and our own—not easy, but bound to come unless we are looking for downfall. It is the reconciliation of peoples, burying of old hatchets, wiping out of old villainies and co-operating in a much closer union of mutual help. . . Before that can happen there must come new leaders, new enthusiasm for the ideals of life, a new spirit of unselfishness and service for the common weal:—and just now, we do not see them coming."

#### V

It is here that a great opportunity presents itself to the republics of America. Whether in the accomplishment of this great world mission they are to have the co-operation of the United States, still hangs in the balance, but as to the ultimate decision there can be no doubt. Even without that co-operation, they are now called upon to give to the world a demonstration of the efficiency of the principle of co-operation as contrasted with the principle of force. What Europe was unable to do, America must now perform. She must not fail, for, if she does, the last hope of mankind for a new order disappears. One cannot help but feel a glow of enthusiasm at the opportunity which now presents itself to the younger generation and which must be an inspiration to effort, combined with a high resolve that this great Con-

But, you will ask, what part is the United States to play in this new world order, if new world order here is to be? It is at this point that an important, far-reaching decision confronts the people of this country. They must decide whether their policy shall be continental or selfishly national. Our entry into the European war was a clear demonstration, if any further demonstration were necessary, that the period of America's isolation was at an end, and yet, with the close of the war, we find large sections of our people attempting the manifestly impossible task of resuming a status of isolation which no longer exists and which, in fact, could not exist, given the present economic and financial influence of this country in world affairs.

<sup>1Francis Hackett in The New Republic, May 12, 1920.

Co-operation, therefore, with the republics of Latin America in the development of a unified Continental policy is a matter of interest not only to the future of our civilization, but to the very existence of our democratic institutions. More than this—a policy of isolation means that the United States may become a disturbing factor in the world relations. Such a tragedy, and tragedy it would be, would be all the greater because of the fact that the people of this country are essentially a peaceloving people and that their present insistence on isolation is dictated in large measure by a deeply rooted desire for peace. In other words, the standards of national thought, developed more than a century ago, when isolation meant peace, have been carried into a period in which the radical change of world conditions makes this same demand for isolation a menace to America's peace and may develop into a menace to the world.

We sometimes discuss America as if by some inscrutable and special ruling of Providence she is to be exempt from those inexorable laws that have governed the rise and the decline of other nations. It is for this generation to divest itself of all such illusions. America will be great to the extent to which she points the way and gives the practical demonstration of a better life for the masses of her people and of a better international order as between her constituent parts. Unless she can make that demonstration, she will be recreant to her trust. To the extent, however, to which she meets the manifest requirements of the situation, she will not only be serving herself, but she will save society from the menace which now confronts it. This is the true meaning of "America first"; the true interpretation of a slogan divested of its narrow, selfish, and sordid meaning, and made the servitor of mankind.

LEO S. ROWE.

## THE FAR EAST AS A FACTOR IN INTER-NATIONAL DEVELOPMENTS

CHINA BEFORE CONTACT WITH WESTERN CIVILIZATION

The great central factor in the Far Eastern situation is China. Not only is her own established civilization in itself of the highest importance, but the temper, aims and policies of this vast population will deeply affect the

tuture development of human history.

China has but recently come into relationship with the rest of the world, and particularly with the western nations. Up to the middle of the nineteenth century she was a world by herself; the extent of her territories, the abundance of her resources and the completeness of her economic life made her self sufficing. She had retained a high pride in her civilization from the ages when the nations of the west were still barbarian. This tradition of superiority was preserved in Chinese thought and expressed itself in action, negatively through a refusal to have anything to do with outside nations. The Chinese constituted a great autonomous society to whom the outside world was indifferent. It was a society in which social and economic activities were all important and which cared and knew little about political action in the sense in which it was developed in the Western World.

for the reason that a nation of political action and political organization, as it had developed in the West, was not understood by the Chinese that they were ready to commit themselves to so many undertakings that turned out to be highly disadvantageous to them. The foreign representatives were regarded as troublesome individuals, disregardful of the social consideration customary among the Chinese, given to making threats of brutal force. The Chinese negotiators, having in the past always arranged affairs by temporary compromises, which was not dangerous as long as the affairs were merely local, applied the same tactics to international negotiations, with the result that they gradually committed their government to very onerous obligations.

A dim but intense consciousness among the Chinese people that their country was being manacled led to the outbreaks of 1900. This popular movement of protest was indeed originally directed against the Manchus as much as against the foreigners, but it soon was gone partly through the manipulations of the court and its anti-foreign character. The result was the establishment of co-operation among all the foreign powers interested in China for the defense of the rights acquired in the past decades. This solidarity naturally tended to fix permanently upon China all the privileges which had been gained by any one of the foreign nations. They claimed them all for their own nationals. The more liberal powers were desirous of making concessions to China and strengthening her government and preserving her independence, but were confronted by the refusal of other powers to give up any of the rights acquired. Thus, it worked out that in any controversy the determining influence lay with the power determined to make no concessions.

#### PRESENT DAY CHINA

civilization and its predominating influence in the life of the Far East, China is the essential factor in the Far Eastern situation. Through persistent reports of revolutions and other internal trouble, the outside world is apt to receive the impression that China approaches a state of confusion and anarchy, such as visited Mexico in the worst days. Yet such is not the case, and the situation is essentially different. China is just at present subject to the devastations of a great natural catastrophe holding the danger of famine and death of millions; yet aside from this natural disaster, her social and economic life is sound. The political troubles which we hear so much about are on the surface. They are squabbles between politicians and military commanders which do not reach deep into the life of the people. The normal activities of life, in agriculture, industry and commerce, go on uninterruptedly, and no matter how weak the government may be at times, the social system is strong and sound. In fact, there is today no nation in the world where fundamental social conditions are so stable.

China has at all times been non-political. In her life such impersonal, abstract ideas as sovereignty, legality, corporate existence, have not played any important part. The relationship of Chinese society have all been concrete and personal. Men have been found with a personal tie to their fathers and brothers, their wives and children, their clansmen, their teachers and the officials, in an ascending order. There was never developed a strong central administration. The union of the country was one of traditions and culture, particularly literary and philosophical rather than of legal institutions. Politically considered, it was, and still is, a loose federation of provinces, in which the localities manage their own affairs, and in which the popular loyalties are nearly all attached to local, personal and visible entities.

The tradition from this system of strong personal relationship to the impersonal ideas which underlie the Western system of law, representative government and

The youth of China is at present animated with the desire to build up a strong national system, utilizing the methods of the West. The national movement, which was organized in 1919 by students and merchants, seeks to make the ideal of national cohesion a reality. In the past, the great strength of the Chinese people has lain in the management by each local community of its own affairs, and the enormous power of tacit resistance to any unwelcome changes or demands from above or from without. In China it has been practically impossible to put through a change which the people did not accept; but the people were not organized for positive action through public opinion or through representative institutions. For the first time in Chinese history the attempt is now being made to organize a positive expression of the popular will. The actual power of government in the larger units is in the hands of the military governors of provinces. There is a struggle between this authority, resting on corruption and force, and the inherited and newly-developed desires for self-government.

