UNIVERSITY OF CALIFORNIA AT LOS ANGELES GIFT OF Dr. Ha in en C ' ^. J%.i^Ux»■>,»• JOHN BYRNE & CO. Washington, D. C. 19 2 2 Copynr/M, 1922 By JACKSON H. HALSTON All rights reserved. The Advertiser, Annapolis, Maryland I To "" My Wife SARA B. RANKIN RALSTON z Whose sympathies have accompanied ^ the preparation of this tvoo'k. ^ ^ CO 2796SS 31 (oO TABLE OF CONTENTS Chapter I How Euiidameiital liitenjational Law is to be Discovered 1 Chapter II Laws of AVar 22 Chapter III Systematizing War 29 Chapter IV International Sovereignty 38 Chapter V The Meaning of * * National Interests " 47 Chapter VI Superficiality of Today's International Law 57 Chapter VII Imperialistic Adventure Under International Law 69 Chapter VIII Deficiencies of International Courts Under Present Conditions 84 Chapter IX Should any International Dispute be Ke- served from Arbitration! 102 Chaptf.k X Some Supposed Just Causes of War llo Chapter XI Essentials of Peace and War 125 Chapter XII Some Tendencies Pressing Toward Justice and Peace 1 38 Chapj'ek XIII Basis of a Democratic Law of Nations 147 Chapter XIV Resume of Our Conclusions 159 FOREWORD Of late tlie very term ''International Law" lias fallen into disfavor. Men have felt that as now taught such supposed law had no fixity; that its assumed principles were only laid down to be flouted; that it was nerveless and without an animating soul ; that it was but a paper creation. Yet it is the feeling of the writer that there does exist such a thing as true International Law ; that its principles cannot be overlooked with impunity; that it moves with the silence and certainty of the law of gravitation; that, without having been written down, its violations bring punishment to all offending nations. The failure to read the secret of its existence and to study the lessons it would teach and profit by them, accounts for the prostrate w^orld. Something has been learned of the theory of Democratic Government. The little knowledge so acquired has been laid aside by writers on Inter- national Law as not pertinent to their purpose. In so doing they have ignored the only way of learn- ing true International Law — by tracing the con- sistent progress of Law from the small unit to the large. To point out this error; to indicate the manner in Avhich the world 's puzzle must be solved, is the purpose of this little book. It can not more tlian suggest a line of work for the future. Some such scheme of endeavor must be followed if we would apjjrehend the noblest branch of legal science yet to be examined critically by the human intellect. Herein it is also sought to show how vitally the common man is affected by International- Law and his material dependence upon its understanding. In the past we have been but charlatans, and have forgotten that "Swiftly the charlatan goes. Is it dark"? He trusts to his lantern. Slowly the Statesman, but safe, timing his feet by the stars." The writer desires to express his appreciation of thoughtful aid received in the preparation of this book from Mr. Arthur Deerin Call, Secretary of the American Peace Society, and of valuable comments and suggestions from Mr. Charles F. Nesbit. Jackson H. Ralston. Washuigton, D. C, June, 1922. emocracy's International Law CHAPTER I HOW FUNDAMENTAL INTERNATIONAL LAW IS TO BE DISCOVERED Of late much has been said with regard to Inter- national Law and its teachings. We are some- times told about a given proposition that Grotius says this ; Pufendorf says that, and Oppenheim or Hall says the other, as if the mere asseveration by any man, however distinguished, that a certain thing is International Law makes it such. The International Law writers have not thought to examine the characteristics of law in general. They have not sought to discover real law through its natural manifestations as applied to interna- tional affairs. They have not distinguished be- tween that whicli is fundamental and that which is merely incidental, between rules of law and mere rules of order. It may in truth be said that, after several centuries of repetitions of doctrines and multiplications of instances, no consistent theory of International Law laying down the norm to- ward which all things must work has yet been pro- pounded. Mucli learning without actual thought hath made us mad, in several senses of the word, democracy's international law while failing- to carry us far on the road to justice in international affairs which must be traveled by the human race if it is to profit by Internationa] Law. International Law writers have, for instance, been obsessed with the idea that war is a natural condition as between nations, and that its laws are, or by right may be, laid down by the combat- ants, even to the injury of neutral nations The idea has governed them that war has existed with greater or less frequence since early in the history of organized societies ; that it is a necessary evil ; that it is not within the power of man to stay it, and that all we may hope to obtain is some mitiga- tion of its cruelties and some trifling diminution in its recurrence. If the internationalists had taken the position that war is ordinarily an outrageous and contemp- tible thing; that its existence is an entirely human concern; that usually its aims are sordid and that its causes are ascertainable; that the duty of In- ternational Law is to discern its causes and as far as possible to remove them ; that the germ is to be sought with the same careful, painstaking deter- mination which ])hysicians have devoted to the dis- coveiy of the yellow fever or typhoid germ, and that this is one of the proper functions of the In DISCOVERING INTERNATIONAL LAW 6 ternational Law student, then some little advance- ment might have been made. We would scoff at the medical science which should say, *'We can not isolate the germ of small- pox; we can not prevent its transmission from one human being to another; we can not fortify the system against it, but we shall take great credit to ourselves if, in occasional instances, we can pre- vent the spread of the disease from the body to the face." Relatively speaking, nevertheless, the results up to the present time of the study of In- ternational Law have been scarcely more import- ant. We felicitate ourselves because we have es- tablished Hague courts for the determination of questions about which nations, or rather the inter- ests controlling nations, are comparatively indif- ferent; but we have reserved the right to go to war over things which the managing minority, have regarded as important, and when the great majority are persuaded that their patriotic inter- ests are involved. What principles should our study follow? Some years ago a former United States Sena- tor, in speaking upon the subject of Arbitration, in an address delivered before the American Society of International Law, said: ''We have been told by an international tribunal that by International democracy's international law Law the conquering nation alone may fix the pen- alty to be paid by the defeated nation and that there is no principle known to that law which gives a third nation a right to object." This is doubt- less a correct statement of what is called Interna- tional Law ; but it is not law. That which is fun- damentally law is universal as to time and place. All else is no more than usage. All that can be truly said by the writers on the subject of Inter- national Law with regard to the practice above mentioned is that observation has shown that usually the conquering nation does prescribe a penalty to be paid by the defeated country. This is a statement of fact, not a principle of law. Let us assume that men have observed that when a robber in the pursuit of his profession knocks down a man he usually takes from him his purse. The fact would be clearly recognized, but would not be incorj^orated in the law of felony We shall note meanwhile that in the forum of arms, the felonious nation is quite as likely to be successful as the unoffending one. On the shores of the Arctic Sea in the North of Siberia dwell tribes which kill their elders when they become helpless, and these aged ones expect this fate and, perhaps, they expect, further, to be eaten. The man who would say that by their law the aged are killed and eaten would be guilty DISCOVERING INTERNATIONAL LAW of a misuse of words. There is simply a usage of this kind. Assume that hunting and fishing are unusually good with a particular family, and that such family preserves instead of destroying and eating its elders, could it be said that a law has been violated? — Scarcely. A custom of that time and place would have been departed from, but no essential human riglits would have been lost ; rather the contrary. Going several thousand miles further south, we find among the Chinese a careful preservation of the old, coupled with the worship of ancestors. But if a man fails so to worship, he has violated no law, and he receives only such supernatural pun- ishment as may afflict him. At the time of the ])attle of Agincourt. wiicn a soldier of the English king captured a member of the French nobility, the individual captor held the individual captive as his personal prize and re- stored him to liberty upon payment of a suitable ransom. This was the usage of war, and with en- tire propriety, judging by present day standards, might have been written down by the interna- tionalists of that time as a law of war. But no X)ower compelled a British captor to insist on ran- som, and no human right, or any human law, would have been violated if he had set his captive free. 6 democracy's international law In the tiuie of which we speak and for long- after, looting by the soldiers was considered en- tirely proper. At the present time looting by gov- ernments at least is practiced. But no law ever gave a right of private or pu])lic loot. To say, therefore, that either one is the product of law or permissible by law, is to do a violence to lan- guage. All til at can be said is that men at war have varied their actions from century to centurv, and their actions as so varied have been in some degree usages which one might expect to encoun- ter in the progress of the disease called war. ■ Consider what law, measured bv the natural sciences, and save as varied by human character- istics, really is. If we study the law of gravita- tion we shall conclude that it possesses the ele- ment of invariabilitv from centurv to centurv. We shall discover that it operates uniformly under like conditions everywhere. We perceive that it is inescapable. When challenged, it will assert it- self. The same might be said with regard to the principle of conservation of energy or any other of the great natural laws. We have detected these laws by being in the first instance struck by events which have indicated an anterior cause, and, from the event or from a succession of events, we have discovered what the cause must be. It has been much as the astronomer who has established be- DISCOVERING INTERNATIONAL LAW / fore he has ocularly demonstrated the existence of a star. The perturbations of other stars have pointed the way. While we have not been aware of this, our ex- amination of law in national society has been much the same. Unconsciously we have worked back from results or events to law and then pro- claimed and enforced it. The internationalist, having before him num- berless differences between nations, a vast amount of material from which, with careful study he could have deduced laws which had been violated, has contented himself with writing down the inci- dents attendant upon the violations. He has been no more than the man with the muckrake looking down to the earth, when above and around is the glorious light of day, Assume as thoroughly detached an attitude of mind as may be possible, and for at least a brief period lay aside the prejudices and predilections to which you may have grown accustomed. For the purpose of the discussion be prepared to in- dulge in what is called "idealization"; to project ourselves away from all the hampering surround- ings of the present into a future where reason and justice may be presumed to reign. If we contend that this is too great an undertaking and l)eyond human ability, then religion must be a failure 8 democracy's international law since it asks no less than this. It is only by ideali- zation that future progress is made. Before he puts his pen to the drawing paper, the architect sees in his mind's eye the magnificent structure the creation of which he is to direct. The states- man, desirous of reform, visualizes the end to be gained and the good which will be incident to it before the law is drafted. The student of Inter- national Law must in this wise gain comprehen- sion of the ends toward which he should move. What must be the aim and end of International Law? Why should it exist at all! These ques- tions may be asked even before we determine its essentials or the divisions which it must assume. Within the limits of the State the end of law is, it may be said, to preserve order and insure jus- tice between man and men and between the State and the individual. This is well expressed by the Preamble of the Constitution of the United States which says: "We, the people of the United, States, in order to * * * establish justice, insure domestic tranquillity, * * * and secure the bles- sings of liberty to ourselves and our posterity, do," etc. Turning to International Law, wo may believe that its purpose is to attain as between the States of the world what will closely core- spon democracy's international law find that they may be disobeyed without penalty or punishment. We discover that under their rule it is righteous for an army to explode mines un- der the feet of an unsuspecting man ; it is unright- eous to use false flags. It is proper for a sub- marine, like a midnight assassin, to blow up a ves- sel of war; it is improper that a peaceful mer- chantman, to escape destruction, should fly the flag of a foreign nation. One series of deceptive acts mav be condemned under the laws of war, and another may be sustained; and when we seek for a rule of reason we find we are, as it were, on a shoreless sea, without a rudder, with no compass to guide us, and no sail to carry us to a port of safety. Perchance there may be some deep funda- mental error in our attitude toward the subject. It may be that somewhere we have missed our bearings, for we are continually calling for aid from the laws of war and getting only Delphic response. What is the error of which we are guilty and at which Mars scoffs? We have treated war as a legitimate thing, with regard to which consis- tent laws might be laid down which would enforce themselves. Nationally, we have laws against mayhem, arson, murder. Internationally, we ac- cept these things as just. We have no laws SYSTEMATIZING WAE 31 against tliem. We liave so-called laws of tliem. AVlien we have met in Hague Peace Conferences, as in 1907, we have passed six times as many Con- ventions concerning the warlike relations of States as we have concerning their peaceful rela- tions, so legitimate is war. We never proscribe it, limit it, punish it. If we could imagine a country in which the in- habitants expected sooner or later to indulge in marauding against one another and seizing each other's property for their several uses, then we could further imagine these same people getting together in solemn conclave, as our nations do, and piously resolving that as individuals they would not raid one another save when they per- sonally felt that they had been insulted by their fellows, or save when their important vital inter- ests, as they individually determined them to be, demanded that they possess themselves of the property of each other, and then only under fixed rules, as, for instance, that while they might kill the head of the family, they would not kill chil- dren under the age of six; that they would not make slaves of the survivors, but only take away their property or mortgage their labor for future years ; that they would endeavor to nurse back to health those of their neighbors whom they wounded but failed to kill at the first shot. These 32 democracy's international law laws would be reasonable, as reasonable as the laws of war, and yet perhaps we would all admit that there might be circumstances of convenience and advantage, and perhaps of humanity, or even morality, which would prevent the entry by indi- viduals into such contracts. Turning, however, to the Law of Nations, we say in Hague Conventions that states may themselves judge when they are insulted, or when their vital interests demand that thev should be their own executioners. Having so declared, we next lay down rules of action to apply when they are at war, but without reserving power to enforce such rules. In themselves the rules may be as ex- cellent as was the rule of action governing Eobin Hood, when he stole from the rich to give to the poor. England frowned upon his exercise of this principle, but other nations, and England as well, have never dissented from the idea that it was en- tirely proper to extend the blessings of civilization over far countries under cover of cannon smoke, or that the rich and powerful nations should take from the poor and Aveak Our laws of war have utterly failed because they have started from the premise al)ove indi- cated, that war was natural, inevitable, even laudable and righteous. AYe can never meet the difficulty until we approach the problem from an SYSTEMATIZING WAR 33 entirely different standpoint. We must, as a nation, treat war as abhorrent and to be stamped out. We must never again send a representative to a Peace Conference to write the laws of war. In the place of such burlesque upon peace, real declarations of principle must be written by nations indulging in it. At least nations must do this and accept the consequences of such new rules of action if, indeed, they believe war to be an evil and a nuisance, though they think it may fall short of being a crime. It makes a great diiference whether the laws of burglary are framed by burglars, even by those who, recogiiizing the frailty of human nature, ex- pect that some time or other they mil be compelled to resort to burglary, or, on the other hand, by citi- zens who are not burglars, do not expect to in- dulge in burglary, and do propose to treat it as an objectionable occupation. To give slight concrete illustrations of the idea we have in mind, we may call attention to the fact that one of the Hag-ue Conferences under- took to regulate the use of submarine mines in war. This recognized the legitimacy of their employment. Again, according to the accepted practice among nations, a city may be bombarded and the property of neutrals destroyed, and such neutrals are without recourse. Approaching 3-4 democracy's international law these topics from a saner point of view, we would agree that a nation which, by jDlanting mines or through any other act of war, inflicted injury upon the property of the individuals of a neutral nation should be responsible for the injury in- flicted. To illustrate: If, gun in hand, and endeavor- ing to kill my enemy, by mischance I slay an in- nocent bystander, I am punished for the act: the fact that my aim was bad will not excuse me. Even civilly I may be compelled tp pay heavy damages to his wife and family. If I set a trap for an enemy, and by accident kill a friend, our municipal laws hold me deserving of punishment. The nation committing like acts should receive corresponding punishment. We should not allow any nation to gain ma- terial advantage, or assumed material advantage, as the result of war with another nation. If, in a dispute, I am overcome by another man, he gains no right to hold me down until I yield to him my purse or deed him my property. Yet we are told that by the laws of war similar acts may occur be- tween nations and be fully justified. We may truly say there are no such laws of war — that in such things are lacking all the elements of law, whether measured by the criterion so eloquently stated by Hooker or by any criterion recognized SYSTEMATIZING WAR 35 among men who claim a speaking acquaintance with the Ten Commandments or with the proprie- ties recognized as existing among gentlemen. If a thousand times men have been overcome by their enemies and despoiled of their pocket-books, there is not thereby created a law of robbery. A thou- sand like instances as between nations cannot cre- ate a law of war sanctioning such conduct. The fact that under given circumstances men or nations have taken advantage of one another does not create a law of wrongdoing, but only indicates a tendency on their part, their passions being ex- cited, to ignore the laws of decency. AYe will further add to our national laws. With- in our borders we will prohibit the flotation of bonds to carry on war, just as we punish a man as accessory to a crime who loans money to an- other to buy a gun to kill his fellow. Likewise we will prohibit the selling of arms and ammuni- tion by our citizens to another nation to carry on war, for in so doing w^e make ourselves accesso- ries to the ensuing slaughter. We must have our own rules of righteousness and right living. We will make it more difficult for ourselves to enter into war. Today our Congress and our President may declare war without real knowl- edge of popular sentiment, influenced by the ex- citement of the moment, and we are compelled to 36 democracy's inteenatioxal law follow in their train. We will prevent declara- tions of war before in some manner tlie question has been submitted to the cool judgment of the people, and if this be done we may be assured that we will never enter into them. War has ever been a game for kings to play at, and Presidents and Congresses should not succeed to their role. But if our thesis be wrong — if we must con- tinue to have laws of war instead of laws against war — let us address ourselves to the problem in a sportsmanlike way, and let war be a game, sanc- tioned as such, and carried out under enforceable rules. Let us be systematic, forming a circle around the combatants, and allowing no nation to trade with them while the game proceeds. Let the prize be determined in advance of the conflict, so that each nation may know exactly the penalty of defeat or the reward of victory. Let strict rules be established, with an umpire furnished with power to call the game off, enforce forfeitures, or adjudge victory to the side winning the most points or indulging in the fewest fouls. The burning of a toAvn should have a fixed value; the killing of a thousand soldiers, the slaughter of civilians and the bombardment of unfortified ports, the sinking of an enemy's ship — vessel of war or merchantman — should be rewarded, and a proper number of points allowed. So many ]^oints should be de- SYSTEMATIZING WAK 37 ducted for the destruction of the vessel of a neu- tral nation or the killing of neutrals. Of course official tally-keepers should be appointed. In this or some similar way it will be possible to systematize war as we do a baseball contest or a game of parlor bridge, and thereby add to its sanctity and glory. 279688 38 democracy's international law CHAPTER IV INTERNATIONAIj so\^reignty In our studies of war we very largely neglect consideration of the bases of what is called Inter- national Law. If we give attention to the subject of murder we take into account its morality and motives, the manner and circumstances of its ex- ecution, moral and physical sanctions or punish- ments, and from them all we build up the theory which on its practical side should be embodied into peiT^ianent law. Not so have we approached the great problem of world trouble, and yet sucli like method of treatment would give m rich re- ward. A few preliminary observations may be made before we consider what is meant by the term Sovereignty, the subject of our present examina- tion. International Law books are filled with doctrines founded upon instances which, when matched against each other, are said to create law. This is done without relation to or consideration of underlying principle. This, if studied, might lead to widely different results. No endeavor is made to discover what real law is by going back- ward from event to logical cause. There are few Newtons among the students. A fallen apple at most is simply an apple fallen, and it is put in the SOVEKEIGNTY 39 barrel with its fellows, whether green, ripe, or rotten. All deductive reasoning, however valid, is rejected. Such synthetic reasoning as is in- dulged in rests upon the naked earth and is built up without the mortar of sympathy, ethics, or any real theory. Facts are rough hewn and laid one upon another without, to follow the metaphor, be- ing coursed or bonded. The laws of war we dis- cover to be merely usages modified from age to age according to the kind of severe or moderate cruelty popular at the moment. The remarks so far indulged in, as we may be confident, will be justified in part at least by the special consideration to be given to the meaning and application of the word "sovereignty." With this word practically all writers of International Law books introduce their volumes, and never do they give it and its applications practical analysis. "Sovereign power," says Grotius, "is one whose acts are independent of any other superior power, so that they may not be annulled by any other human will." Says Oppenheim : ' ' Sovereignty is supreme au- thority ; an authority which is independent of any other earthly power. Sovereignty, in the strict and narrowest term, includes, therefore, indepen- 40 democracy's international law dence of all round, within, and without the bor- ders of a country." What causes sovereignty! Who created it? By what authority does it deny existence, actual or potential, to any superior outside power? These questions are not answered. The definition is an assumption. As well might the bully among school boys say, "I am sovereign. I am not ac- countable to my fellows. I shall treat them as I see fit. I shall control my own actions without limits and without restraint. I shall undertake to supervise the conduct of any other person if I so choose." This declaration might work very well for him until he met a stronger bully or until two or more of the weaker boys combined to thrash him. Under these circumstances he would find his sovereignty infringed upon, suspended or destroyed. If these eventualities may happen, he does not possess sovereignty. It is merely a figment of the imagination which may not prevail against stem realities. These are exactlv the conditions we observe be- tween nations. The nation afflicted with a prepos- session of its own sovereignty, carries on, accord- ing to Grotius or according to Oppenheim, until, like the school boy, it meets with a superior bully or a stronger combination, and then, for the time being at least, sovereignty bows its head. Sov- SOVEEEIGNTY 41 ereigiity therefore is not au absolute quality of nations and the definition fails, never having had any firm foundation. All that International Law offers is an anar- chistic conception of sovereignty as its basis. The individual who owes no deference to law or to his fellows, or at least acknowledges none, is at best an anarchist or at worst a king. We are not compelled to acknowledge the cor- rectness of the theory of an original social con- tract to be convinced that men living in civilized society must, for their o\^^l good and to meet the necessities of that society, submit to laws de- signed for mutual protection. Strange to say, when the international lawyer envisages a State, he forgets that a State is but the individual grown large, and that right and wrong have no relation to size or numbers. There must be and there is a reason for this. Accepted Interna- tional Law from its beginnings has been, for the most part, the outgivings of diplomats. These gentlemen have been reared in the atmosphere of courts wherein they were taught that their masters, the kings, could do no wrong. They, in- augurating the Law of Nations, have felt "the force of temporal power, The attribute to awe and majesty, Wlierein doth sit the dread and fear of Icings." 42 democracy's international law There was no step between the king, the Lord's anointed, and Deity itself. By a natural se- quence this idea was applied to the State. Few real lawyers, trained in tlie admeasure- ment of human rights in contests developing the fundamentals of human liberty, have examined the sources of bookish International Law and tested its conclusions. The professors calling themselves internationalists have accepted the teachings of the diplomatic world. Thus it has been that the definitions of sovereignty we have quoted have met acquiescence. It has been for- gotten that sovereignty may only be postulated upon the superior power of the State over its in- ferior components. Even then limitations control itj but these we need not outline. They have been sufficiently discussed by Sir Henry Maine in Early History of Institutions. Let us consider. As between the collective will of the State and the will of the individual, that of the State must be supreme, else the State perishes and civilization may fall. Exaggerated dread of such failure accounts for the severity of laws against anarchists, often going so far that they would even stifle freedom of speech. A State is formed by licit or illicit means. It comes into a world peopled by other States, each one claiming sovereignty as against its fellows. SOVEREIGNTY 43 Each is influenced by the prepossession that it can do no wrong and as sovereign is bound to its fellows by no ties of morality, justice, or law. It is serenely unmoral. From the absolute logic of this position it is compelled to recede some- what, as would a group of anarchists on a narrow island. It establishes treaties, which it breaks whenever it is pleased to do so, for a bastard In- ternational Law has declared its sovereign right to do wrong as it will. This anarchistic concept controls it. That disorder forbidden to the individual it indulges in on its own behalf when in the society of those whom after all Interna- tional Law is often required to call equals. And International Law ignores the fact that among equals none is sovereign, and that such a thing can only exist by the common creation of all the equals. If a State makes a treaty it acts merely as sovereign over its inferiors. It re- mains not more than an equal among equals who should be able to hold it to accountability. It is, therefore, not true as Oppenheim. implies that a State can be sovereign beyond the borders of its country. Attempting it, international anarchy results, one of the worst illustrations of this an- archy being the recent world war. Eeal sovereignty ceases at the country's limits. The right of the householder to impress his will 44 democracy's international law upon another without his consent ends when he passes out over his threshold. Kings, flattered by their courtiers, have denied this. Diplomats, their servants, have echoed the denial. Interna- tionalists have weakly followed in their train. Confused by a name, appropriate enough for lim- ited home use, given a wrongful extension beyond the home of the nation, men have perished by millions in foreign wars. It is not inapt to compare the game played by nations in their intercourse with each other ta that of rival school boy baseball teams. "With re- gard to his owm affairs strictly, each boy ordina- rily has a right to control his actions. When he enters the baseball nine, he becomes subject to fixed and certain rules, and if he continuallv vio- late them, his fellows or certainly the umpire will expel him from the game, expulsion being an ap- propriate punishment. By his entry into the team he has circumscribed his liberty in certain respects. He has made himself subject to law and to the execution of law. The action of the nation entering into the family of nations should not be different. Im- perative rules are yet to be made for this world game. A disinterested umpire must see to the infliction of no less a penalty in serious cases than that of temporary or permanent exclusion from SO^'EEEIGNTY 45 the society of nations. His jurisdiction must also be preventive. All this does not involve, as will result from what has already been said, the sur- render of domestic sovereignty, the only kind log- ically permissible. It simply involves the recog- nition of that equality among the nations before the law which we say exists among the people, and, as pointed out, sovereignty and equality are incompatible terms within the same sphere of action. The nation which is more than a hermit as was Japan prior to Commodorer Perry's visit in 1853, is, whether it will or not, subject to the dom- ination of law, if not of expressed laws, in its re- lations with its fellows. To its actions there are appropriate reactions carrying with them their meed of reward or punishment, even though writ- ten or unwritten formal International Law be silent. These are as inescapable as the law of gravity. This would not be so were nations in truth sovereign in their foreign relations. We enter into postal, copyright, white slave, navigation, and a score of other conventions reg- ulating our interests with equal nations. We ob- serve them with scarcely a deviation. These are the laws of equals, no one claiming extraterrito- rial sovereignty when they are entered into. The national government in making them is simply the agent of the whole bodv of citizenship. 46 democracy's international law But certain classes of conventions we look upon askance. When we are asked to enter into trea- ties which would restrict our pride, our ambi- tions, our dishonesty, our covetousness, vv>2 dis- cover that the nation is a sovereign and can brook no superior. We are blind to the fact that such proposed treaties would do no more than check wrongdoing or regularize its punishment. We think that by refusing to form them we escape pun- ishment, forgetting that wrongful action nationally brings in its train jealousies, enmities, distrust, loss of trade and — war. Our devotion to a word. blinds us to realities. MEANING OF ^'NATIONAL INTERESTS" 47 (CHAPTER V THE MEANING OF "NATIONAL INTERESTS "* In our study of International Law as under- stood and practiced today it becomes interesting to learn exactly what so-called "national inter- ests" mean, and wliy and how they may be used to bring about difficulties between nations. A thorough diagnosis of the situation and its fear- less treatment would go far toward inaugurating correction of present conditions. The European viewpoint was stated by Von Jagow, the former German Secretary of State for Foreign Affairs, in his comment upon the Lich- nowsk^^ Memoirs, published toward the end of the war. He said "Even Prince Lichnowsky does not deny that we had there (in the Orient) great economic interests to represent: but today eco- nomic interests are no longer to be separated from political interests." This represents the old, and, as we might have hoped, the dying conception. Its suggestion is, first, get hold of a country through its economic interests, and next, control its political interests for the benefit of the economic. This has been the order of the day largely in the past — changed * From the Advocate of Peace, Decemberj 1921. 48 democracy's interns' ational law only by reversing the sequence and seizing- political control with the intent of using such control to de- velop economic profits. Nevertheless, we find Sir Edward Grey and Prince Lichnowsky proceeding on behalf of their respective governments to divide up parts of the world as the larger interests of individuals of their respective countries might dictate, with the su- preme thought in their minds that if a suitable division of economic control of the countries in question should be made, the chance of armed strife could proportionately be eliminated. This very position was in itself a confession that the great danger of war between the two nations was in the desire of govenmients to seek for groups of capitalists new fields of exploitation. We learn with interest that ''all the economic questions connected with the German enterprise were regulated in substantial accord witli the de- sires of the German Bank," It is hard to con- ceive in this day, wdien the rights of the common people are assumed to be paramount, that in de- termining a question of possible war or peace a settlement should be controlled by the wishes of a bank. Further, we find from the same Memoirs that the Germans were to be admitted by the treatv ar- ranged between Sir Edward Grey and Prince MEANING OF "NATIONAL INTERESTS" 49 Lichnowsky but never actually ratified, "to par- ticipation in Basra Harbor Works," and that they were given rights in the Tigris which had formerly been a monopoly of the firm of Lynch. The Prince finds that under this treaty Mesopo- tamia, as far as Basra, was to be a German sphere of interest without prejudice to certain older British private rights, while British were to con- trol the coasts of the Persian Gulf and Smyrna- Aidin line, the French, Syria, and the Russians, Armenia, It is said often that European nations have, or have had, spheres of influence in China, Africa, and elsewhere, and that within these spheres of influence their national interests were entitled to full play at the expense of other nations. Japan, we are informed, has special interests in China (the Lansing-Ishii notes erroneously declared them to exist) and Spain and France are now claiming them in Morocco. Can a nation, in point of fact, have any interest in a country over which it does not possess per- fect and complete sovereignty? We must deny it. The purpose for which government is formed is not to have, as a government, interests in other countries. It is formed for the preservation of order and the regulation of internal affairs \^'ithin its owti circumscribed limits and for pro- 50 democracy's inteknational law tection against invasion. It does not control the railroads, banks, ore beds, or commerce of another country, and ordinarily its scope of op- erations in these respects is very limited, even within its own proper territorial bounds. It may happen that a large number of persons of Japa- nese, English, or other origin may own and manage railroads, mining property, and banks, and carry on commerce in China or elsewhere ; but the things which they own are private, or so treated, and individually possessed by them be- cause of the good grace of the country in which they happen to operate. Their iwssession be- comes a source of profit to the owner, the only governmental interest of whose country is through the small measure in which such owners become contributors to its taxes. The so-called British or Japanese interests in China rest in the keeping of a few hundred or a few thousand individuals. The great mass of millions of other subjects derive no profit or ben- efit therefrom. It may not, therefore, be said in any true sense of the term, that there are British interests or Japanese interests in China or Amer- ican interests in Mexico. To speak of the interest of an American citizen as if it were the same as an American interest, or in other words, an