China has a pacific, ethical civilization; that is, a civilization which rests not on an appeal to authority based on force, but on a universal sense of equity which expresses itself constantly in popular action, without recourse to formal tribunals. The critical question of today is, can this ethical content of Chinese civilization be preserved while national action is strengthened through the adoption of efficient methods developed in the West; or will the people of China be driven into militarism by outside aggression, and through the manipulations of the satellites and instruments of an outside militarist power? To the outcome of this great crisis America cannot be indifferent. The temper of the great

During the Great War the neighbor of China, the Japanese Empire, utilized every opportunity to strengthen her position and interests in China. Immediately after the outbreak of the war the German leasehold at Tsingtau, with a railway extending into the interior, was seized by Japan, with the initial declaration that these concessions would be eventually returned to China. In January, 1915, the Japanese Government caused a list of twenty-one demands to be secretly presented to the President of China. The demands included both concessions of special right in certain localities and, in the fifth group, general rights of participation in the exercise of sovereign powers in China. The demands were finally enforced in May, 1917, through an ultimatum threatening the use of force, with the exception of the fifth group which was postponed for future action.

When the United States broke off diplomatic relations with Germany the Chinese Government, in February, 1917, decided to follow the same policy. There were no demands, promises or urgent representations, there was no haggling about advantages to be obtained. After a brief but careful consideration of the proposal of the United States, it was accepted by the free act of the

Chinese Government. At the very time when the Chinese were making this decision, the Japanese Government approached the governments of Russia, Great Britain and France with the suggestion that it would use its influence to bring China to the side of the Allies, on condition that the German rights in Shantung were assured to Japan. China broke off relations with Germany in February, 1917, and declared war in August, 1917. The Chinese Government was ready to send large bodies of troops to Europe, but the transportation difficulties at the time prevented such movements. Had the was lasted longer, China would undoubtedly have become an important source of men and supplies.

After the armistice the Chinese nation entertained the confident expectation that the German rights in Shantung would not be given to any other power, but would revert to China in accordance with equity and the accepted principles of international law, China being ready to indemnify Japan for all her expenses. But the peace conference awarded the ex-German rights to Japan. China did not agree to this transfer and it is therefore not legally valid, as, by the operation of international law, the Shantung rights had reverted to China when she declared war on Germany in August, 1917. The secret agreements made by certain Chinese officials with Japan, to the contrary effect, were not recognized by the Chinese nation, as having been made without the consent of a national representative bedy.

hundred square miles of unimportant land; retaining the highly valuable port of Tsingtau, with its steamship and railway terminals, the railway to the capital of the province, and the mining rights taken from the Germans. As these are the really important factors through which the commercial and political control of the whole province can be effected, the Chinese people are not interested in the proposal "to return the Shantung leasehold." The language used has given the impression to many that Japan had seized the entire province of Shantung, and was generously offering to return it to China. Neither Germany nor Japan, however, at any time had any right to the province of Shantung, outside of the leasehold of Tsingtau and the railway, with the adjoining mines. Should Japan retain the railway, it was apprehended that a situation would be created similar to that which obtains in Manchuria.

## CHINA, JAPAN, AND SIBERIA

The joint intervention of the Allied Powers in Siberia in 1918 led to the occupation of parts of Eastern Siberia by Japanese troops, which still remain there though the other allies have withdrawn their contingents. While government is not strongly organized in Siberia, yet the authority of the government of Chita being constantly extended, and it gives promise of stability. In a measure as its power grows, it demands more insistently the withdrawal of Japanese troops from Russian soil. While the Chinese Government has not established diplomatic relations with the Siberian Government, it has found it necessary to make certain arrangements concerning commerce passing the common boundary between these two countries. The Siberian Government has expressed itself favorable to returning to China, concessions made to the Czarist Government of Russia; but such treaty revisions have of course not yet been taken up in actual negotiations. There undoubtedly exists between

International joint action in China is favored by the creation of the financial Consortium, which has completed its organization and is now beginning to negotiate with the Chinese Government for financial support to be given constructive public enterprises in China, such as the building of roads, railways, harbors and canals. It is recognized that the prime need of China lies in the direction of better means of communication. Meanwhile, both locally and through the Central Government, the Chinese are beginning with their own means and in cooperation with foreign capital, to execute comprehensive improvements of this kind.

PAUL S. REINSCH.

T

#### THE GENESIS OF AMERICAN FOREIGN POLICY

It is probably no exaggeration to say that no single event in modern history has exerted a greater influence upon the development of international relations than the advent in 1776 of the United States of America into the family of nations. That event was epoch-making not only because it marked the birth of a new world power, but because the principles of thought and action upon which our existence as an independent nation was justified created a new departure in theories of government. History has been described as the philosophy of hind-sight. Reviewed in the light of the facts which gave rise to the American Revolution and which dictated the course of our subsequent career, no people will be found to have adhered more closely to a consistent principle of conduct both in domestic and foreign affairs than the people of the United States.

To evaluate the factors which fashioned the popular mind in 1776, and led to the principles enunciated in the Declaration of Independence and subsequent expressions of national policy, it is necessary to take into account the origin and circumstances of colonial life in America. Groups of sturdy pioneers had hewed out of the wilderness the materials of civilized life in the face of dangers unknown to the inhabitants of European communities. The distance from the home-land, the democracy naturally created by subjection to common problems and dangers, the self-reliance and individualism induced

by the very nature of their effort, aroused in the colonists a craving for freedom and independence. There was born in them a devotion to self-government which a sagacious mother country, under what Burke called a policy of "wise and salutary neglect," had not sought unduly to hamper. But such measure of local political freedom as the colonists enjoyed made the more intolerable the system of commercial colonial monopoly which restricted their trade almost entirely to Great Britain, in ships of that country. The feeling of dissatisfaction aroused found nourishment and justification in the philosophy of the French disciples of the doctrine of natural rights, with its opposition to governmental and ecclesiastical oppression. With this philosophy of freedom from imposed control, which permeates the Declaration of Independence, the moral justification for political, commercial and intellectual emancipation had been found. Moreover, the colonists had been parties to practically every European war of the eighteenth century, of which they were on occasion the unwitting cause and usually the unwilling victims.

Bearing these facts in mind, it is readily apparent that the American Revolution was a protest in the name of liberty against that political, commercial and intellectual bondage which was then identified with the European systems of government. It is not surprising, therefore, that the fundamental and dominant principle of our domestic and foreign policy has been emancipation from European political systems.

It requires but slight acquaintance with history to recognize that national self-interest is the primary source of any national policy. Of its various manifestations, the instinct of self-preservation or security is the most insistent. The measures for safe-guarding this fundamental interest are likely to be dictated principally by physical conditions, notably geographical position. Foreign policy, controlled by such rigorous and unchanging

Yet the very obligations sought to be imposed on us by that treaty led, in 1793, to a reiteration, in an epochmaking proclamation of neutrality, of our principle of aloofness from European wars, furnished the motives for Washington's Farewell Address, and finally caused that limited war with France from 1798 to 1800 which gave rise to the French Spoliation Claims. A proffered treaty of alliance with Spain, in which we undertook to attack Portugal and offered various concessions in return for political aid, but indicates, by countenancing so serious a departure from principle, how great was the need of the struggling colonists. The flexibility of the policy was again demonstrated by the readiness with which the United States undertook to adhere to the Armed Neutrality of 1780, proposed by Catherine of Russia.

These variants each had special motives; but nothing better demonstrates the inherently fundamental nature of our policy than the prompt return to it after momentary occasion for departure has passed.

should be as little as possible entangled in the politics and controversies of European nations."

The consistency of our foreign policy is exemplified by our application of what is known as the principle of "non-intervention," which has been deemed basic in our foreign relations. John Hay once said: "The principles which have guided us have been of limpid simplicity."

of American Diplomacy."

#### II.

#### NATURE OF EARLY AMERICAN POLICY

It is probably a fact that the necessities of a united front in foreign relations, as exemplified, for example, in the Treaty of 1783 and the need for its enforcement, exerted as much influence as any other single factor in compelling that union of interests and charter of common action among the states of the Confederation which is now embodied in the Constitution of the United States. Foreign relations and domestic affairs have always been interdependent, and it is no accident that the great names of the founders of the country are identified as much with foreign as with domestic affairs.

filled in perfect good faith. Here let us stop.

While this state paper clearly indicates the American aversion to implication in the alliances and artificial ties, the balances of power and kindred paraphernalia of European political systems, Washington had no illusions that "extraordinary emergencies" might not implicate us, and for these he thought "temporary alliances" would suffice. It will be noted that the extension of commercial relations was definitely encouraged. If my judgment is correct, that the so-called "League of Nations" created at Versailles is in essence little more than a disguised alliance to maintain the balance or preponderance of power, in the time-honored fashion of European politics, then Washington's advice, the soundness of which is but confirmed by the practice of more than a century, clearly points the direction of the duty of the American people.

## III.

#### MONROE DOCTRINE

Washington's pronouncement of the principle of nonintervention in European politics, foreshadowed its celebrated correlative of a generation later, the Monroe Doctrine. Only in the light of the background portrayed above, can the Monroe Doctrine, perhaps the most notable enunciation of American principles of foreign policy, be either understood or appreciated. Its importance for us in determining the influence of the United States on international relations and the various meanings ascribed to it as a justification for diplomatic positions assumed on occasion by this country warrant a somewhat detailed examination of its origin and present scope.

The occasion of the Monroe Doctrine was the threat of the Holy Alliance to assist Spain to recover her American colonies, and the effort of Russia to extend her northwestern boundary in America. The Holy Alliance, formed by Russia, Prussia and Austria to express in solemn chastizement, under the name of the "League of Peace" the horror of God and King against such blasphemies upon law and order as the French Revolution and any other revolution, had commissioned France, which had adhered to the Alliance, to restore the Spanish crown to Ferdinand, from which the people of Spain had but lately relieved him. Canning, the British Secretary of State for Foreign Affairs, having been notified by France that her successful mission in Spain had induced her to consider obedience to the call of duty by proceeding to restore the Spanish crown in America, and realizing that the restoration of Spanish authority or

the substitution of France would, by renewal of the then customary colonial trade and navigation monopoly, seriously injure the growing commerce of England with the new Spanish-American states, approached Richard Rush, American Minister in London, as to the possibilities of a joint declaration by the two nations against the intervention of the Allies in Spanish America. Reputable historians have stated that, aside from the fear of French aggrandizement and the loss of British trade, another dominant motive with Canning was the realization that the opening of hostilities between the Allies and the South American states would cause a declaration of commercial non-intercourse between those states and Europe, which would but redound to the advantage of the United States. The British Cabinet had, in fact, already decided that they would not permit France to engage in the heroic yet not altogether disinterested mission she contemplated; but hoped that British action to that end might become unnecessary by the United States and Great Britain assuming an identical position discouraging French plans.

The United States had already recognized the independence of most of the Spanish-American states, when Mr. Rush's correspondence with Canning and his request for instructions reached the United States, in the fall of 1823. A profound impression was created. Never was a declaration of policy more deliberately formulated, nor better counsel sought. The correspondence was sent by President Monroe to Jefferson and Madison for an expression of their judgment, and John Quincy Adams, then Secretary of State, submitted it to other leading public men of the country. It was on this occasion that Jefferson made his famous statement that while independence made us a nation, this proposed declaration "sets our compass and points the course which we are to steer through the ocean of time opening on us. Our first fundamental maxim should be, never to entangle ourselves in the broils of Europe; and our second, never to

suffer Europe to intermeddle in cis-Atlantic affairs." Jefferson, Madison and Monroe, feeling that the declaration sought confirmed these aims, were in favor of making the joint proclamation suggested by Canning. Adams, however, opposed it. He entertained a suspicion that England's request for a joint pledge that "we could not see any portion of (the former Spanish colonies) transferred to any other power (than Spain) with indifference," was directed equally as much against the interference of the United States as against that of the Holy Alliance. In his Memoirs, Adams says: "By joining with her, therefore, in her proposed declaration, we give her a substantial and perhaps inconvenient pledge against ourselves, and really obtain nothing in return."

The formal answer to Canning's suggestion and to the plan of the Holy Alliance, which also served notice on Russia, was contained in President Monroe's Message to Congress of December 2, 1823. The policy then announced, which has come to be known as the Monroe Doctrine, was substantially formulated by Adams. Its

"The occasion has been judged proper for asserting as a principle in which the rights and interests of the United States are involved, that the American continents, by the free and independent condition which they have assumed and maintain, are henceforth not to be considered as subjects for future colonization by any European Powers. . . The citizens of the United States cherish sentiments the most friendly in favor of the liberty and happiness of their fellow-men on that side of the Atlantic. In the war of the European Powers in matters relating to themselves we have never taken any part, nor does it comport with our policy so to do. It is only when our rights are invaded or seriously menaced that we resent injuries or make preparation for our defence. . . The political system of the allied powers is essentially different in this respect from that of America. . . And to the defence of our own, which has been achieved by the loss of so

The doctrine was by no means an altruistic statement of principle. Although expressing high moral tenets of liberal thought, it is inspired essentially by the motive of self-preservation and rests upon self-interest. That interest was deemed to be threatened by any further colonization of European powers on this continent or the control or acquisition by them of any additional American territory. Canning, although he had invited it, pronounced the Doctrine "very extraordinary" and reserved Great Britain's full privilege to colonize any unappropriated portions of America. Curiously, although the Doctrine, as a unilateral declaration of policy and notice to the world that certain acts done by foreign countries outside the borders of the United States would be deemed an affront by us, could probably not, until recent years, have been maintained without the support of Great Britain, it has been most frequently challenged by that very power.

It will have been observed that the Monroe Doctrine sums up and reiterates in striking language the cardinal principles of American foreign policy—non-intervention, neutrality, recognition. Non-intervention, based on the separation of the two hemispheres, was to be reciprocal. Our neutrality in European quarrels was to be preserved. Recognition was to depend upon an objective standard, the de facto nature of the government in power.

of the members of the Holy Alliance, the raison d'etre of the Monroe Doctrine has been lost. But this is hardly true. It is directed not merely against particular obnoxious forms of government, but against the European political system, by which was meant the groupings, associations and collective policy of European governments. Any effort to bring an American nation within the sphere of those groupings and thereby exercise European political influence in the Americas in new areas would doubtless be deemed an infringement of the Monroe Doctrine. The League of Nations has not yet seriously raised that question; but its attempted intercession between Costa Rica and Panama in their present dispute aroused some resentment in the United States.

Under an accepted definition of the Doctrine, first pronounced by President Polk in 1848 in relation to Yucatan, a Latin-American state could not even with its own consent come under the domination of a European power. This went much beyond the declaration of Monroe, who expressly asserted the privilege of American states, whose independence had been acknowledged, to dispose of themselves as they saw fit. In 1870, after San Domingo had invited and then rejected control by Spain, President Grant declared: "No European power can acquire by any means—war, colonization, or annexation—even when the annexed people demands it, any portion of American territory."