in- terest of America, has but the shadow of truth MEANING OF '' NATIONAL INTEEESTS" 51 and none of its substance. We shall not be free from the clanger of war nntil this fact is thor- oughly understood. We should not allow our- selves to be deceived. AVe must not treat the hand of Esau and the voice of Jacob as if they belonged properly together. There is but one interest which may by any pos- sibility be called governmental (in truth it is not a governmental, but a world interest), and that is that, commercially, all foreigners within a country should be treated upon a basis of equality and not of preference. This was all that was in- volved in the so-called open-door policy of the late Secretary Hay. To go to war, however, to establish an open-door policy would simply mean the infliction of misery upon thousands for the benefit of the handful who would be the principal gainers therefrom. The evil would always be cer- tain; the good problematical and doubtful, and at best out of all proportion compared with the ab- solute disaster. But if we are right, and we do not think the positions so far taken can be successfully con- troverted, why is it that pseudo-national inter- ests are so often at the bottom of ill-feeling be- tween countries and, as in the latest world trag- edy, the underlying cause of active war? The short answer some might find bv recalling the re- 52 democracy's international law mark of Carlyle one hundred years ago that England was inhabited by 20 millions of people, mostly fools. The people of all countries are de- luded by a word. A few of their number desire special advantages in designated countries, and, forgetting their poverty and real non-interest, the majority believe that they may share in the profit which goes only to the few. We have heard, as who has not, the campaign orator describing to a credulous audience the tre- mendous advance in popular prosperity which had occurred under the then control of his party. Billions have been spoken of as if the speaker and his hearers really understood and comprehended the word in its full sense. Millions seemed to be dancing in the air as the audience subjected it- self to the hypnotic influence of the orator. The illusion of great wealth took possession of the hearers. And yet, when the voice of the orator was stilled, the band had ceased to play, and the lights were turned out, the poor listeners went to their homes to struggle with the same poverty they had always experienced. The billions were somewhere, but not with them. In like manner nations are befooled by the lim- ited number who hope to gain through the pos- session of foreign wealth. Insistently the ])eople are told, and in a state of hypnosis they believe, MEANING OF ' ' ISTATIOlSrAL INTERESTS" 53 that in some mysterious manner the dancing ignis fatuus of foreign fortune is to be converted lo their individual use. Thus it was that the French common people were persuaded to give up their lives and fortunes to conquer Madagascar and Tonquin, and the Italian peasantry taught that they were to grow great and wealthy through the control of Tripoli by their government. Even in our own country, when the taking of the Philip- pine Islands was under consideration, anxious of- ficial inquiry was made as to their potentiality of wealth, to the end of satisfying the American people when about to enter upon an experiment which many of them regarded as doubtful. Perhaps, after all, the error of the many is only a survival, as the coccyx and the vermiform ap- pendix are supposed to be. ^Hien a tribe moved of old from an inclement or worn-out land and seized a mild and fertile country, killing the old inhabitants, each warrior taking up some of the unoccupied lands, the individual was the gainer from warfare. It was in some such fashion as this that we disposed of the Indian. But now the vast body of the so-called civilized nations lose by war. The advantage to all the victors which once came from the impartial slaughter of the losers and possession of their lands has in this day dis- appeared. All the advantages they possibly 54 democracy's international law could obtain from war (and none of its losses) are to be had by breaking down the artificial n\an- made barriers that separate countries. The sole advantage to the generality of any successful na- tion which may come from war is, otherwise stated, an enlarged Zollverein, Thus, looked at, and in sober common sense other views must be rejected, war beconic-.s usually an utterly sordid operation, and the people who fight in it simply the cat's-paws of those u'ho are colder-blooded and less idealistic than the ma- jority. We say this even though we admit that the interested parties have deceived themselves as to national interests before they started to deceive others. After all, ideals are created ;iiid played upon, else men would not so readily impoverish their future or surrender their lives to enrich others. The people are persuaded to be for their coun- try, right or wrong. Unconsciously they wor- ship a fetish. In the older time the king, so the people were told, could do no wrong. In this more modern day, when we are for our cociitry under any and all circumstances, forgetting that, if wrong, real patriotism compels us to put it right, we are making a fetish but little changed from the ancient form. We now declare that the people may not err. In point of fact it is possible MEANIXG OF " XATIONAL INTERESTS" 55 the people may do wrong themselves. The chance of evil conduct is infinitely multiplied because of the docility with which they accept the teachings of those who are influenced — consciously or other- wise — in these matters by purely selfish motives. The people believe they are themselves acting, when in fact they are being played upon. Their ambition, their avarice, their chauvinistic patriot- ism, their pride of supremacy, are the keys. They have no more to do with the tune that is played than has the piano. To all this, democratic government is no answer. A republic, in but little less degree than a monarchy, can be moved by artificial pas- sion. The answer must come in a more thorough mastery of the meaning and practice of honesty internationally, which will ever penetrate behind conduct to motive. The more profound student of economics may reproach us for not pointing out and demonstrat- ing that "economic" interests usually mean con- trol of the land on which all people must work; that such control gives power over the worker, forcing him to labor for the benefit of the holder of land titles; that therefore exploitation of foreign countries — if not of foreign nations — means little else than the establishment in them of that system of land monoply which prevails 56 democracy's international law among so-called civilized nations. In other words to him exploitation largely means an extension of that unrestricted land ownership which at home spells so much poverty and degradation and so greatly weakens democratic forms of government. If we grant all this, however, it simply shows that at an important point national predilections influence international conduct, and that we should be the more zealous and philosophic stu- dents of national law. To follow this thought would be beside our im- mediate purpose which is to deal with more strict- ly present international phases, leaving national law to purify itself and thereafter to purify the Law of Nations. For the moment we would make the basis of International Law at least as good as that of national law. today's interxational law supeeficial 57 CHAPTER VI SUPERFICIALITY OF TODAY ^S INTERNATIONAL LAW * Perhaps there is some branch of legal knowledge which has received less analysis than has Inter- national Law, but it does not at the moment appear what that branch may be. The books, to all intents and purposes, fail to uncover the differences be- tween ordinary usages and conventional agree- ments, adjective law and the basic laws by which, consciously or unconsciously, masses of mankind embodied into States are controlled — laws which when violated bring inevitable punishment. Little attention is given to the penal and natural sanc- tions which follow the breaking of true or funda- mental International Law. The State is treated as if it were a non-moral institution, not subject to the workings of any law higher than itself. Such a non-moral thing as a rock is constructed accord- ing to and controlled by the operations of a great variety of natural laws. Writers have been strangely blind to the fact that a State is but an aggregation of human units, just as the rock is an aggregation of molecules, and that it is not free from the laws surrounding individual and col- lective human existence. Wrongs which may be * From Tiie Advocate of Peace, January, 1922. 58 democracy's international law intiicted by and upon individuals are not changed into rights because the State is brought into action. The student is perplexed and appalled by the apparent complexity of International LaAv — a com- plexity which exists largely, however, only in the minds of its professors and not in the subject itself. He is furnished with no clew to assist him out of the artificial labyrinth. He is told that the sources of International Law are to be found in the writings of eminent authors, in the practices of nations, and in conventional agree- ments between nations, such as are ordinarily em- bodied in treaties. He is not warned that much of such so-called law is but the crystallization of wrongdoing on the part of nations. It is largely left to him to discover, unaided, that he has been given mere enumerations of facts, and not the re- sults of diligent study as to the nature of law itself. He is taught that there can be such a thing as the laws of war despite the fact that the usages of war contain none of the attributes of law. The student, relying upon the instructions of a professor who has not been trained to use his own mind, mil be encouraged to believe that a State is a creature outside and beyond law, sovereign in itself, and that, like the king, it can do no wrong. He must himself discover that this conception of a State is medieval, feudal and aristocratic — today's international law superficial 59 certainly not democratic. At the same time that he is assured States are sovereign in their foreign relations, he is told that equality exists between them — two ideas utterly irreconcilable. The sov- ereigii knows no higher law. Equals may not, without violating equality, seek forcibly to impose their wills upon each other. If they do, then they violate law — real International Law. Thus the student has little reason to believe that there is such a thing as basic International Law — law which may not be disobeyed except at the cost of damage to the State itself and to humanity at large. It is not given him to learn that there may be a comparative jurisprudence paralleling Inter- national Law. The only exception to this is the casual suggestion that the United States is a Union of States resembling in their interrelations nations at large, and from whose Constitution suggestive infonnation may be dra^\ai. But, if the subject is pursued, even here emphasis is laid almost exclusively upon the Union's system of fed- eral courts. The real source of the strength of the L^nion — the freedom of intercourse and traflSc be- tween the States — receives scant notice, and the unlawfulness (in nature) of interference Avith com- merce between nations is ignored. The penalties for the breaking of this law in international rela- tions remains unperceived. 60 democracy's international law It is due to our lack of imagination that no basis is found for comparative jurisprudence between the law controlling" States as organized bodies of men and the law controlling individuals. We en- tirely forget that, in the slow jjrocesses of the ages, we have worked out a basis of human right which may not be ignored when we consider the State at large. But mankind has discovered, as to the individual, that he may not murder or steal; that such acts are antisocial, and therefore pro- hibited by natural law and to be punished, directly and corporeally, by civil law. It has further been discovered that the individual possesses natural rights — rights that we know are natural, because their infringement brings, sooner or later, punish- ment upon the infringer, whether a person or a State. Nevertheless, no comparative' jurispru- dence has yet taught International Law^ writers that theft of possessions and murder of their OAvn- ers committed by a State, a multitude of individ- uals, is as antisocial an act as a like offense com- mit ited by a single individual. Apparently no International Law writer will recognize these and other relevant facts and ap- preciate the lessons to be drawn from them until the data of International Law — real International Law — have been collected and arranged and their bearings understood. So far this work has not today's inteknational law supeeficial 61 been done either systematically or intelligently. We do not speak a true lang-uage of International Law, but a jumble of sounds wliicb we have not resolved into their component elements. International lawyers as yet are without a clear lest which they can apply to the facts of a new situation and determine from its probable results, as shown by experience, what may be the righteous course to pursue. If with their faulty vocab- ulary and store of misunderstood facts they can find no analogy, they are lost in approaching the problem. They do not know whether to test it by the gallon, bushel, wind gage, pressure gage, weather-cock, Ten Commandments, or by the prin- ciples of Machiavelli. They are worse off than a case lawyer confronting strange conditions. The votaries of the International Law of today write grave books for the edification of the student about the events of any war which may have passed over the world, and their manner of so doing will serve to illustrate how counsel is darkened. The political facts leading up to the war receive the fullest, though often unenlightened, treatment. The interests controlling political action are lightly passed over or igiiored. The more remote origins of the dispute are not traced out. The immediate events, which are results and not begin- nings, are treated as the groundwork of the 62 democracy's international law trouble culminating in war. Nothing of a funda- mental character is developed, informing the reader or students as to the rights originally vio- lated or the rights proposed to be violated by the institution of war ; for, throughout, the non-moral conception of the State influences or stifles thought. The learned authors gravely consider whether the outbreak was preceded by a declaration of hostilities, or whether the killings commenced without warning, and which would have been the proper course. They discuss the development of contraband v.diich the war has brought about, ignoring the fact that this is equivalent to a dis- cussion as to whether, a man's coat being taken, his vest should likewise go to the thief, and, if so, whether the watch should accompany the vest. The occasion arising, much time is spent over the law of blockade, and it is discovered w^hether it has been changed or modified by the events of the war. The fact is overlooked that the alleged law of blockade permits interference with the right of the neutral to trade with one of the combatants, and, justifying violations of natural right, cannot be classed as a sound law. The rights of neutrals are constantly described by them as increased or lessened through the ac- tions of the combatants. No question as to the today's international law supeeficial 63 right of a combatant to subordinate the interests of a peaceful nation to liis wishes seems to arise. The writers discuss the use of dum-dum or ex- plosive bullets, gas, and other methods of human extinction, and seek to discover which is the most in accordance with Christian usage and, let us as- sume, the Sermon on the Mount. They examine the facts as to the levy of contributions upon the civil populations by the several armies, but any doubt as to the entire honesty of this practice is never expressed. As to what they regard as rules controlling the use of balloons, airplanes, bombs, and submarine mines, they call the changed practice a develop- ment of law. In doing these several things they do not cite the conclusions of any tribunal in which the life or wellbeing of man is regarded as of any moment, or quote from any legal decisions at all, except it be the dicta of the prize courts of the parties in conflict. They think that they are developing law when they are merety setting down a narrative of facts concerning violations of the rights of untram- meled human existence, violations which are the negation of law. The reservatioji might be made that these facts do have the subtle relation to the 64 DEMOCRACY S INTERNATIONAL LAW written or unwritten law whicli the acts of a crim- inal have to that moral code he has violated. As furnishing data for real International Law, they are exactly comparable with the criminal history of Jack Sheppard or with accounts of the exploits of others who have perished on Tyburn Hill. The books being published, the reviewers pro- nounce them to be ''notable contributions to the science of International Law" — a commendation to which no criticism may be offered except that the volumes are not scientific and that they have no relation to real law. It is not just to say that the writers of these tomes have performed utterly useless labor. There is probably sufficient reason for the classification and recordation of even the most unsavory events. But let us take this work for what it is, and not associate it in any way, save as a warning, w^ith what really is International Law. The true duty of the collector of the data of International Law, upon whose work the jurist must predicate his ex- positions of law, is not far different from that of the actor, whose place it is to hold, "as 'twere, the mirror up to Nature; to show Virtue her own feature, Scorn her own image, and the very age and body of the time his form and pressure." Bearing in mind and applying the Shakspearean suggestion, take this concrete example: In 1912 today's inteenatioxal law superficial 65 a war broke out between Italy and Tripoli. Italian troops invaded Tripoli and finally con- quered the country. What should be the attitude of the student of international events toward this war, and what would he find to examine and dis- cuss 1 He would consider the causes of the war, in- quiring particularly whether or not Italian states- men believed Tripoli to be a land of potential wealth. He would examine, and perhaps discover, what important Italian business interests desired profit in Tripoli in the way of control of natural resources, extension of banking institutions, con- cessions for railways and like means of com- merce, and what other business and mercantile institutions regarded it as a fruitful field for their endeavors. He would inquire curiously as to whether or not there was an interlocking political and business directorate controlling Italian poli- tics; whether or not the interrelation was repre- sented by the same people or by those intimately allied with them, or whether or not there existed financial obligations on the part of the politicians toward the business men. He would discover whether or not there was a jealousy between those whom we courteously call Italian statesmen to- ward other countries because of the processes of subjugation in North Africa which had been car- ried on by England, France, and Spain. It would 66 democracy's international law be a matter of moment to him whether or not, as against these nations, Italy was claiming her share of the loot in a field the conquest of which was re- garded as relatively easy, and whether or not this conquest was claimed by Italians and regarded by politicians in other nations as Italy's compensa- tion for her good nature while those countries were gaining control of resources in a land com- paratively near to Italy. He would investigate as to whether or not an artificial desire among the people for the occupancy of Tripoli had been cul- tivated through artful repetitions of the fact that over tw^o thousand years before ancient Rome had subdued it. His interest would be excited if he found that the idea had been disseminated among the Italian peasantry that Tripoli was a land of large mineral and agricultural resources, from the possession of which workers in the fields and mines of the Peninsula might hope to gain. He would want to know if minor elements had been appealed to for the purpose of influencing public sentiment in Italy, as, for instance, if the contempt which people of one religion are ready to bestow upon people of another religion had been systematically stirred up, and if an analogous racial contempt so easily brought to the surface had been excited, these not as direct causes of the war, but as stimuli to bring men to the point of toDxIy's international law superficial 67 slaughter. Catchy but elusive watchwords, cre- ated for the occasion, would not be overlooked. Turning to the results of the war, the writer would strive to estimate the value of the ''im- ponderables," as they are termed, such as the hatred and contempt which the war would attach to the name of Italy in the minds of Moslems, and to give full weight to the thoughts of enmity and revenge created among a subject people, thoughts destined sooner or later to find their outlet. He would measure the direct monetary loss to Italj and the burdens placed upon Italian subjects for which they could never hope to have a return. He would try to gage the damage done by the with- drawal of men from industrial pursuits to the ways of destruction, this as affecting the direct physical loss and the necessary moral degenera- tion. He would not fail to examine into the effect of the war upon the commercial and political rela- tions of Italy with other nations. In estimating, on the other side, the benefits, if he could find any, he would inquire whether or not the war had, after all, given an enlarged field of labor for the toiling millions of Italy, and whether or not its financial benefits had inured to an ex- ceedingly small circle of Italian financiers, while the whole burden fell upon the shoulders of those who were already sufficiently oppressed. 