The exuberance of expression which is occasionally excited in the American by the uninterrupted and successful exercise of power is not better illustrated than by the bold statement of Secretary of State Olney, usually considered a quite conservative man, at the time of the Venezuelan boundary controversy with Great Britain. He then said: "Today the United States is practically sovereign on this continent and its fiat is law on this continent upon the subjects to which it confines its interposition." John Bassett Moore, in commenting upon this expansive assertion, says:

"Surely it must be admitted that no declaration more imperialistic was ever made by an American statesman; nor is its imperialistic lustre dimmed by the explanation, which Mr. Olney proceeds to make, that this paramount position of the United States on the American continent is due not simply to its high character, or to the fact that wisdom and justice and equity are its invariable characteristics, but also to the circumstance that its infinite resources combined with its isolated position render it master of the situation and practically invulnerable as against any or all other powers! Incidentally, it was this Venezuelan issue which persuaded Admiral Mahan to say that he had changed his mind concerning the inconceivability of war with Great Britain."

A more recent extension of the Monroe Doctrine was undertaken by President Roosevelt in 1907 in assuming control of Santo Domingo when foreign powers were pressing for payment of their claims and threatening the seizure of custom houses. The United States, by treaty, under what Roosevelt considered the responsibilities of the Monroe Doctrine, assumed fiscal administration of Santo Domingo and has since extended, for somewhat the same causes, an even greater degree of control over Haiti. Indeed, Santo Domingo itself has since come under police and fiscal control. The United States now exercises a quasi-protectorate over Nicargua and Panama. We own Porto Rico and some other islands. In Cuba and several other of the above mentioned states supervision of their debt limits and the reserved privilege of intervention for the maintenance of civil government serve to extend American control over a considerable portion of the Caribbean. But it can, I think, be fairly asserted that, aside from occasional unauthorized transgressions of resident officials, who thereby do this country grave harm, we have not abused our position in the Caribbean countries, and our imperialism, if such it be, has not been of an unduly exploiting type. Whatever reserved control we exercise, the largest possible measure of self government should accompany these administrations.

Our expansion southward has given rise to some fears on the part of Latin-American countries of an all-absorbing appetite of the United States for additional territory. It has brought forth bitter criticisms of our interpretation of the Monroe Doctrine, under which, while insisting upon European abstention from any control in the Latin-American states, we decline to consider the Doctrine as a self-denying ordinance upon ourselves. The only answer to this criticism is that the United States has not exhibited in recent years any serious intention permanently to acquire additional territory in Latin America, and that, in view of our preponderance of power, the Cuban enterprise manifests a certain national self-restraint. Intervention in Mexico would probably be unpopular among the American people, and

if accompanied by any territorial accessions, might be considered by most nations as a moral stultification of our professions in the recent war. Only the moderation and general acceptability of our conduct will obtain acquiescence in our enterprise from foreign countries, and "a decent respect for the opinion of mankind" will be found ultimately as essential to nations as to individuals.

#### v

#### FOREIGN VIEWS ON THE MONROE DOCTRINE

It may be asked how such a frankly egotistical and occasionally arrogant assertion of policy as the Monroe Doctrine has received acceptance by the world. Bismarck called it an "international impertinence." European writers and statesmen have never tired of denying that it is a principle of international law. I do not believe the United States has made this claim. But without taking such a position it must not be overlooked that the assertion of jurisdiction and long-continued acquiescence therein by others is known to establish a good title both in private and public law. Contrary to President Wilson's recent statement that the acceptance of the Monroe Doctrine as a "regional understanding," whatever that may mean, constitutes the first recognition by Europe of the Monroe Doctrine, it may be said that in 1903 the Duke of Devonshire declared, "Great Britain accepts the Monroe Doctrine unreservedly," and that is probably the official view, in deed if not in word, of all the European countries.

Ultimately, of course, its validity rests upon our might and power to enforce it. But that is not its only justification; it is an expression of one of the most elemental conditions and principles of international relations, the balance of power. Few persons realize the pervasiveness of this principle in human relations, for it operates with as unerring a precision, though sometimes only vaguely perceptible, as a law of nature. In Europe, with its compact groups of enemy nations, the balance of power, rooted in the sense of insecurity, seemed to present the only hope of occasional periods of peace. In the division of our free and slave states before the Civil War, we acknowledged, unconsciously perhaps, the operation of the principle. The Monroe Doctrine expressed an American balance against Europe, in the maintenance of an international equilibrium. Should Asia become powerful, it may require revision. Its maintenance has doubtless been aided by European quarrels—it was this which enabled Seward to spoil Maximilian's Mexican adventure in 1866—and by the fact that an American enterprise could hardly have been risked by a European power in the face of the delicate position of European relations in the nineteenth century.

Our acquisition of the Philippines has been said to weaken the Doctrine, but, after all, that assumption rests upon the acquiescence of the United States. However, much that enterprise may have trangressed Washington's precept and whatever consequences it may still have, the Monroe Doctrine is flexible enough to accommodate slight variants, even if we admit this to be one. The Lodge Resolution of 1912, though not approved by President Taft, which looked to inhibiting the acquisition by any foreign power of any harbor or place on the American continent that might threaten the safety of the United States—Japan was then primarily intended—is an expression not necessarily of the Monroe Doctrine, but as Senator Lodge said, of the fundamental principle of self-preservation upon which that Doctrine rests. Experience has established, that the Monroe Doctrine does not estop us from participating in the affairs of Asia, although it seems equally clear that it is deemed by us efficacious to keep any control by Asiatic powers out of America.

The lesson to be drawn from this portrayal of the ex-

pansive capacity of the Monroe Doctrine is that a certain tolerance in international relations is necessary. It is one of the most elementary of human weaknesses to identify your own cause and interest with the principles of right and justice, and to believe that your own motives are higher and purer than those of others. Probably nothing has caused more distress and suffering than the reciprocal action of nations upon these assumptions. For although it seems axiomatic that no one can fairly be party and judge at the same time, the international legal system is so constituted that it authorizes each nation to be the judge of its own cause and to act upon its own conclusions in its own way. International law then legalizes the physical consequences.

The same growth in power and function that we have seen in the Monroe Doctrine is evidenced in the attitude of the United States toward an interoceanic canal in Central America. When Senator Clayton—upon whose ineptitude as Secretary of State in signing the Clayton-Bulwer Treaty of 1850 Stephen Douglas partly built his reputation as an orator—declared in the Senate that the United States had no power to build a canal outside the United States, he was not contradicted. Yet after the Civil War, which galvanized the power of the central government into an effectiveness then undreamed of, few people questioned the propriety of an American-built canal under exclusive American control. When finally President Roosevelt collaborated in the establishment of the Republic of Panama, acquiring in partial compensation a strip of territory for canal purposes, the act was acclaimed as a providential recognition of the mission and destiny of the American people. A treaty with Colombia, now pending, is designed to assuage injured feelings.

In 1836, Texas declared her independence and in 1845 was annexed. Then came the war with Mexico and the acquisition of California and New Mexico, and the Gadsden Purchase. "Fifty-four degrees forty minutes or fight" ultimately gave us a northwestern boundary at 49 degrees without a fight. Finally, Alaska, Hawaii, Porto Rico, and the Philippines—whose acquisition was not premeditated—and numerous islands in the West Indies and in other parts of the globe, round out an empire that widely exceeds anything the founders could have dreamed of. The late Champ Clark's optimistic prophecy that Canada would some day be a part of the United States, although not original with him, made Canada so shy that she disapproved the reciprocity agreement of 1911.

The responsibilities of managing so vast an estate are possibly greater than any advantages accruing therefrom. It is the outposts of empires that have often led to collision with the conflicting interests of other nations. One can only hope that the United States will so use its power as to create universal confidence that it holds, not a prize for national exploitation, but a trusted mandate for the civilized world.

sentiment for solidarity did not alone depend on such material basis. Better acquaintance made North Americans realize the virtues of the Latin American culture, as well as the fact that their more progressive countries had reached a position to which an attitude of protection was utterly inappropriate. Under Blaine's initiative the first International American Conference convened in Washington in 1889; it was succeeded by others at Mexico in 1901, at Rio Janeiro in 1906, and at Buenos Aires in 1910, and only the European War has prevented others. The results achieved in the form of treaties of arbitration, of naturalization, and on various commercial subjects such as patents and trade-marks, have not been negligible; but their primary result was to enable the states on this continent to discuss matters of common interest and establish the necessary contacts.

The financial difficulties occasioned by the outbreak of the war caused the calling in 1915 of the First Pan-American Financial Congress, and those occasioned by its close, the calling of the second in 1920. The most noteworthy event of the first congress was the establishment of the International, now Inter-American High Commission, which is conducting the most effective work in the promotion of common interests. Already it has obtained ratification for numerous treaties, providing for the establishment of an international gold clearance fund; facilitation of the work of commercial travellers; the arbitration of commercial disputes; and for the mutual protection of patents and trade-marks. The movement to strengthen the solidarity of interests, which the building of the Panama Canal has greatly enhanced, is certain to grow; and the dominance of the United States will be gradually tempered, as it already is beginning to be, by the growth in power of the major republics of the Pan-American Union.

#### THE MONROE DOCTRINE AND THE FAR EAST

But the real difficulty in our diplomatic relations, if such it be, arises not in California, but in China. Japan's growing population and the need for foreign markets has caused her to penetrate Manchuria, and the twenty-one demands on the Chinese government in 1915 indicate a policy of establishing her hegemony in China. This she has endeavored to insure, notwithstanding its apparent violation of the "open door" principle, by obtaining agreements from the western powers in the nature of estoppels. Why the United States ever signed such a vague instrument as the Lansing-Ishii agreement, which is more likely to create than to allay trouble, is not

yet known; doubtless war exigencies were responsible. Japan, significantly said Count Motono, is in a better geographical position to interpret the agreement than the United States.

More recently, Japan's efforts to assert and retain jurisdiction in Shantung, contrary to pledges formally given, have created an unfavorable impression in the United States, although, unfortunately, it is courting error or disappointment at any time to test international conduct, usually inspired by motives of national self-interest, by the ordinary standards of morality. Japan's still more recent assertion of jurisdiction, under a League of Nations mandate, over the island of Yap, through which passes the cable connecting the United States with the Far East, brings to a close a long series of contested issues whose sober consideration by both countries does credit to their mutual sense of tolerance and forbearance. The often repeated slogan of our "mastery of the Pacific," to which Roosevelt in an ebullient moment, once gave exultant expression, is, in theory and ought to be in fact, a myth; one might suppose that the Pacific Ocean is large enough to permit both nations to exist and maintain interests there.

It will have been observed that in the Far East the principle of "non-intervention" is conspicuous by its absence.

But Europe today is desperate. By every method of inducement known, by appeal to our sympathy, generosity, appreheusion, gratitude, cupidity, she is seeking to persuade us to liquidate the consequences of her unfortunate system of conducting international relations. I cannot blame her; it is the instinct of self-preservation that speaks. But while we cannot, in view of our own vital interest in the restoration of Euorpe, assume that indifference which the Swedish Ambassador in London suggested to John Adams in 1782: "Sir," said he, "I take it for granted, that you will have sense enough to see us in Europe cut each other's throats with a philosophical tranquillity"; nevertheless, it would be a mark of national immaturity to disregard Washington's injunction against passionate attachments for some nations and inveterate antipathies to others. Our safety and our self-respect lie in the cultivation of the Jeffersonian precept of "honest friendship with all nations, entangling alliances with none."

## VIII

INDIRECT INFLUENCE OF THE UNITED STATES ON WORLD POLITICS

The advent of the United States into the family of nations was not only of immediate consequence to the

The rivalry of the European nations aided greatly in securing admission for the United States into the family of nations, for France, Holland and Spain found therein an opportunity to gratify historic grudges against England. Whether the governments that thus in varying degree welcomed us had no occasion for regret may be doubted; for the independence of a colony in America could not leave Spain unaffected, and the French monarchy always believed, doubtless correctly, that the inspiration of the French revolution was found in America. The United States, therefore, grew to nationhood, not merely by virtue of its inherent strength, but by reason of the mutual distrust and conflicts among the principal powers in Europe. The statesmen of that day knew how to seize and employ the opportunities afforded by existing conditions; and it is to their foresightedness in evaluating and estimating these conditions that our successful adolescence is primarily due. For the policies of this government down to 1820 were fashioned and developed out of the political conditions prevailing among the states of Europe.

(a)

#### NEUTRALITY

As the Revolution could not be promptly suppressed, some of the European governments felt it necessary to intervene, and when England's entrance into the conflict in 1793 made it a maritime war, the American government had to make its great decision. The result but reveals the high calibre of men who then governed the

country.

"They understood that the peaceful demonstration of the beneficence of their principles, in producing order, prosperity, and contentment at home, was likely to accomplish far more for the cause of liberty than an armed propagandism, which perchance might ultimately degenerate into military despotism."

"As it was the right of every nation to prohibit acts of sovereignty from being exercised by any other within its limits, so it was, he declared, the duty of a neutral nation to prohibit such as would injure one of the warring powers. Hence, 'no succor should be given to either, unless stipulated by treaty, in men, arms, or anything else, directly serving for war.' The raising of troops and the granting of military commissions were, besides, sovereign rights, which, as they pertained exclusively to the nation itself, could not be exercised within its territory by a foreign power, without its consent; and if the United States had 'a right to refuse permission to arm vessels and raise men' within its ports and territories, it was 'bound by the laws of neutrality to exercise that right, and to prohibit such armaments and enlistments.'"

The neutrality proclamation of April 22, 1793, was epoch-making, for it fixed what seemed until recent times the immutable policy of the United States toward European wars. It did not use the word "neutrality," for Jefferson believed that an avowal of permanent neutrality should not be bartered away without concessions from the belligerents. The proclamation was actually drafted by Randolph, Attorney General, and announced that "the duty and interest of the United States require that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent powers." Citizens were warned against joining in the

hostilities, that they carried contraband at their risk alone, and that violations of the law of nations within American

In view of the vagueness as to what were at that time neutral rights and privileges, it is not surprising that the budding commerce of America paid a heavy price for the prevailing uncertainty and the unwillingness of each of the belligerents to permit American vessels to trade with the other except under severe restrictions. There was no agreement as to what constituted contraband or blockade. Between paper blockades and the unlimited extension of contraband lists, the fate of the neutral's trade seemed precarious. The rule that enemy goods, not contraband, on a neutral ship, were exempt from seizure, enunciated by Frederick the Great under the name "free ships, free goods" and embodied in the Armed Neutrality of 1780 and in the treaty concluded by Benjamin Franklin with Prussia in 1785, was still far from receiving general acceptance; its ultimate persistence and inclusion in the rules of international law are in no small degree due to American effort.