68 DEMOCRACl S INTERNATIONAL LAW This examination might well be multiplied as many times as wars have been indulged in for the past fifty years. Thus would be furnished a tremendous amount of data available to all peo- ples disposed to enter upon armed conflict. It is entirely safe to say that with this data gathered together new proof would be afforded that aggres- sive war cannot be carried on, and even what Grotius called ''a just war" cannot be indulged in, without bringing terrible punishment upon the nations concerned. After all, we shall add but lit- tle to the wisdom of the poet who wrote : When thou hearest the fool rejoicing, and he saith, "It ia over and past, And the wrong was better than right, and hate turns into love at the last, And we strove for nothing at all, and the Gods are fallen asleep; For so good is the world a gi'owing that the evil good shall reap;" Then loosen thy sword in the scabbard and settle the helm on thine head. For men betrayed are mighty, and great are the wrongfully dead. And thus it is that war breeds war, and we be- come involved in a vicious circle, recognized as legitimate by the International Law writers, but in which justice as between man and man, between nation and nation, plays no part. IMPERIALISTIC ADVENTURE 69 CHAPTER VII IMPERIALISTIC ADVENTURE UNDER INTERNATIONAL LAW We have pointed out that the State is merely a multiplication of individuals. As such it is or should be, allowing only for such different situa- tion as a partnership presents when contrasted with that of a single individual, controlled by the same fundamental laws, subject to the same re- wards and punishments as a mere human being, and endowed with the same ambitions, desires and passions. Nevertheless, in the discovery and ap- plication of the law as applied to the single individ- ual and to the group called a State, greatly differ- ent degrees of progress have been made. In the course of the centuries it can be truthfully said that inquiry into rights, duties and penalties for wrongdoing so far as the individual is concerned have advanced infinitely more than have inquiries as to the same matters with regard to States. For an indefinite number of thousands of vears mankind has bloodily fought its way until it has reached a point where many fundamental legal rights have been made manifest to the stupidest so-called lawgiver because of the punishment fol- lowing upon their denial. We have learned that 70 democracy's international L.A.V/ ail have a right to life as between themselves, though we have not advanced this knowledge to embrace the individual in his relations with the State. We know that a man is entitled to libertv, that is to say to go to and fro as he pleases; to employ himself or to be employed in any gainful way: to enjoy such amusements as he will. Inci- dentally we have proclaimed in our Constitutions for his benefit and for the benefit of all that he may publish by print or word of mouth his ideas on any point whatsoever. The Avritten law has recognized his right to acquire property, but has •declared that he may not do so throue'h violence or Ibv fraudulent device condemned by law. We have made these and other advances, but it remains true, and we must bear in mind the fact, that even these lessons have been imperfectly learned or are imperfectly comprehended in all their implications. To a degree the exact truth of any conclusion we may have reached is vitiated be- cause of this fact. Merely by vray of suggestion, as the full arg-uinent is quite aside from our purposes, it may be said that Avhile we enjoy freedom of speech usually at any rate as to religion, we may not indulge in it in an unrestricted manner as to the conduct of the government under which we live. Particularly is this true in war times when the government, while willing that people should IMPERIALISTIC ADVENT UEE 71 be critical as to the ideas underlying other institu- tions than itself, fiercely proclaims its actions as outside of the range of ordinary discussion. So also while we rightfully recognize the existence of property, the word itself has not received its final definition, and the nature of property is at all times subject to re-examination. This we mil remember was decidedly the case as late as the war between the States, and we will not forget that an infinite amount of property was destroyed with- out compensation (that is, not regarded as property) when the prohibition amendment was adopted. Again our attitude toward honesty is largely conventional. If the written law tells us that a certain line of conduct in a given case is dishonest the law is usually right, and we accept it. With equal submission we regard that as honest to which the law gives its stamp of approval or at least which it does not formally reprobate. This saves the labor of thought. Nevertheless, accurate conceptions as to private honesty do multiply with the rapid increase of personal relationships. However imperfect may be our appreciation of right and wrong as affecting individuals, and whatever changes the future may have for us, this branch of law is better understood than is International Law, which has many valuable les- sons to learn from it. For this situation there are 72 democracy's international, law excellent reasons. As stated, knowledge of law on the personal side lias been developing for thous- ands of years. When we treat, however, of growth in knowledge of law in its international phases, we must remember that its history is a short one. During the time of Roman supremacy after the rude contests of earlier years, all outside the Roman pale were barbarians, not forming real nations. Until the Middle Ages a foreigner was almost invariably regarded as an enemy. These considerations, without undertaking to develop them, forbade increase in knowledge of any true International Law among the Romans. During the early Middle Ages the nations for the first time began to recognize themselves as entities between whom some sort of relation must exist. But it was then the courtier, the immediate servant of the king, who was the agent through whom these relations were carried on, and who led the professors, controlled by feudal teach- ings, to ]ay down with unconscious sarcasm what they called the Law of Nations. Our later develop- ments, as has been pointed out, show the defects of the origin of this branch of what now is only pseudo science, defects which are obvious enough to all except those who are too close to it to see. International perceptions are perhaps slower in part because such relations are of necessity fewer IMPERIALISTIC ADVENTURE 73 and do not command the vigorous examination that acute and immediate personal interests dic- tate in private affairs. If we have through fire and blood wrought out a theory of human rights as affecting the individ- ual which, while defective, offers nevertheless the best working basis we have, why should we not apply a like theory directly to the State? If we take this course, forgetting the prepossessions which affect us because of conditions as they are, we shall be forced to conclude that that which is dishonest in the man is dishonest in the State ; that which is cruel in the individual is cruel in the State; that which is contemptible in the one is equally contemptible in the other. No bias of patriotism should blind us as to the essential nature of national acts and no blindness induced by custom should prevent our seeing the obvious. A conclusion from all this is that there is a duty imposed upon those who would influence in the lines of justice the affairs of nations, — and this includes every individual in our land, — to demand that Uncle Sam should be, according to the best theoretical and practical standards, a gentleman and an honest man. And after all true Inter- national Law has no requirement other or greater than this. It has no mystery about it. It calls for nothing except clear and clean thinking. Ttt democracy's intern atioxal law There is a copybook saying- to which we give formal assent that "honesty is the best policy.'' If this be true with regard to individuals, slight examination will show that it is true as to nations. The trouble has been that governments, proud in their own conceit, limiting criticism from within, impatient of it from without, convinced of the righteousness of their actions, and lacking the cool, steady control of ideas of justice worked out and laid down within the books of International Law, have run riot over the rights of their neighbors. Let us apply the rule we have just suggested. If, to illustrate, that dictate of honesty which prohibits a man from forcibly seizing the goods of his neighbor had prevailed as between nations, would the victor after success at arms in- flict upon the loser the loss of territorial power, with delivery over of moneys obtained from the subjects of the losing country, or hold the defeated nation in bondage of debt iiinning over indefinite years! If, for instance. International Law had been ''on the job" would it have failed to recognize that a government is a mere agency acting for others ; that the fines and penalties levied upon a government were, in point of fact, not levied upon the government at all but upon each individual whose purposes it was created to serve? AVould IMPERIALISTIC ADVENTLTlE 75 not International Law have seen that the success- ful contestant was taking money from human be- ings represented by the unsuccessful government? Would it have been able to square this conduct with the most ordinary principles of honesty? Would it not have perceived that the infliction of a penalty upon the loser government was i^i'o fanfo reducing its subjects to a condition of slavery! For all that slavery does is to take without recompense the un- willing labor of one man for the benefit of another. In the presence of this situation, the law writer calmly says that such is the fortune of war and such is the right of the victor. By what right is this said f By no right except it be that superior power is recog-nized as right. But power and right do not spell the same thing. If it be said that a State, by the mere fact of its existence, can convert that which was wrong in the individual into some- thing commendable on its part, we may ask at what point the subtle alchemy which reverses the charac- acter of acts begins to operate. The private in- di^ddual has, we shall agree, no right to kill or steal. This act is antisocial and under the ban, therefore, of a natural law, even when men are living outside the jurisdiction of formal statutes. We will agree further that no two individuals pos- sess that right. We will perhaps agree that when a group of men is united into a village com- 76 democracy's international law munity, they are but fortuitous collections of human beings who are not endowed with the mys- terious power of transforming original wrong into right. They may not therefore rob and slay mem- bers of a neighboring village. We will hesitate to declare, and we will not tolerate among ourselves, that a city can rightfully, because of its jealousy of a neighbor, destroy its inhabitants ; but we sud- denly discover that when several cities unite and call themselves a nation the restraints which had controlled the individual or the little group or the village or city no longer exist. An enlargement of the members and a change of name, it would appear, have a certain moral efficacy, rather elusive it must be confessed, but very satisfying to our desires for gain and power, so that wo never examine to discover if there be any weakness in our chain of argument. As practical men we ac- cept things as they are, and with the folly so often incident to practical statesmanship we ignore the necessary sequences of our actions. If we turn to the results of our line of conduct, particularly as exemplified in the most modern examples, we find that it brings its own peculiar punishment, and thus its wrongful character i& demonstrated. We shall show that this is especially true today. Under the old feudal con- ception the subject was merely the chattel of the IMPERIALISTIC ADVEXTURE 77 lord and not an integral part of the State. The Prince by his voluntary action could transfer his subjects from his control to that of other poten- tates without exciting thought or resentment on the part of people who were thus treated as cat- tle. Of old, therefore, the penalties might have been slight and practically non-existent. Feudal- ism might have permitted this line of conduct with little demur. Today a democratic Law of Nations is coming into play. Let us take a recent example from the history of our own country. In 1898 Spain, bowing to superior force, yielded her corrupt sovereignty over the Philippine Islands to the United States. As it is argued, we quieted our consciences by paying Spain $20,000,000. Spain was herself an interloper and a foreign power in the Philippines, even though she had exercised control there for three centuries, the Spanish people the while be- ing punished during every year of those three hundred in that they were compelled to send armies to those islands and to expend relatively enormous sums on navies to insure their subjection and retention. As a result of the conduct pursued by us, 5,000 American lives were lost in the Philippines, and year by year our naval expenses as well as our army budgets have been enormously increased by 78 democracy's ixternational law an attempt like that of Spain to subdue and preserve our forcible acquisitions. Our exploits in the Philippines, including the strangling of a budding republic, have thus vastly increased the steady burden of taxation in the United States, and every worker, however modest his income, and every man of wealth whatever his possessions may be, finds himself compelled yearly to part with appreciable sums of money for having main- tained what some call the tawdry glory of our imperialistic venture. The evil we are told does not stop at this point. We have set an imperialistic example to Japan. Further, if we have been troubled because of tense- ness of relations with that dynastic country, many say it is almost wholly because we have interjected ourselves into the affairs of islands inhabited by an alien people close to Japan and many thousand miles away from us, making our imperialism a present danger to Japan. Our punishment ap- pears to have been direct and certain. Some among us also argnie that we are salving our consciences with the thought that we have treated the Filipinos better than some other ex- ploiter nation may have treated the peoples of Asia or Africa which have come under its power. We have, it is true, taught Filipinos sanitation. We have given them education. We have incul- IMPERIALISTIC ADVENTURE 79 cated ideas among tliem that they did not before possess as to those principles of government which most appeal to us. All this is doubtless true. The hollowness of our excuse, it is claimed, is exposed, however, when we ask ourselves as a people whether we would have been willing to have spent on education and sanitation in the Philippines, without political control and without hope of economic gain, the money we have parted with for their possession. The answer must be promptly in the negative. The development of the Philip- pines in the fashion which we use as an excuse, we are told, renders our future punishment all the more assured, for that every Filipino whom we train according to our ideas must ask himself why our practices in the Philippines in matters of gov- ernment have not accorded mth the principles we maintain as valid at home. Thus he grows to be a more and more intelligent and dangerous opponent of American rule. In the end it is claimed as manifest to all vrbo will not shut their eyes that the Philippines will gain their independence from us with no thanks returned to America. If our exploit in imperialism in violation of fundamental International Law, and involving, as said, a strong-arm taking of political poY^^er for economic benefits, should seem too painful a sub- ject to pursue, let us ask ourselves the net gain to 80 democracy's international law Germany in the long run througli the taking of Alsace-Lorraine. Assuredly this was one of the elements which made, some time or other, another Franco-German war a practical certainty. It gave an impetus to Germany's course of military devel- opment and consequent imperialistic adventure which would have been largely lacking if these lands had not been taken. If we need other evidence that violations of natural right indulged in by nations carry with them an appropriate punishment and therefore stand condemned in the forum of real International Law, whatever professors may say, or fail to see, let us turn to India. We find that this country, vast in population, was first seized by England for the benefit of a trading corporation; and that gradually the workings of the corporation were taken over by the English government. It is be- lieved that for two centuries it has been exploited as we say in common parlance for the benefit of England. In fact this belief has but the semblance of truth. India has been held for the benefit of the English army ; for the benefit of that small sec- tion of English society which has furnished its civil servants; for a little circle of commercial exploiters, and to the detriment of the average man of England. For what has this adventure produced? Its retention has made necessary an IMPERIALISTIC ADVENTURE 81 enormous navy and an increased army. Gibralter, wliich has no proper relation to England, has been taken to keep the naval route clearer. The same reason has justified the holding of Malta, with no natural geographical or other relation to England. Again, England, by doubtful methods, took hold of Egypt, and made a subject nation of millions of people who know England only to hate her. Aden was added to the list to help complete the line of protection. The impoverished and suffering mil- lions pf the English Islands, many of them stunted in their physical growth and mental development, attest the failure of the English in this imperial enterprise. It is true as ever that — ' ' Hell is a city much like London." We may say all this with genuine admiration for the superior progress in establishing and render- ing secure their rights, England's subjects have made during the centuries. To England we owe much of the political and social advances we en- joy and which we fondly believe superior to those enjoyed by the citizens of other nations. She her- self has failed to carry into international relations those ideas of right action which she has been compelled to recognize as paramoimt between man and man at home, and the handwriting on the wall grows more and more distinct. 