States the acceptance of commissions, the enlistment of men, the fitting out and arming of vessels and the setting on foot of military expeditions in the service of any government or people against a government with which the United States was at peace. Compensation was provided for in the Jay Treaty for those British subjects who had suffered damages from our failure to prevent French privateers from violating our neutrality, a precedent from which we reaped great advantage some eighty years later in the settlement of the "Alabama" claims of American citizens against Great Britain. Hall, the well-known English authority on international law, says of the attitude of Washington's administration:

Not long after the proclamation of neutrality of 1793 began that reciprocal retaliatory promulgation of Orders in Council and decrees by the English and French governments which made neutral commerce subservient to belligerent expediency. Only the difficulty of determining which belligerent was doing us the most injury, our military weakness and the realization that participation in the war would be more disastrous than helpful to our commerce, persuaded the statesmen of that day to overlook the many provocations to war and adopt negotiation instead. Each belligerent acted, with little qualification, upon the principle asserted by Great Britain during the recent war, namely, that if one belligerent is allowed to make an attack upon the other regardless of neutral

(b)

#### RECOGNITION

"We surely cannot deny to any nation," said Jefferson, "that right whereon our own government is founded—that everyone may govern itself according to whatever form it pleases, and change these forms at its own will; and that it may transact its business with foreign nations through whatever organ it thinks proper, whether king, convention, assembly, committee, president, or anything else it may choose. The will of the nation is the only thing essential to be regarded."

Jefferson prescribed no particular tests by which this national will was to be ascertained, whether election or acquiescence. The mere continued existence of the new government for a reasonable length of time and its fulfillment of the functions of administration within a considerable portion of its territorial limits was presumably a sufficient demonstration of its ability to express a national will

Down to the Civil War it had been a boast of our national tradition to be the first nation to recognize a new government that had manifested its capacity to maintain the spark of life. The precedent was laid with the revolutionary governments of France, beginning in 1792, and was acted upon in South and Central America and in various countries of Europe, even with respect to new monarchies. We were among the very few governments to recognize Don Miguel as King of Portugal. Reasons for recognition rather than excuses for not recognizing de facto governments, were sought. A revolution arousing international concern was not denominated a "domestic question" of the parent state. President Pierce in his message to Congress of May 15, 1856, in explaining the reception of a new minister from Nicaragua, summed up a long line of distinguished precedents when he said:

the country, and with reserve only of time as to the recognition of revolutionary governments arising out of the subdivision of present states with which we are in relations of amity. We do not go behind the fact of a foreign government's exercising actual power to investigate questions of legitimacy; we do not inquire into the causes which led to a change of government. To us it is indifferent whether a successful revolution has been aided by foreign intervention or not; whether insurrection has overthrown existing governments and another has been established in its place, according to pre-existing forms, or in a manner adopted for the occasion by those whom we may find in the actual possession of power. All these matters we leave to the people and public authorities of the particular country to determine; and their determination, whether it be by positive action or by ascertained acquiescence, is to us a sufficient warranty of the legitimacy of the new government."

The Civil War produced many changes in the spirit and the constitutional development of the United States, the effects of which cannot yet be fully established. Among the earliest and most obvious effects, however, was the change in attitude assumed toward the recognition of new governments and states. The unprecedented effort of a large section of the country to establish an independent government shook to its foundations some of our most cherished theories. Seward saw in this attempt no principle of self-determination, but a treasonable and seditious effort to subvert the constitution. He at once exerted every endeavor, by contesting the legality of the Confederate Government, to prevent foreign governments not only from recognizing its independence, but even its belligerent character. We now find the curious historical freak of Europe acting on the American theory de facto possession of power as the criterion of recognition, and Seward supporting the European theory of legality or legitimacy. The diplomatic controversy resolved itself into an issue as to the de facto existence of the Confed-

The event was bound to exert important influence on our recognition policy. The obvious practical test of de facto authority, which had so long been a part of our tradition, could not be readopted without important qualification. Thus, we find Seward in 1866, after our great danger of dissolution had been successfully averted, conditioning the recognition of new governments not merely on their de facto character, but on the consent of the people, evidenced either by sanction of the legislature or by a formal election. Consistently therewith, but entirely out of harmony with our national traditions, Seward refused to receive the representatives of revolutionary factions in foreign countries seeking to establish their independence.

But again conditions were found more imperious than theories. Revolutionary governments in South America which established *de facto* authority without formal consent of the people had to be dealt with, and we find down to 1890 a partial, and after 1890, a complete departure from the conditions of legitimacy which Seward, impelled by the crisis through which he had passed and the requirements of consistency, had sought to attach to our recognition of new governments. The precedent of making recognition conditional had several important effects. It served to encourage the exercise of a power, by withholding recognition—though earned by objective standards—to interfere in the domestic affairs of foreign countries, contrary to the national tradition. When thus used as a political instrument to exert our will over that of other nations, it subverts the principle of recognition and the theory of the independence of states.

As the element of express consent of the people receded in importance as a condition of recognition, it was re-

President Wilson, on assuming office in March, 1913, announced in a statement of policy toward Latin-America a new doctrine of refusal of the United States to recognize new governments which had established themselves by revolution. The object of his administration, he said, would be "to cultivate the friendship and deserve the confidence of our sister republics of Central and South America," and to promote the common interest. "Cordial understanding and co-operation between the peoples and leaders of America," he said, was possible "only when supported at every turn by the orderly processes of just government" based "not upon arbitrary or irregular force," but upon "law," upon the "consent of the governed" and upon "the public conscience and approval."

While the President doubtless had in mind the government of General Huerta, who had incurred Mr. Wilson's violent dislike—although it so happens that he was actually the President of Mexico according to the Mexican constitution—the declaration was deemed to constitute a policy of refusal to recognize revolutionary governments. Under the guise of promoting constitutionalism, it embodies in effect a reincarnation of the discarded theory of legitimacy of the Holy Alliance, to which likewise revolution was anathema. Read in the light of the principles upon which this nation was founded, it must arouse a feeling of wonder. But from the fact that President Wilson promptly recognized recent revolutionary changes of government in Peru, Bolivia and Guatemala, in apparent disregard of his announced policy, one may conclude that the declaration has more oratorical than political importance.

(c)

#### FREEDOM OF THE SEAS

The dependence of large sections of the population of the new country upon maritime commerce made restrictions upon its free exercise at any time, and especially in time of peace, irritating, expensive and sometimes intolerable. Among the earliest American efforts to secure the freedom of navigation throughout the world was that involved in obtaining relief from the exactions of the Barbary States, Morocco, Tunis, Tripoli and Algeria. The rulers of these states had obtained the sanction of a long-continued practice to exact tribute from the vessels trading in the Mediterranean. Before the Revolution, a considerable American commerce had developed with ports in the Mediterranean. As it had to be abandoned on the outbreak of war, one of the early tasks of the peace was to restore it. It became necessary, therefore, to make terms with the rulers of the Barbary States, who had grown strong and wealthy in their tolerated occupation of licensed robbery. Yet they were but modern examples of a system which had for centuries admitted exclusive claims to jurisdiction over waterways and wide expanses of the sea.

contest their claims. The rates they charged for their appeasement were changed without notice, and seem sometimes to have been based on the modern principle of what the traffic could bear; and they had the irritating habit, in addition to capturing the vessels, of throwing into slavery, subject to ransom, the seamen belonging to vessels who would not pay the price of their friendship. Their appetite grew with what it fed upon. The Dey of Algiers and the Bashaw of Tripoli, particularly, were afflicted with itching palms, which required much ointment, in various forms, to soothe. Down to 1815, intermittent war with these pirates had temporarily interrupted the exaction of their blackmail, but no final end was made of the system until in 1815, Congress, at President Madison's recommendation, decided to wait upon the Dey of Algiers with sufficient force to convince that potentate of the error of his ways. The treaty which concluded that war brought to an end every exaction of tribute in any form in the Mediterranean.

One of the claims of jurisdiction upon the high seas which survived the abandonment of extensive assertions of sovereignty was that of subjecting the merchant vessels of foreign nations to visit and search by national warships, in time of peace as well as in war. An incident of this practice, in time of war, was the taking out of neutral ships of fellow-nationals of the belligerent found on board. Great Britain, during the wars between 1793 and 1815, had thus taken out of American vessels not only British subjects, but also naturalized Americans of British origin, whose American citizenship under the prevailing doctrine of indelible allegiance, Great Britain refused to concede. This practice, proving increasingly obnoxious and harmful to American commerce, was resisted by the war of 1812, and although not referred to in the Treaty of Ghent which brought that war to a close, the practice has not been renewed. Final evidence of its illegality is found in the American admission in 1861 of

the correctness of the British position in protesting against the forcible taking by an American warship of the Confederate commissioners, Mason and Slidell, from the British steamer "Trent".

The protest of the United States in 1873 against the stoppage by a Spanish warship of the falsely registered American steamer "Virginius," engaged in a hostile enterprise against Spain in Cuba, illustrates the traditional insistence of the United States upon the freedom of its vessels on the high seas in time of peace from foreign interference. Pirates, of course, are excluded from this protection.

The consistent effort of the United States to free the channels of maritime commerce from artificial restrictions

A similar policy marks the diplomacy involved in securing the freedom of navigation in the Canals of Suez and Panama, though it cannot be said that unrestricted transit in the Panama Canal is assured for anything but peaceful commerce. The "neutralization" of the Canal is nominal only, since the fortifications enable the United States in time of war to use the Canal as national interests may dictate.

The policy of opening the channels of trade is similarly exemplified in the long diplomatic effort to secure the freedom of navigation in international rivers, such as the Amazon, the St. Lawrence, the La Plata and the Paraguay. This was perhaps but a reflection in America of the universal effort to secure freedom in river navigation, of which the notable instances in Europe involve the Danube and the Rhine.

The demand by contiguous states, for monopolization of fishing in the interests of their own nationals, has induced the last surviving claim of exclusive jurisdiction over wide bays and marginal seas, beyond the conventional ten miles and three mile limit. The three mile zone, incidentally, was for the first time officially adopted, in 1793, by the United States. The more extended claims have now been gradually limited by treaty or acquiescence to certain definite areas, in which the geographical configuration of the land or considerations of expediency or history have justified their admission. Entire consistency on the part of the United States cannot be asserted, for while we have sedulously resisted the claims of Great Britain, Russia and other nations to the exercise of exclusive jurisdiction in wide bays or

The expression "freedom of the seas", which has been deemed an essential factor of American foreign policy, has been used in so many senses that confusion in its meaning is natural. In time of war, the freedom of using the sea is, of course, greatly, if not entirely, impaired by the belligerent exercise of the rights of capture, and the enforcement of rules as to blockade, contraband carriage, and collateral restrictions, legal or illegal, which their strength permits them to impose upon neutrals. The United States came into being at a time when war had ceased to be the normal and had become the abnormal and exceptional relation between states. They were, therefore, able to give vitality to the principles of neutrality which they had championed, some of which had already received approval by the European alliance known as the Armed Neutrality.

Except for a brief period, during the Civil War, the United States has uniformly advocated limitations upon the privilege of belligerents to interfere with maritime commerce, and corresponding enlargement of the rights of neutrals. This, of course, is consistent with its traditional policy of removing restrictions from commercial intercourse in time of peace and of war. Success in such an effort will depend, at any given time, upon the strength of the particular belligerents, so that it is hard to say how far American doctrines have secured universal acceptance. Thus, the United States in the recent war tolerated, not without protest, such practices by Great Britain as the so-called "blockade", reminiscent of the Napoleonic decrees and Orders in Council of a century ago, the blacklist, operating between neutral countries, the uncontrolled extension of contraband lists, new constructions of the doctrine of continuous voyage, the seizure of American mails at sea, nearly all in violation of

larged naval program, which some of the recent belligerents do not regard with equanimity. Instead of ameliorating the status of private property at sea, by assimilating it to the immunities heretofore enjoyed by private property on land, the Treaty of Versailles has adopted the medieval practice of confiscating private enemy property on land. So inconsistent is this measure with the modern requirements of international commercial intercourse that it seems inconceivable that capitalists anywhere could have supported it. Not only is it likely to prove universally unprofitable to leave foreign investments in this precarious position, but it reduces immeasurably any chance for the early limitation of armaments and of war, for the integrity not merely of public but of private property now depends upon success in arms.

The effort to establish the rights of neutrals and the freedom of the seas generally is but part of the larger American policy of removing so far as possible all restrictions upon the freedom of commercial intercourse. When the United States became an independent nation, the world was fettered by the most exclusive restrictions in trade and navigation. The colonial monopoly was perhaps the most prevalent. The disadvantage of the colonists in being confined, in their European trade, to dealing with Great Britain, in British vessels, had been tempered by the freedom of intercolonial trade; and that with the British West Indies had grown to considerable proportions. Having organized an independent state, American merchants were much disappointed to find themselves excluded, as foreigners, from the lucrative West Indian

Yet the United States, by considering commerce between the United States and the Philippines, Hawaii and Porto Rico as coasting trade, from which foreign vessels are excluded, except by license, seems to have revived one of the more objectionable features of the old system of colonial monopoly, though these dependencies are, of course, open to the trade of all nations.

national law. Finally, some estimate of our present position may be warranted.

The issue came to a head shortly after the Civil War, when the Fenian troubles in Ireland took to that unhappy land some naturalized citizens of Irish origin. They were dealt with as British subjects, and the resulting popular agitation in the United States was promptly reflected in an Act of Congress, July 27, 1868, which declared that the right of expatriation was "a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty and the pursuit of happiness," that any ruling to the contrary was "inconsistent with the fundamental principles" of the Government, and that native and naturalized citizens should receive the same protection abroad. But without the acquiescence of for-

The public declarations of the United States, from the beginning, and the practice of its governmental departments, have been noteworthy for their acceptance of the law of nations, which they sought to establish on a definite foundation, as the guiding principle of international relations. Their preference for legal methods is exemplified in the extent to which arbitration has been employed by them as means of settling international differences. Only Great Britain has resorted to arbitration more frequently. From the Jay treaty of 1794, which provided for three different arbitrations, down to the present time, arbitrations have been held with almost every country of Europe and with many of the States of Latin America, involving most important questions, principally boundaries and pecuniary claims of every description. The record includes such delicate matters as the "Alabama" claims and the century-old dispute over the North Atlantic Coast Fisheries, settled at the Hague in 1910.

Nearly all the Pan-American Congresses since 1889 have expressed approval of the principle of arbitration, though its practical value depends on the disposition of nations actually to submit disputes. The prevailing tendency to except from the treaty obligations of arbitration, questions of vital interest, honor, etc., but indicates how cautious nations are in agreeing to the judicial method for settling their important disputes. As it is only these disputes which could normally lead to war, the reliance upon arbitration as a means of averting war, notwith-standing the notable achievements of the nineteenth century, cannot be considered strongly justified. While the United States made valuable contributions to the establishment, at the first Hague Conference, of the Permanent Court of Arbitration, to which they have resorted on several occasions, the Senate has in recent years manifested a reluctance to widen the range of questions submissible to arbitration. By reason of the Senate's insisting upon the privilege of passing on each specific claim to be submitted to arbitration under a general treaty, Mr. Moore concludes that arbitration is now more difficult than it was in the beginning, when by executive agreement or under

a treaty, long lists of claims were submitted without supervision by the Senate.