82 democracy's international law It is a dreary, sordid history we have to review when we consider the degrading growth and cor- rupting decay of governments which have indulged in foreign conquest — a history from wdiich men have so far learned little and International Law as tauglit has learned nothing. Take the instances wdiich naturally spring first to one's mind. We have Spain with its wonderful colonies, and Portugal in a like situation, each after infinite ex- penditure of men and money flattering itself with the story of its greatness only to sink reduced to a low scale of relative standing among the nations of the world. England in a more modern Avay fol- lows their example. We have the United States feebly tracing the same course, tormented by con- science and suffering materially. All these things have been done in the name of the glory of the kingdom, or empire, or we might claim for the United States that of the American people. Each instance has brought unearned and undeserved wealth to a select few. Each instance has spelt poverty and moral degradation to the immense mass. Such violations of real International Law, if one's taste be not too particular, may seem commendable in autocratic government. They have nothing in common with democracy, the duty of which is to secure the wellbeing of the common man above all things else. IMPERIALISTIC ADVENTURE 83 The universal results of these attempts to sub- ject alien and foreign nations to the rule of the conqueror, with the consequent injury and ruin of nations taking this course, points to the existence of a natural Law of Nations infinitely more sacred than the words of the printed page. We will be told that this may be true, but it is all too idealistic for a practical world. But prac- tical men, ready to take momentary advantages of opportunities for material gain, have brought enough destruction upon the world. Idealism should have its day. Meanwhile we will not forget that millions of men have offered up their lives for false ideals. Our duty to discover the true ones in international affairs is imperative. 84 democracy's intern ationax. law CHAPTEE YIII DEFICIENCIES OF INTERNATIONAL COURTS UNDER PRESENT CONDITIONS ''Justice, Sir," said Daniel Webster, *4s the great interest of men on earth." There is little doubt that in making this statement Webster phrased an universal aspiration. Because of this concern of mankind, it is easy to understand that in seeking to build such a world state as would insure justice and consequent peace men should have turned to tlie idea of courts. The unfortunate fact is that in so doing mechanism has been em- phasized rather than principle. Instead of in- quiring diligently into the elements of justice, how- ever administered, the machinery which we use to obtain justice has seemed superior to the spirit which must guide the machinery. We have acted as though we thought that if we once possessed the tools justice would be ground out automatically, without further eJEfort on our part. Laboriously we have been placing the cart before the horse. The point of the argTiment has been missed. We might as well regard Cliina as a land of justice be- cause it possesses courts and judges. We would overlook the fact that in China a judge vn\\, with the same vocal inflection, direct a man's head to be removed whether he steals ten pieces of ' * cash )> DEFICIENCIES OF INTERNATIONAL COURTS 85 or murders liis wife. The principles of even- handed and comiDensatory justice are unknown, al- though the courts function with certainty and ex- pedition. We must awake to the fact that there is no magic in the name of court. The conception remains prevalent, hov^ever, that if we but establish a body which we may call a court, differences between nations will be set- tled and war will cease automatically, or at least through the efflXix of time and by the growth among nations of the habit of resorting to judicial pro- cesses. It is forgotten that the judicial hanging of sheep stealers and highway robbers in England, persisted in over hundreds of years, did not make life more secure or appreciably affect the census of thieves. Better conditions prevailing in Eng- land and in this country were accomplished by the rise in the standards of comfort, education and morality which was going on entirely outside of courts during all the time that the gibbet and chains were familiar spectacles. This rise has gradually educated the courts themselves into clearer ideas of that justice with which they were originally unfamiliar even superficially. For these reasons we should stress the study of jus- tice rather than that of fonns of administration, whether classified, under present nomenclature, as legislative, executive, or judicial. 86 democracy's international lav/ In our search we will not forget that peace, which it is thought will be brought about through the establishment of courts, is not a thing to be sought for as a tangible good, but will be the sequence of knowledge and practice of justice, coupled with a gradual suppression of interested ambitions, unenlightened selfishness and national lawlessness. The courts at best have but limited usefulness. They interpret or administer what is reputed to be law or what, under all the circumstances of the case, bearing in mind existing acceptations of law, may be regarded as proper. While we speak of them as courts of justice, they are but imperfectly so even in private affairs. Up to the present time it has never been proposed in any authoritative way to establish international courts of justice ap- proximating in their workings even to the imper- fect advancement attaching to those for the set- tlement of disputes of individuals. We will not subject ourselves to any illusions witli regard to courts. They are not better than the intellectual and moral surroundings of judges would require. They make no innovations. They blaze no trails. They are essentially and neces- sarily reactionary. In such advances as they make, from the nature of things they are often be- hind the best thouglit of the community. Their er- DEFICIENCIES OF INTERXATIONAL COURTS 87 rors and their slowness of advance are continually corrected even in this country by statutes more directly expressing public progress or by Consti- tutional amendment.* This is not to attack them or to minimize their usefulness, but simply to state the facts of the situation. If we consider, there- fore, our experience within the nation, we have no right to expect large growth in our knowledge and application of justice to come through the exist- ence of courts. At the most an international court as now con- templated, and we shall refer to the subject later, will be a court of law and not of justice (whatever name be given it), two things confusedly merged into one in the public mind. Even as to the national courts there is a certain truth in the re- mark of a well-known judge that the purpose of courts is not to administer justice but to settle disputes. To illustrate the difference betw^een the administration of law and the administration of justice by a national court we will take the ease of a fugitive negro slave before the war who had been found in a Northern State. Courts of law, being then as now controlled by statute, would direct a return of the fugitive to the master. This * E. G.: As to statutes, Federal Employers' Acts, revising "Fel- lowservant ' ' and ' ' assumption of risk ' ' doctrines of courts, and as to Constitutional amendmnets, the "Income Tax amendment," reversing the ruling of the United States Supreme Court. 88 democracy's international law was done even when the whole community ab- horred the action taken and the judge himself felt that he was inflicting injustice. Many a time has it occurred in other cases that the judge has de- tested the thing he was called upon to do, but as a servant of the State he has followed the course its codes have laid down for him. AVe need not follow this line of discussion further. It perhaps suffi- ciently appears already that law and justice are not synonymous and that even in national affairs we have much to do to make their lines coincident. Internationally we can scarcely be said to have commenced this work. In discussing international courts there are two great questions about which we should make our- selves entirely clear, as, lacking clarity of vision with regard to them, we are likely to meet with severe disappointments. The first of these ques- tions is, what shall be the basic principles which must control the operations of an international court ? The second is, what shall be the limitations or the extent of jurisdiction of such a court? Let us address ourselves to the first of these questions and determine if we may whether, in the existing state of what is called International Law, we may expect from an international court results commensurate with its assumed importance. If we find as the result of our studies that the princi- DEFICIENCIES OF INTERNATIONAL, COURTS 89 pies wliicli as matters now stand are to control the operations of tlie court are in themselves outworn, medieval, corrupt and false, and that the court in its findings is to be guided by them, we must con- clude that the workings of the court mil produce a so-called justice which is warped, twisted, and rotten. There is no secret process by which dross passing through the furnace of a courtroom will be converted into gold. Without taking the time at this point to elabo- rate the argument, we many enumerate a few of the many vicious propositions which today would be accepted by a court. Among them are : A state is a non-moral creation, only to be held responsible to others for its actions by its own consent. A state possesses such a right of sovereignty as enables it by force if it can to impose its will on other states without being judicially accused of wrong for so doing. A state must judge for itself what affects its own honor, \'ital interests or independence. A state, after a successful war, has a right to impose its will upon the vanquished. A state, provided it has sufficient power, may possess interests within the jurisdiction of another state and dictate the management of its affairs. 90 demockacy's international law A state may acquire from an alien conqueror complete jurisdiction over a vanquished people, violence creating title. If we commence, as under present rules we must, with the acceptance of the propriety of such a chaotic condition of law as we have just indicated, what right have we to expect that any court, with its conservatism and love of precedent, can bring about changes beneficial to mankind ? Tlie changes must come from some other source, and, being made, it will be the duty of the courts to give them suitable application. We are building our pro- posed judicial system upon a shifting bed of sand. But if we had basic law such as self-respecting and really intelligent courts might administer un- der all circumstances, then, second, what about the jurisdiction w^e propose to give our international judicial bodies? National courts as at present constituted pos- sess infinite powers which we shall find refused to international courts. The national court has powder to say ''Thou shalt not" as well as "Tliou shalt." While no criterion as to their relative im- portance, it is interesting to note that among the Ten Commandments given the Children of Israel there are eight which in effect say ''Thou shalt not," and there are but two which in truth are affirmative commands. DEFICIENCIES CF IXTEENATIOIsrAL COURTS 91 The ordinary court of law will enter a judgment fixing the liability of the defendant and command- ing payment in a civil case or prescribing condem- nation in a criminal one. Up to this present all that international courts of arbitration, as they are called, have ordinarily accomplished has been to command the payment of money for damages inflicted or losses incurred. It is true that in some instances these courts have been authorized to lay down rules of future conduct. In so doing they have not acted in a judicial capacity but in a legislative one, and to this extent have not been true courts. Let us revert to the further powers of our national courts. Thev mav sav, as international courts may not up to the present, "Thou shalt not." They stand in the way of trespass upon property and in certain instances of trespass upon life. They have a general power to re-place the parties in litigation in the positions they occupied before offenses were committed. Their jurisdic- tion may also be what one may call anticipatory. Commission of wrong being feared, the strong arm of the court is invoked to prevent it. The veiy existence of these powers has in innumerable in- stances so influenced the minds and conduct of men as to make resort to them unnecessary. These 92 democracy's international law things may not be done internationally lest we offend tlie mystical sovereignty of the State. In addition to the ordinary remedies to which we are accustomed among ourselves there may ex- ist the writ of quo warranto through which the court inquires as to why particular offices are taken or held without right. There is further in the common-law practice the writ of mandamus, by virtue of which the court directs ordinarily not the payment of money but the doing of things which have been left undone and which in law should be done. There are of course further legal remedies, but these will suffice for the purpose of illustra- tions. Upon these fields no international confer- ence has yet had sufficient temerity to venture. If it be thought that some error is made in these views with regard to the narrowness of the juris- diction of international courts, let us consider a proposed field of action as recently worked out by eminent jurists who recommended their scheme to the League of Nations. And such comment as we shall make will not be directed to the defects of their work. We point out that Avith abundant foundation to be discovered in the so- called Law of Nations of today, such work is of comparatively slight value because the founda- tions are in themselves rotten. DEFICIENCIES OF INTERNATIONAL COURTS 93 In approaching the subject the jurists in ques- tion had in mind the creation of what they esteemed to be a court of justice rather than a court of arbitration. The distinguishing differ- ence between the two is that a court of arbitra- tion carries with it the implication of adjustment and settlement, the bringing together of nations on an agreeable sort of basis not necessarily that of exact law, while on the other hand a court of justice is presumed to act in strict compliance with the universally established ideas of law. The sources of International Law suggested to control the judgTuent of the new court were : "(1) International conventions, whether general or particu- lar, establishing rules expressly recognized by the contesting states; "(2) International custom, as evidence of a general prac- tice, which is accepted as law; "(3) The general principles of law recognized by civilized nations; " (4) Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law."* Such law, however, was only to be invoked, save with the consent of two opposing parties, where the court was called upon to — "Hear and determine cases of a legal nature concerning: ''(a) The interpretation of a treaty; ''(b) Any question of international law; " (c) The existence of any fact which, if established, would constitute a breach of an international obligation; * The Project of a Permanent Court of International Justice, by Dr. James B. Scott. 94 democracy's international law "(d) The nature or extent of reparation to be made for the breach of an international obligation; " (e) The interpretation of a sentence passed by the court."