The so-called Bryan treaties, of which some thirty have been concluded with different nations, may be useful in preventing an immediate recourse to force when there occurs a particular incident, whose facts are doubtful, creating a dispute between the contracting nations. It provides for an examination by a commission and suspension of hostile action for a year for investigation and report. The principle, though known, was not resorted to at the time of the Tampico incident with Mexico, which gave rise to the Vera Cruz expedition against Huerta. The Bryan treaties do not seem to have great efficacy with respect to continuing injuries or issues arising out of questions of conflicting principle or policy, which, after all, constitute the effective causes of hostilities.

diplomatic methods the adjustment of the resulting difficulty with foreign nations.

Mention should be made, also, of the peculiar American interpretation of the most-favored-nation clause, incorporated in many commercial treaties. Under the European interpretation, special privileges granted to one nation are at once and unconditionally extended to other nations having such a treaty clause with the grantor State, whereas the United States extends the same favors only on condition that such other nations satisfy the same conditions under which these privileges were originally given to the grantee State. Without such a reciprocal concession, the American view is that the second State would receive gratuitously what the grantee State obtained only upon valuable consideration. Notwithstanding the criticism of Europe, the American interpretation has been maintained and has received the carefully considered approval of the Supreme Court.

The fact that treaties are the supreme law of the land and that the law of nations is recognized by our Constitution as a part and source of municipal law, upon which the courts may draw in determining controversies, have served to give international law a legal importance in the United States which it does not possess in many other countries. Sir Henry Maine pays a high tribute to this view of the United States that international law is an integral part of the law of every member of the family of nations, without legislative adoption or formal agreement. This undoubtedly accounts for some of the remarkable state papers which have issued from our Department of State, constituting universally acknowledged authorities on the principles of international law they expound. It has also served to endow the decisions of our courts, notably of the Supreme Court, with an international importance entirely disproportionate to the case under consideration. The names of Marshall, Kent and Story will forever be identified with these judicial contributions to

the growth of international law. It has also encouraged American publicists to give a concrete legal setting to their views, not usually found in the writings of continental authorities on international law. With these contributions the names of Kent, Wheaton, Dana, Woolsey, Field, Wharton and Moore are prominently identified. I regard John Bassett Moore, since the death of Westlake and Renault, as the greatest contemporary authority on international law and relations. Combining, as he does, technical knowledge of the highest order, a sound, critical, yet tolerant judgment of men and events, genuine nobility of character, to which sincerity is axiomatic, a profound appreciation of the principles and philosophy of American government, and a large practical experience in intimate association with our foreign relations, it seems inconceivable that any American administration, least of all the last, could afford not to profit by his wise counsel and judgment.

And now the United States is at the cross roads. While not the greatest crisis of our history, the recent World War has created problems and developed policies which may have a profound and lasting effect upon the future of the country. Fortunately, there appears now to be a disposition to return, so far as possible, to the fundamental principles upon which our national greatness has been achieved. But one cannot escape the thought that with our change in economic and political status with respect to the rest of the world, temptations to abandon principle for opportunism and expediency will continue to present themselves. I conceive that the maintenance of our position as the leading exponent of political liberty and democracy among a free people will depend upon the steadfastness with which those temptations are resisted

sisted.

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### APPENDIX

testants against Roman Catholics have been so vehement as to deprive them of the power of forming a dispassionate opinion of their works, even if they had been acquainted with them, which they rarely were.' The same author, in a footnote, gives expression to the belief "that no more valuable contribution could be made to the literature of jurisprudence at the present time than a collection and translation of the portions of these works which have reference to general jurisprudence and international law." But these statements were made nearly forty years ago, and the injustice and prejudice, on the one hand, have largely disappeared, while interest in popularizing the translations of relevant portions of the works mentioned has long since been aroused by Prof. Ernest Nys and by the "Classics of International Law" being published by the Carnegie Endowment for International Peace, under the general editorship of Dr. James Brown Scott, and now by a new series of Clasicos jurisdicos inaugurated by the publishing house of Reus with the present volume.

The selection of the Spanish Jesuit, Francisco Suarez, as the first author in the series, is a most happy one, for the echoes of his tercentenary celebration have not yet entirely died away. Attention which had hitherto been confined to a few historians of international law, such as Ward, who calls him "a writer of great perspicuity and comprehension of mind," and Hallam, who regards him as "by far the greatest man in the department of moral philosophy, whom the order of Loyola produced in this age, or perhaps in any other," was now more popularly centered upon him, and especially did his native country hasten to make tardy amends for the oblivion into which one of the purest glories of its history had been allowed to fall.

tius, if indeed to him. In fact, there is little or nothing new in Grotius' general treatment of his subject; his system is fundamentally identical with the ideas outlined by Suarez. It is true that Grotius advanced far beyond all his predecessors in the detailed elaboration of his principles, but the fact nevertheless remains that "Suarez has put on record with a master's hand the existence of a necessary human society transcending the boundaries of states," the indispensableness 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." And therefore, "it is rather remarkable," as Ward notes, "that in his survey of the writers who preceded him, he (Grotius) makes no mention of Suarez, the clearest of all those who had attempted to discuss the law of nature, and the difference between it and the Law of Nations," although it is true that Grotius elsewhere recognizes in him one of the greatest theologians and a profound philosopher.

Francisco Suarez was born at Granada on January 5, 1548, not quite a year and a half after the death of that other scholastic glory of Spain, Franciscus de Victoria. In 1564 he entered the Society of Jesus at Salamanca, where he studied philosophy and theology from 1565 to 1570. Ordained to the priesthood in 1572, he taught successively and most successfully at Avila, Segovia, Valladolid, Rome (1580-1585), Alcala (1585-1592), Salamanca (1592-1597), and finally Coimbra (1597-1616). He died on September 25, 1617, but in the short space of twenty-three years (1590-1613), he wrote and published twelve extensive and important works on theological and philosophical questions, as well as composed seven other works published posthumously, the last as late as 1859.

Book I—On law in general, its nature, causes and effects.

Book III—On positive human law in itself, and as it can be considered in the pure nature of man, which law is also called civil law.

Book IV—On positive canon law.

Book VI—On the interpretation, cessation and mutation of laws.

Book VIII—On favorable human law, or that which grants privilege.

Book IX—On the old positive divine law.

Book X—On the new divine law.

In his discussion of Victoria's influence, the Editor-in-Chief of the International Law Classics writes: "The reasons for including Victoria's tractates are sufficiently set forth by Professor Nys in his introduction, and yet the general editor is unwilling to allow the volume to go to press without a tribute in passing to the broadminded and generous-hearted Dominican, justly regarded as one of the founders of International Law, and whose two

1James Lorimer, "The Institutes of the Law of Nations" (London, 1883) Vol. 1, p. 71

Henry Hallam, "Introduction to the Literature of Europe in the 15th, 16th and 17th Centuries" (London, n. d.), p. 524.

\*Cf. Thomas Alfred Walker, "A History of the Law of Nations"

(Cambridge, 1899), Vol. 1, p. 330.

'John Westlake, "Chapters on the Principles of International Law' (Cambridge, 1894), pp. 27-28.

This work and relevant portions of the De Legibus will appear in text and English translation in the Classics of International Law.

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