* While other matters might as indicated be re- ferred to the court, there was nothing obligatory, morally or otherwise, on anv nation to make such reference. If a dispute did not involve the matters above mentioned the court became pow^erless. In an anticipatory way, preventing in advance the rising of difficulties, the court was allowed to suggest provisional measures to preserve the re- spective rights of either party, but these measure?? it is clear from the whole document could only be suggested in cases where the court might have ulti- mate jurisdiction, its limitations being as stated above. The sum and substance of it is that only in what is termed a "justiciable matter" should the court act, and that otherwise the nations were to be free to submit matters upon which they were in discord. The curious thing is that the things w^hich w^ere left outside the court's powers were the very things about which nations fight, and those as to which jurisdiction was to be given were those which do not ordinarily excite the pas- sions of men. This will seem true when we remark that nations are not given to going to war over questions of the interpretation of treaties, abstract propositions of International Law, the existence of facts constituting breach of international obliga- DEFICIENCIES OF INTERNATIONAL COURTS 95 tjons (ordinarily collection of debt due founded upon postal treaties or application of a customs regulation and the like) or the nature and extent of reparation for non-payment of a debt. They go to war because of interference with what they as- sume to be their vital interests or, in cases now growing rarer, of infringement upon what they are pleased to term their honor. These questions are not regarded as justiciable, and therefore may only be made the subjects of examination by courts when all parties agree. With al! their weaknesses the propositions of the jurists were too advanced for adoption liter- ally by the League of Nations. It will be instructive to examine through an illus- tration the difference under these rules between the attitude of national and international courts. The young law student is told early in his career of the complainant seeking relief from the chancel- lor saying that he and the defendant had engaged in business together on Hounslow Heath; that in the conduct of their affairs they had accumulated certain watches, purses and other articles of value ; that these were in the possession of the defendant who liad refused an accounting, for which prayer was made to the court. If memory serves, the com- plainant and his lawyer were both sent to jail for contempt, and taught that no accounting between 96 democracy's international law thieves would be granted by a court of justice, and that it was necessary always for the complainant to come into court with clean hands. Assume that nations A and B agree that for the benefit of their respective nationals they will, by the use of navies and judicious suggestion of the use of armies, and other forms of compulsion or corruption not in private life considered legiti- mate, obtain from nation C (the selection of the initial is purely fortuitous and need not be consid- ered as indicative of any particular country) busi- ness and commercial concessions of great prospect- ive value. Assume success in the undertaking. Assume that afterward a dispute should arise be- tween nations A and B as to the division of profits under the agreement through which these benefits were obtained. The world court, as it exists, would interpret the agreement and divide the profits, and then stop. International Law Avould not have recognized anything inherently wrong in the conduct of nations A and B, and the courts would recognize their limitations against trench- ing upon the ''vital interests" or "honor" of the disputants. Let us therefore examine and discover if we may what these things are which are so incapable of judicial determination that even courts may not ordinarily examine them. DEFICIENCIES OF INTERNATIONAL COURTS 97 First and foremost we meet the question of the vital interests of the State. This is not capable of exact definition. They are what a State says they are in any particular instance. They vary with the size of the State. Those which are not vital to Switzerland, it being a small country and incapable of enforcing its will upon others, may become vital in the opinion of the statesmen of Japan when she knows that by force of arms she may be able to compel other governments to accept her view. In other words, the connection between might and vital interests is a close one. The weak nation possesses no vital interest which may be main- tained as against the strong nation. The theory of our national courts that they enable the poor man to prevent aggression on the part of the rich finds no place in this proposed international jurisdic- tion. When, therefore, in this regard we entertain the idea that an international court will be a pro- tection, we find ourselves aided by nothing more substantial than the baseless fabric of a vision born from the use of the word "court." But more specifically what are the vital interests of a State f We are right if we say that they refer to little else than policies of aggression, historic perhaps, that the state desires to pursue as against other countries, or policies which find their roots in a fear of damage to be inflicted from the outside. 98 democracy's inteenational law Important, too, in creating these vital interests are the influences of the economically ruling classes in a country. If they have determined upon the selfish exploitation of particular countries con- trolled or occupied by weaker nations, they are often able to influence their governments to pro- tect their capital invested or to be invested, and the selfish interests of the exploiters by a jugglery of language become the vital interests of the State. Tyranny, fear, and avarice are therefore the originators of practically every "vital interest" which may be named. Again we repeat, these are the very things which courts are ordinarily given jurisdiction to check in our national field of action. The formation of courts, therefore, which are for- bidden their consideration appears to confirm the sanctity of vital interests. Underlying all of these phases of vital interests is the fact that the State fears injustice from others or intends to preserve its own power of committing injustices. If all nations were to pool, as it were, their "vital interests," and submit themselves without reserve, under proper condi- tions of International Law, to impartial courts, it would speedily be discovered that so far as the im- mense mass of their citizenship was concerned more had been gained by the apparent sacrifice than had been lost. We are brought again to the DEFICIENCIES OF INTERNATIONAL COURTS 99 conclusion that except by resolute acceptance of right dealing as between nations all the parapher- nalia of courts so far proposed will lead to nothing and that this study is one to be pursued in the first instance far outside the courtroom. We have as a next reservation that of honor. Internationally this offers a curious study. It is not dishonorable among nations for a State to kill the inhabitants of another State, possess itself of their government and its property, subject their inhabitants to the slavery of debt, take away such private property as may seem desirable, use the lands of another State when convenient as the base of attack upon a third State, indulge in any petty meanness in its custom-houses or its waterways or railways ; hamper the development of other coun- tries to the advantage of a few of its own citizens, or commit an enormous number of other offenses born of selfishness or greed. All of these acts in the eyes of the nation committing them are permissible or even praiseworthy, and do not indi- cate a defective sense of morality or retarded intel- lectual development or outraged decency. They are all honorable, and carry with them no con- demnation judged by the standards of existing International Law or practice. The failure on the part of another nation to salute a flag or the breaking of the shield of a Con- 100 democracy's international law sulate by a crowd of ragamuffins may be an infrac- tion of honor and lead to war. It is noteworthy, however, that this mil never take place unless the nation whose honor is infracted is much stronger than that the citizens of which have committed the offense. If the nation furnishing the oifense, in addition to being weaker, possesses commercial possibilities, the control of which would add to the wealth of the more influential classes in the larger one, the infringement upon honor becomes more serious and less capable of adjustment, and im- possible of reference to arbitration. Inaccessi- bility on the part of the. offender will also affect the requirements of honor. A supposed insult to the United States committed by the Swiss will be readily condoned. One committed by Mexi- can citizens becomes very acute. The weakness, accessibility, and potential wealth of Mexico some- how magnify the insult. ''Independence" must not be arbitrated or be subjected to the rude decisions of courts. In- dependence within the range of the proper activi- ties of the State — that is, internal — we may well understand, and vdth this independence no court would undertake to interfere. But what is meant is independence in the actions of the State with relation to other powers. This is absurd today and non-existent. The only way to preserve independ- DEFICIENCIES OF INTERNATIONAL COURTS 101 ence is to shut tight the doors of the nation as was done by Japan before the advent of Connnodoro Perry, or to be an outlaw nation. When a nation enters the family of nations and claims the benefits of its new position, it is no longer independent, but, whether it so wishes or not, finds that all nations in its position are interdependent and controlled by the written and unwritten laws of their environment. The reservation of independence simply means that the State shall itself be the judge of how much of its control over its own external actions it parts with by entering the family of nations. Social order can be based upon no such proposition. We either keep out of the game entirely or the laws of society determine what their exactions against us shall be. We must be either a hermit or an anarchist whose hand is against all government. We cannot be social and unsocial in the same breath. 102 democracy's internatioxal law CHAPTER IX SHOULD ANY INTERNATIONAL DISPUTE BE RESERVED FROM ARBITRATION f* A man presents liimself at the portals of Ellis Island, Our laws, the justice or efficacy of which we do not discuss, require us to question him, "Do you believe in organized government?" He answers, "I believe in government, of course, but let it not interfere mth me. I accept it so long as it does not affect my personal independence, so long as it leaves me master of whatever concerns mine honor and permits me to avenge myself upon all who infringe upon that honor. I believe in gov- ernment so long as it allows me, as sovereign over my OAvn destiny, to determine for myself what in- terests are vital to me and to slay those who in my opinion trench upon them." To the man who so replies, we say: "Your recognition of govern- ment is formal ; your appreciation of right as be- tween man and man is undeveloped. If admitted to our country, you would be a danger to our well- being. In very essence you are an anarchist and as such may not enter. ' ' * This chapter was delivered as an address before the Pennsyl- vania Peace Congress May 18, 1908. Subsequent reflection has shown deficiencies in international courts under present conditions preventing them from having large value. See Chapter VIII. AEBITEATING ALL INTERNATIONAL DISPUTES 103 Let US suppose a new State lias arisen demand- ina: recoo-nition and admission to the family of nations. Its representatives, when entering into treaty obligations with other nations, are per- mitted to withdraw from submission to the judg- ment of any tribunal formed to adjudicate inter- national difficulties, all questions which affect its\ independence, its honor or its vital interests. ) ^ATiether in fact a dispute involves any of these elements, it retains, and is recognized as having a right to retain, the privilege of determining for itself. At most today we ask, not insist, that it shall arbitrate pecuniary claims. When such a position is taken in International Law, is not anarchy grown large legitimatized? Little harm can the sentiments of one man do. His opinions and interests will be corrected and controlled by the opinions and interests of his neighbors. Perforce he must submit to the judg- ment of his fellows all the questions as to which theoretically he claims the right of self-determina- tion. But when a million men, calling themselves a State — which, after all, is but a collection of human units — determine without restraint its justification for war over such questions and even settle for their very existence, thus claiming the right, governed only by their own sense of justice, to steal from and to murder another mil- 104 democracy's international law lion of human units who exercise a similar power, we have chaos unspeakable — chaos legitimatized. By International Law, paradoxically speaking, thus we have regulated chaos. And yet analysis shows that after all there is presented to us but the simple problem mth which we opened, — the right of anarchy, — a problem confused only by the indefinite multiplication of the participants. And we will not lose sight of the fact that even as to pecuniary claims, in almost every case a na- tion may refuse arbitration, upon the pretense that the very advancement of such claims is a reflection upon its honor, perhaps because there is offered a suggestion deemed disgraceful to its administra- tive or judicial officers, to which suggestion it re- fuses to submit. Must we not, then, conclude that our International Law is but taking its first few feeble steps ; that we are just entering upon a long and painful period of education, the end of which will be to assimilate international justice to national justice? Taking a look into the future, we may recognize that the time must come when such a thing as In- ternational Law relating to warfare will be as ob- solete as is today common and statute law relating to the status of slaves. I remember as a boy read- ing a book, then old, laying down the niles of the Code Duello. Today such a work prescribing the AEBITRATING ALL INTERNATIONAL DISPUTES 105 amenities of private murder would seem as out of place in our civilization as, let us hope, in the future will seem the half of the volumes of Inter- national Law which are now given over to the ex- amination of the courtesies of public slaughter. But our course seems clear. We must develop the idea of arbitration, insist that no question is too small, no interest too great, to be subjected to the judgment of disinterested and competent men, for, internationally as well as in our private lives, something on its face immaterial may lead to con- sequences coloring history. Tracing the causes of wars to their obscure beginnings, how often we find that foolish jealousies, accidental or inten- tional lack of observance of the smaller courtesies of life, have lead on and on to the slaughter of thousands. But if apparently small things can with justice and advantage be settled between man and man and nation and nation by submission to impartial men, with how much more obvious rea- son should the larger and more dangerous matters take the same course! And, after all, can those who take part in them best determine whether the matters in dispute be large or small, be great enough to justify the killing of thousands, or in- significant enough to be atoned for by the pay- ment of a few dollars 1 106 democracy's international law How needless does calm investigation show to have been even modern wars conducted ])v men * priding themselves upon their civilization? Can any one living tell beyond a peradventure what was the Schleswig-Holstein question, which involved a bloody conflict. Was there just and sufficient cause for the Franco-Prussian struggle? Does any one attach large importance to the supposed questions leading to the Crimean AVar, and was the Charge of the Light Brigade, immortalized in poetrj^ sufficient return to the world for thousands of deaths among the subjects of four nations? When we look back at all these struggles, stand- ing in the disinterested attitude of strangers to them, living as short a time as from thirty to fifty years after, and consider their doubtful or inade- quate causes, can we not agree that the arbitra- ment of a group of cool and disinterested men liv- ing contemporaneously could, if asked, have af- forded a peaceful and honorable solution? And if in any of these cases the causes were so slight or so involved and so difficult of reasonable statement as to preclude reference to arbitration, may we not think such fact to be sufficient to condemn those engaging in these wars as mere brawlers in the family of nations ? Visible advances toward the goal I have in- dicated have been made, and in the making AKBITRATTNG ALL INTEENATIONAL DISPUTES 107 America has taken an honorable and leading part. Eepeatedly have we arbitrated boundary ques- tions, questions of a nature which, in a less civil- ized age or with less advanced participants, would have led to frightful wars and have been regarded by the countries in dispute as affecting their honor and vital interests. Very many commissions to which Ave have been parties have settled claims disputes touching wrongs to individual citizens of a character which, under less happy circumstances, would have spelt war, and for even smaller ag- gravation than has been involved in them less favored nations have with heartiness entered upon throat-cutting and destruction. Can we not even today take pride in the Alabama Claims Commis- sion, which satisfactorily solved questions which might be classified as of honor and vital interests, although ostensibly determining only pecuniary liability, and which made this settlement at a cost which, compared with that of a week of war, was infinitesimal? Even in the small matter of claims of individual citizens no nation can properly be a judge in its own cause. Many a time has this been illustrated, and I will refer but briefly to its latest demonstra- tion with regard to Venezuela. When the ten com- missions sat in Caracas, in 1903, to determine the claims of as many nations against Venezuela, 108 democracy's international law there were presented before them demands aggre- gating in round numbers $36,000,000. The commis- sions and umpires determined that but $6,500,000 should be paid, or, roughly, eighteen per cent, of the original amount of the demands. One nation, as a condition precedent to the execution of the protocol of arbitration of her remaining claims, demanded payment in full in advance of certain claims aggregating nearly $350,000. For precisely similar claims submitted to arbitration she re- ceived twenty-eight per cent, of her demands, indi- cating fallibility, as I believe, when she acted as her own judge, and demonstrating that the advance pa>Tnent was largelj'' unjustifiable. The experience of other nations before like tribunals was of the same general nature. And the history of claims arbitrations furnishes many similar instances. But what is honor, about which nations hesitate to arbitrate? For theft, for murder, we have a definite measure, bom of the universal conscience, the same yesterday, today and forever ; but honor, as the term is applied, is a mental concept varying with the mood of the times. He who accuses my honor does not rob me. Honor is only to be lost by my personal act. The impeachment of my honor may call for self-examination to determine whether the accusation be well founded. The AEBITEATING ALL INTEKNATIONAL DISPUTES 109 death of the offender does not adjudicate the false- hood of the accusation. But if the delivery of an insult be considered to be an impeachment of honor, should the reply come in the shape of war! If a man or a nation be insulted, as we ter mit, is the insult extinguished by the death of the insulter? Does not his killing convict us rather of want of discretion and temper? Is not the best answer a well-ordered life and es- tablished good reputation? Should not other resort be forbidden to us than declination of further relations with the offender, who, individ- ual or nation, has merely sinned against good manners ? A reservation of independence as not the subject of arbitration seems, on analysis, meaningless though harmless. Arbitration postulates an agree- ment between equals. Questioning the independ- ence of one party or the other involves a doubt as to their equality and is foreign to the idea of arbitration. When we treat of vital interests we touch a sub- ject never properly to be withdrawn from arbitra- tion. What are vital interests? They are today "whatever the nation declares to be such and witli- draws from arbitration. The so-called vital inter- ests are matters of commerce, trade and politics. As to matters of trade and commerce, we shall sub- 110 democracy's international law mit that their advancement as a basis for vital in- terests is founded upon a misconception of the purposes of government. As I take it, govern- ments are formed to preserve the true liberty of the individual, to protect him in his rights of per- son and, as subordinate to his rights of person, his rights of property. They are not formed to ex- tend and develop commerce and trade as such. Properly speaking, no nation has political inter- ests beyond its owai borders, and were we to enter upon the reign of arbitration, no question of politi- cal interest, as we shall attempt to demonstrate, could properly arise. Politically speaking, vital interests are, when analyzed, found to be based upon either a desire to ultimately possess something now belonging to another or a fear that a strong nation may vio- lently so enlarge itself as to endanger us. With the thorough establishment of unrestricted arbi- tration we will not be able to indulge our predatory instincts at the expense of our neighbors. With such condition we will not fear lest another nation so aggrandize itself by violence as to be a source of danger to us. At one and the same time we would restrain our own unjust acquisitiveness and we would lose our fear. The thorough establish- ment, therefore, of arbitration means the cancella- AEBITRATING ALL INTERNATIONAL DISPUTES 111 tion of the term ^S^ital interests" as applied to politics. Can we hope for justice from arbitration? We might, in view of the course of our discussion, re- spond by asking, Has justice been obtained from war? Long ago legislators found that the wager of battle failed to secure justice as between man and man. Without lengthening the discussion, we may believe that armed conflict has not on the whole advanced the rule of right. AAliile at one time war has served to check inordinate ambition, at as many others it has furthered its purposes. We may concede that in private matters justice has often gone forward with halting steps, has even at times seemed to go baclnvard; yet who among us would dispense with the conclusions of judge and jury and revive the wager of battle ? From the beginning, with the advantage of national precedents and experiences, we may ex- pect arbitration to bring us approximate justice. That always exact justice should be rendered may not be expected. The members of our Supreme Court, differing as they frequently do most vitally, will not say that this tribunal has never erred. But, despite the possibility of error, we find that order and the welfare of the community must be maintained even at the chance of individual injus- tice, a chance which no human skill can eliminate. 112 democracy's international law But arbitral history leads us to the conclusion that more than an approximation of right may be expected, that a tribunal which is the center of observation by the whole world will seek to give, and will give, a judgment as nearly righteous as may be. In the whole history of arbitrations but one has ever been suspected of corruption, and, by joint agreement, its findings were reviewed. Slight criticism may be made of the generality of other like tribunals. Today, doubtless, even the English will agree that the findings of the Alabama Joint High Commission were just. Let it not be said that the ideas to which I have sought to give expression are too advanced, are im- practical. It is only by "hitching our wagon to a star" that we may progress. Let us not forget that there is nothing blinder and stupider, nothing less practical, than the so-called practical man; that only among the dreamers of dreams of human advancement are to be found those whom the flow of events demonstrates to have had the clearness of vision of the truly practical man. SOME SUPPOSED JUST CAUSES OF WAR 113 CHAPTEE X SOME SUPPOSED JUST CAUSES OF WAR* Diplomatists and statesmen — we must mention both, for all diplomatists are not statesmen, and all statesmen are not diplomatists — agree often and so express themselves in treaties, that for honor and vital interests nations may wage what is dignified by the title of "solemn war," and that they must be permitted so to do at their good pleas- ure, even though the doors of the Hague tribunal of arbitration swing freely upon their hinges, and possible judges wait the sound of the footsteps of the representatives of litigant states. Honor and vital interests — how sonorous these words sound! Eesolve them into their elements — passion, avarice, commercial and territorial aggrandize- ment — and the result is verbiage so crude as to grate upon modern susceptibilities. Let us not continue to use grand words to conceal ignoble thoughts ! But it is only those aggregations of human units that we call nations that may, without crime and without judicial punishment, slay, burn, rob, and destroy. Why this logically should be the case we * Address at the New England Peace Congress, Hartford, Conn., May 9, 1910. 114 democracy's international law are at a loss to understand. Why the inherent rights of the individual to determine such ques- tions as concern his honor or vital interests should be mercilessly abridged, and why cities and towns (and not nations) should be deprived of the full and free exercise of their most violent passions, one is unable to comprehend. Should not the power of both city and nation, or else of neither, be sub- mitted to the ruling care of the judiciary? Is there anything peculiar about the situation of a city or of a State which should deprive it of the free exercise of its faculties! Let us examine into the question by considering first a couple of sup- posititious cases, either of which may find its full parallel in history, and offering a justification for war fully as well founded as the justification fur- nished for many wars of the past between nations. New York, as we all know, is a great collection of human beings, greater than was boasted by all the cities of Greece, of whose wars we read with sanguinary pleasure, — greater than Rome pos- sessed after she had subdued all Italy. New York- ers are overflowing her civic boundaries into New Jersey, even as Japanese are overflowing from Japan into Korea or Manchuria. Let us listen to the musings of a future chieftain of Tammany Hall, whose domain is coextensive with that of Greater New York. He says : SOME SUPPOSED JUST CAUSES OF WAPt 115 New York is imperia, and every New Yorker feel^ the glow of patriotic pride when he gazes on the vast fleets coming from all quarters of the globe to share in the profits of her commerce. The bosom of every home-loving New Yorker must swell with pride as he contemplates her magnificent structures, at once index and emblem of her greatness. Here liberty reigns, here the son of the poorest immigrant, as illustrated in my own person, may become ruler. But with all this, New York is in her swaddling clothes. Imaginary lines bound her on the north, while to the west the jurisdiction of the city is limited by the North Eiver, beyond which a New Yorker may not go without being in danger of losing his political allegiance and being absorbed by an alien community. Every patriotic instinct demands that New York should extend her boundaries so that her sons may have room in which to live and contribute to the glory of their native city. And witlial a subconscious voice whispers, ''Let this come to pass, and greater will be Tammany and more luscious the spoils thereof." What more effective appeal to true patriotism could be made ! And when you add the promise to the valiant sons of the Bowery or of Harlem that the rich lands of the Jerseys shall be theirs, that the superabundance of their neighbors in cows and corn and strawberries shall be their abundance, can vou not imagine with what fervor the embat- tied warriors of Yorkville and the Bronx, the Boweiy and the Battery, would fall upon their weaJter neighbors across the North River and openly put to the sword each offending owner of a herd of cows or of a promising strawberry patch I And the cause of war, that is, the ostensi- ble cause of •war? No matter. Perhaps a bibulous 116 democracy's ixternational law New Yorker, suffering from the Sunday drought of his city and seeking consolation in Hoboken, has been arrested somewhat roughly and given a dis- agreeable sample of Jersey justice, against which every city-loving citizen of Manhattan raises pro- test and cries for war. Anything will do as long as the desire exists for dominion over rich lands across the river, as long, in other words, as the "vital interests" of New York's rulers — money al- ways being vital — demand an extension of New York's power. And now that we have the honor of New York assailed in the person of her intoxi- cated citizen, vital interests compel war. Yet we live in such an unmanly, effete, and degenerate age and country that should the mighty cohorts of Tammany, desisting from the milder pleasures of Coney Island, advance upon New Jersey, the United States, whose peace had been disturbed, would speedily put them to rout. But withal, reason would rest with the Tammany chieftain. His orators could, with propriety, con- tend that the entity he represents was old enough, big enough, rich enough, to be allowed to fight without foreign interference. With patriotic pride could they point to examples of cities less imi)ortant whose struggles, based upon identical principles, occupy many interesting and lauda- tory pages of history. With swelling pride could SOME SUPPOSED JUST CAUSES OF WAK 117 tliey repel the idea that Californians and Ken- tuckians and Vermonters, having no knowledge of, or sympathy with, their patriotic aspirations, should band themselves together to subdue the manly New Yorker, struggling only to advance his peculiar civilization. Their logic, from the standpoint of the English- man subduing the Boers, the Japanese seizing Manchuria, yes, the American pursuing the Filipino or forcing him to take false oaths of allegiance, would be irresistible. But logic does not always rule, and the New Yorker would find that, save by the permission of the Jerseyites, and with the leave of yokel representatives gathered in Congress from all parts of the Union, and the consent of the New York legislature, the rule of Tammany must remain confined to such parts of the State of New York as the State shall permit. But let us approach the problem from another point of view. Great as is New York, let us imagine that Boston rivals her in the commerce of the world ; that every favoring breeze brings to Boston the largess of the whole globe ; that, despite all the Gotham efforts, Boston's growing com- mercial advantages directly affect New York, whose rent rolls steadily diminish. Imagine there arises a newspaper Cato, whose morning and evening editions print at their top, in blood-red 118 democracy's international lav/ letters, Delenda est Boston. The public mind becomes attuned to the ciy. In an unlucky moment a Bostonian in New York, whose un- happy pronunciation of the letter "A" reveals his origin, becomes involved in difficulties necessitat- ing a \dsit to the Tombs. Boston peremptorily demands his release. New York scornfully re- fuses, and New Yorkers are insulted by Boston's wrathful rejoinder. Here again honor and vital interests demand blood, and under the old logical rule the solemn arbitrament of war must deter- mine the issue. Alas ! once more the men of other places, heedless of the honor of the two cities and blind to all interests save their own, step forward arul forbid resort to any other instnimentality than the artificial one of courts, if a legal injury may be said to exist. Alas, again, the insult to the honor of the two cities does not constitute an injury of sufficient gravity to be considered by any national court. But if these suggestions seem the wild vagaries of imagination, let us take more concrete examples. The drainage of the city of Chicago pours itself out into the Illinois River, and diagonalh^ across the State the current flows to join the purer waters of the Mississippi. Soon the flood reaches St. Louis, and endangers the integrity of its water supply. Shall not every stalwart Missourian who SOME SUPPOSED JUST CAUSES OF WAR 119 feels his bosom beat with love for bis State fly to arms, cross the Mississippi, and relentlessly fall upon the luckless citizens of the State of Illinois'? Shall the health, the comfort, the prosperity of Missouri be ruthlessly attacked by a neighboring State and the injury not be wiped out in blood? Must the Missourian stand supinely by while the population of his State becomes decimated by disease set at work by the carelessness of people alien to his State government, and whose actions have conclusively shown their lack of courtesy and civilization? Are not such people worse even than peoples whose skins are black or perhaps yellow? Is it not the high mission of St. Louis to cany civilization even to the banks of the Sangamon? Is it not part of the Missourian 's share of the burden of humanity to teach the true gospel of the golden rule to the backward denizens of Pike, Cook, and Jo Daviess counties? Must not these questions be answered in the affirmative but for the fact that Missouri and Illinois recognize as a common superior an artificial entity called the United States, which forbids such war and rele- gates both parties to peaceful courts, where, with the assistance of bacteriologists, lawyers, and judges, the issues are fought out without the pomp and circumstance of war f Are we not indeed li\dng in a dull, uneventful age, and inflicting upon 120 DEMOCKACY's IXTERNATIOXAL LAW the young men of both States the canker of peace ? But once again the logic of war is denied and the manly virtues remain undeveloped. Yet another illustration. The State of Kansas contends that the waters descending from the mountains of Colorado should be allowed by Colorado's citizens to pursue their way, unvexed and undiminished, to render more fertile the plains of the Sunflower State. The vital interests of the States collide. Shall the interest of bleed- ing Kansas be allowed to suffer because of the self- ish and grasping policy of the men of Colorado? Invoking the soul of John Brown as it goes march- ing on, let the Kansans march upon the sons of the Centennial State and slaughter them until they learn how to live and let live. Alas! once more, war, which, like poverty, is justified because we have always had it and the contrary is against human nature, is suppressed; and the great sov- ereign States of Kansas and Colorado are forced to bow to the dictations of nine men in black robes, only one of whom, and he by chance, happens to be a citizen of either State. I have given you two imaginary and two actual illustrations of circumstances which, by all the books, would justify war. In two cases honor dictates, and in all four vital interests demand it. The only restraining thing is that the contending SOME SUPPOSED JUST CAUSES OF WAK 121 parties are, in each case, subject to the control of a judicial body. In vain could any of the States named declare their right to determine for them- selves what was needed to satisfy their own honor or to maintain their own true interests. Always their neighbors insist upon their superior right to preserve the peace of the Continent. But so little civilized are we internationally that books are written about the rules of war ; that the right of blockade is recognized between nations; that, because of brawls with which no outside party has any concern, the commerce of neutrals is interfered with, the property of their citizens often exposed to the ravages of war on land, while neutral governments, unlike the onlookers at a street fight, who content themselves with making a ring about the contestants, accept limitations upon their own conduct made by the fighters them- selves. Can we not learn that there is no more dig-nity, no more glorj^ about a national dispute, about a national conflict, than there is in a duel be- tween two neighbors over the proper placing of a line fence? And if the good of the community demands that the quarrels of neighbors shall be determined by a legal court, if the rivalries of cities and States must find in this country their settlement in dispassionate tribunals, why should there not 122 democracy's interis^ational law be, judicially at least, tlie United States of the world, witli a tribunal capable of passing upon all international questions without restrictions'? We may here pride ourselves on believing that we are going with the swing of international feel- ing; that with the spread of intelligence, with a greater recognition of the equality of human be- ings, which in the last analysis denies the right of one man to require another to sacrifice his life and property without just cause, duly ascertained by cold and competent tribunals, there must come a time when war will be looked upon as a crime. The stars in their courses fight for us. Let it not be said that I am inappreciative of the dignity of war and of the importance of the causes leading up to it. War has no dignity. It offers a tragedy and a farce. With the tragic element we are all too familiar. With the farce of it all we are less familiar, for it is one of the obvious things — so ob^dous and so accustomed that, like the movement of the earth around the sun, eons of time pass by without its realization. What can be more farcical than that human beings should be dressed up in gold lace and waving plumes to go forth to slay other human beings in waving plumes and gold lace? Why should bearskin shakos be used to add ferocitv to their ensemble? Why should the common people, whose interest in the SOME SUPPOSED JUST CAUSES OF WAK 123 matter is nil, make themselves food for powder, all for the benefit of the few whose tinsel decora- tions blind their own eyes and those of the be- holders f And why should parents who love their offspring- rash into opportunities of bequeathing to them legacies of national poverty and debt as the result of a display of passion on the part of the fathers f And when all this is the work of sen- tient human beings, may we not wonder over their effrontery in speaking of themselves as rea- soning creatures? Are nations so rushing into conflict wiser than the mad bull in the arena that with lowered head daghes upon the sword of the matador? May we not conceive of a real philosopher looking down with wondering and puzzled contempt and amazement at our bloody antics over baubles ? For as yet we are but children and have the ways of children. Between the childish disputes, ''It is," 'at isn't," or ''I want to swing," "No, I won't let you swing," and the average differences between nations leading to war, there is in essence no distinction, — nothing save the age and number of the disputants and the consequent variance in the objects which interest them. Relatively, the contest is unchanged, and equally it should be ad- justed without killing and without the slow sap- ping away of life through taxation. 124 democracy's international law But if you tell me that such doctrines as I have tried to set out are opposed to patriotism, let me say to you that patriotism is not a fixed but a growing term. When the first Englishmen planted themselves on the shores of Massachusetts Bay, their patriotism was bounded by the fringes of woods concealing Indian enemies. Later it meant a special sense of duty to those within the widen- ing boundaries of the province. Yet a few years, and with the birth of a new nation, all who lived within the bounds of the thirteen original States were recognized as their brothers. Then, by leaps and bounds, it came to pass that the teem- ing millions of human beings from the Atlantic to the Pacific represented the solidarity of the coun- try, and all w^ere recognized as brothers under a common flag, and between such brothers w^ar was a crime, and all troubles to be determined in a peaceful manner. But one step is left. We have to recognize the brotherhood of the human race and the infinite crime of bloody contests between members of a common family. AVhen the day of such recognition arrives we shall love our inmiediate neighbors no less, and for them reserve the special offices that our finite strength limits us to giving to the rela- tively few, while the narrower features of the patriotism of today will be swallowed up in a broad consideration for the rights of humanity, and all men will be brothers. ESSENTIALS OF PEACE AND WAR 125 CHAPTER XI ESSENTIALS OF PEACE AND WAR "From battle, murder, and sudden death, Good Lord deliver us." Thus saith the Litany. We forget that without our active assistance in the correction of evils which lead to battle, the pious ejaculation of the Litany becomes no more effect- ive than the turning prayer-wheels of Thibet. But we have done more than to pray nervelessly for peace. We have organized society upon society whose avowed purpose has been to pro- mote the cause of peace, and with them all we have paid little attention to the essentials of the thing we sought for. Thus it has been that all of our work, either in private association or represented by formal resolutions of the Massachusetts State Legislature, of Bar Associations, of the Congress of the United States, has amounted in practical result to little beyond the returns from our thoughtless repetitions of the Litany. No one has offered dissent to any of our resolu- tions or protested against the purpose of our societies. Even the most pronounced militarist will aver a love for peace and will declare that he is in favor of arming to the teeth to maintain peace and prevent war. In fact none but a degenerate 126 democracy's interistational law would glory in gas-eaten human bodies, in torn limbs, in drowning men and women, and in all the other varied forms of injury to persons and de- struction of life war offers us. With all our praise of peace and denunciation of war, we find Europe in ruins. Each international pross-road offers an opportunity for conflict. Meanwhile America punishes itself by expending 93 per cent, of its annual outgo for past and pros- pective destruction. We go on believing that a private killing is murder, but the taking of human life on the order of a group of men called a Con- gress, a Parliament, or a Cabinet becomes sanc- tified under the name of Patriotism. Despite the frills \\T.th which we have decorated international action, analysis shows that we have taken but trivial steps to delay physical fighting over tilings which nations ordinarily regard as material. Analogies are unsafe, and yet perhaps we may imagine one not without truth. Suppose that one hundred years ago legislatures and associations had commenced to tell the world that health was beautiful and disease painful and disagreeable. Suppose men had marshalled themselves under banners proclaiming to the breeze ''mens sana in corpore scmo." Suppose that our ancestors and ourselves after them had all united in declaring that health kept for a longer time the bloom of ESSENTIALS OF PEACE AND WAR 127 youth upon the cheek; increased individual com- fort; led to a higher morality; lengthened life — would not every saloon-keeper have agreed and every opium dealer have wished the apparent movement Godspeed even as now militarists cry aloud furiously for peace? Suppose that during all the time this was taking place our ancestors and ourselves resolutely refused to examine into the causes of disease; took no steps to clean up slums ; did not drain swamps or stamp out the mosquito; failed to fight darkness Avith light or point out the dangers of the use of opium or alcohol, — would human life have been lengthened or made more comfortable by virtue of all these fine resolutions I Has there not been a close analogy between the conduct of our leaders of thought in this country with relation to peace and the imaginary conduct which might have been in- dulged in during a like period by the advocates oT health? Solemn resolutions in favor of inter- national order parallel solemn resolutions in favor of health and material wellbeing. Eefusal to ex- amine into the causes of international disorder parallels refusal to seek out the causes of disease. The swamps, mosquitoes, and vice our scientists have sought to limit and destroy. Their like inter- nationally remain, so far as we are concerned, un- known, unrecognized, or at least untouched. 128 democracy's international law By the universal line of conduct in practice as- sumed, we and our ancestors have appeared to re- gard peace as something to be attained and assured by a kind of fiat. We have put it on the same plane with Direct Legislation, or Woman's Suffrage, or Proportional Representation or other schemes of administrative reform, overlooking the fact that it was vastly more subtle ; that it was a product and not self -existent ; that it could only be created and preserved by circumstances favorable to it. We have thought that we could sow broadcast the seeds of war and after the plants appeared, suc- cessfully graft upon them the olive branch of peace. As well might we hope to graft the fig upon the thistle. Sometimes in specific instances we have said that lust for territory or desire for access to the sea were causes for war, and unthinkingly have looked on when nations quarreled over the posses- sion of natural resources. We have never par- ticularlv analvzed these causes to find whether or not, granting present national and international conditions, there might have been some entirely understandable excuse for them. We have not con- cerned ourselves with their removal. If we had stopped to consider conditions in our own country as offering an international parallel or suggesting our duty toward our neighbor in ESSENTIALS OF PEACE AND WAR 129 the cause of peace, we might have pointed out an antidote for the bane of many wars. Does Ehode Island particularly concern herself over the fact that her territorial limits are restricted! Is there a citizen of the State who would be willing to lay down his life or ask his neighbors to lay down their lives to add one or one thousand miles to her territorial jurisdiction? Is there a citizen of Ver- mont who is distressed over the fact that Vermont has no immediate access within her o^vn jurisdic- tion to the Atlantic Ocean? AA^ould any denizen of New Hampshire be willing to fight, supposing it otherwise feasible, against citizens of Pennsyl- vania because of a desire to obtain for his State direct control over beds of coal and iron. And yet these several suggestions involve extension of ter- ritorial limits, access to the sea, possession of natural resources, which are made the frequent cause and excuse for international conflict. Any- one of them would be unthinkable within our nation, and, were justice to prevail between nations, would be equally unthinkable inter- nationally. This American peace is not due to the fact that we have a common executive, a Congress, and a Supreme Court, useful as all of these instru- mentalities mav be. It exists because anv citizen of the United States equally with any other citi- 130 democeacy's international law zeu lias a riglit in perfect freedom to pass State borders with all his family and property; to im- port and export from place to place within the lim- its of the United States any sort of property he pleases without hindrance from any State author- ity; to gain access to and from the seas without any local interference whatsoever.* It is quite beside the mark to say that national or international executives, councils, or assemblies with ample paraphernalia of courts, will insure peace. Nothing mil attain this end save justice and equality, not merely as between nations but also as between the individual mem- bers of nations in their intercourse with those wiio are citizens or subjects of another jurisdiction. "We have the proof of this in our OAvn experience. With as nearly perfect a system as exists in any couiitiy of executive, legislative and judicial au- thorities, when the essential nation-wide injustice of slavery existed, we forget all else and there oc- curred the war between the States. Likewise we may expect wars to continue despite all leagues, associations, Hague Courts, international police, or whatever agency may be imagined, unless we study resolutely the secrets of international justice * It is not necessary to discuss such minor limitations of inter- course as affect health or prevent internal disorder. ESSENTIALS OF PEACE AND WAR 131 and cure injustice. This we have scarcely com- menced to dOv If we would maintain peace, therefore, we must commence by following the fashion of the health society which would very speedily have abandoned the denunciation of yellow fever, tuberculosis, and smallpox for the isolation of the germs. We have so far remained in such complete ignor- ance of the subject that we have not even discov- ered where peace ends and war begins. We treat war much, in International Law, as if it were a bolt out of the blue; as though it were something not within the control of men, but which comes upon nations as a mysterious epidemic sweeping all before it. We look at its ripened fruit of physical combat and we forget that this product does not exist save f^.s the result of a long- course of development. We carefully sow its seeds in injustices toward and special advantages taken of our neighbors. We fertilize and w^ater with our suspicions, jealousies, avarices and desire to submit our neighbors to our power, and then, allowing the plant to develop, we suddenly dis- cover we have the flower and fruit. No one would so treat the upas tree, if it possessed the qualities travelers have given it, but unintelligently we cul- tivate something infinitely more deadly. We bet- 132 democracy's international law ter the ancient saying "In time of peace prepare for war," for in this period we energetically gen- erate war itself. Let us illustrate by a single example the point in mind. We say conunonly and roughly that war opened between Oermany and France in August, 1914, this because the official killings date from such period. Without undertaking to trace the struggle to its more obscure beginnings, with greater show of correctness, it could be said that the war began in 1870 with the taking of Alsace- Lorraine by Germany and that the development of the plant to its greatest perfection had covered a period of 44 years before the perfect fruit — physi- cal war — was gathered. While the taking of Alsace-Lorraine was in it- self a political crime involving also undoubtedly much personal discomfort or injury, if individual suffering and political control alone had been in- volved the consequences might not have been serious. The provinces taken contained much mineral wealth, useful theretofore to France, but there- after devoted to the special benefit of Germany. Tlie latter pursued with narrow selfishness the plan common to nations of treating the wealth un- der their immediate political control as an instru- ESSENTIALS OF PEACE AND WAR 133 ment to be employed to their exclusive benefit or rather in a larger degree to the benefit of a small circle of their more privileged classes. Taxes and tariffs were adjusted to this end. This wealth which, if nature teaches us anything we may be- lieve as intended for the benefit of all humanity, was thus appropriated by a few- and particularly employed for their advantage within the national limits. This course, so natural as nations are now edu- cated, involved tremendous and disastrous conse- quences not alone to Germany but as w^e have seen to the entire world. Knowledge that it would be taken precluded friendship between France and Germany. From that time on Germany wdth guilty conscience, feeling the necessity of rendering her- self capable more completely of overthrowing the country she had immediately wronged, prepared for the certain physical conflict and France fol- low-ed in her train. Each advancement on the part of one country in the art of civilized slaughter was met by further progress on the part of the other. At every point, military, industrial, political, each nation, without tracing its steps to their ultimate conclusion, injurious to itself, sought to hinder and prevent the normal development and expansion of the other. German industrial and political rela- tions with Austria became closer. France created 134 democracy's international law more intimate associations with Russia and Eng- land. If France desired preponderating influence in Morocco, a German man-of-war offered an im- plied threat, to which threat France, England and other countries responded essentially in kind, if their conduct were less blunt. If Germany desired larger industrial and economic development in Turkey and the valleys of Mesopotamia, allies of France stood in her way. The French peasantry were ready to supply their hard-panied francs to the development of military power in Russia, and Germany answered by levies on capital to meet the situation. France riposted "with a three years' service law. In every moral (or shall we say immoral!) sense were they not at war even though no blow was struck? If, therefore, we are to address ourselves to the great problems of war and peace, can we do so without a revision of our definitions of these two opposing international conditions? Imagine that during all these years the artificial barriers between France and Germany had been non-existent; that Germany, laying aside all chauvinistic patriotism, had granted France free access to all German markets and materials, and that Germany had enjoyed a like privilege in France; that England and Germany on equal terms with every other nation and at their own ESSENTIALS OF PEACE AND WAR 135 option could have entered or refrained from enter- ing upon trade or commercial exploitation in Morocco, Mesopotamia, and elsewhere; that the various countries had not arrayed their manu- facturers and merchants against those of every other country and that merchants and manu- facturers had possessed forethought enough not to have asked governmental aid, would we not, despite a political change affecting Alsace-Lor- raine, have escaped 44 years of incipient warfare and an industrial and political warfare to extend into a future far beyond our ken? Would not the United States have been saved the lives of 100,000 of its most promising young men, avoided thirty billions of dollars of indebtedness and the expendi- ture of untold billions hereafter for excessive armies and navies'? If the giving up of special national monopolies ; if refraining from tariff and other taxes not cap- able of ethical justification ; if the abandonment of selfish advantages for the nationals of individual nations ; if the practice of justice would have meant, as in the long run it would not, sacrifices by individuals among the several nations, had it not been better to have stood such sacrifices than to have risked the civilization of the world on the battle-field? We have given heed to the demands of many 136 democracy's international law small nations for independent government. We have done so without stopping to consider whether or not their creation as separate entities was call- ing into existence new trade barriers ; new obsta- cles to natural growth; multiplied fonns of national selfishness, and therefore offering new causes for war. We have been as blind as the medicine men of a more savage age who sought to cure disease when it had broken out virulently by their incantations and their dances, but who were ignorant of the fact that there had been perhaps long antecedent condi- tions of ill health, which they had passed un- observed. They saw only the final outcome, and knew nothing and never sought to inquire con- cerning the obscure origins of disease. Our point of approach must now be very differ- ent and much more radical than has been repre- sented by all of oui" resolutions in favor of peace. It must address itself resolutely and persistently to the study of the causes of disease and not to declamation against its existence or attempts to prune a poisonous tree. Chattel slavery was not abolished by regulating the quarters to be occupied by the slaves or by al- lowing a slave to testify in court. The axe had to be laid as it were to the root of the institution. And in like manner our thought must go unflinch- ESSENTIALS OE PEACE AND WAR 137 ingly to removing the causes of war and a re- definition of war and peace on the lines herein indicated will materially assist us in our work. We denounce the immoralities of war and feel ourselves better citizens by so doing. We might as well denounce boiling water for scalding. We do not denounce the various immoralities inter- nationally of which we are guilty in time of peace. These when practiced for sufficiently long time furnish the explosives creating what we call war. War like business depressions moves in cycles. In business when our over-reaching practices have continued long enough and the strain touches the breaking point, we become engulfed in a panic or depression. Nothing in nature compels the cycloidal movement in business and likewise noth- ing in nature compels a war cycle. The origin of each is found in defects of human conduct, the germs of which are perfectly capable of being isolated and treated. 138 democracy's international law CHAPTER XII* SOME TENDENCIES PRESSING TOWARD JUSTICE AND PEACE "The object of International Law," says the pacifist, **is to insure peace as the highest good." "War is inevitaWe, " says the militarist, "because with its foundations deep in human nature it may not be avoided. " In a practical way both positions involve an element of error, at least at the present time. Law has as its truly beneficent purpose not peace but justice. Peace is a by-product of great value, certainly, but the fact may not be ignored that justice has ever seemed to men more import- ant than peace, and that without it peace can have no firm foundation. Turning to the attitude of the militarist, we may question if there be an immutable quality in human nature making mankind in masses either peaceful or warlike, merciful or cruel. We may doubt if it is necessary to change human nature to destroy the trade of the warrior. We do know that one of the fairly fixed qualities of human nature is its ability to change its manifestations according * The larger portion of this chapter was published in 1911 for the American Association for International Conciliation, by whose courtesy it is reproduced here. TENDENCIES TOWARD PEACE AND JUSTICE 139 to its surroundings. We have in us a good deal of the chameleon. If men are taught from youth up that war of itself and as an end in itself is righteous and commendable, they will be milita- ristic, and it will be said that their human nature is warlike. If the fellows of the same man are brought up in pacific surroundings the reverse will be observed. To secure this transformation does not require the processes of the ages chang- ing something inherent and fundamental. The in- clination of men to fight can be materially changed — increased or diminished — within a generation or two. We may believe therefore that viewed as a practical proposition, the basis of the reasoning of the militarist is not sound. If we discuss war as an end in itself, are there elements tending so to change our surroundings — our relations with our fellows — as to render war less excusable or desirable! Despite the will to power; despite our exaggerated and overbearing- patriotism, in the like of which other countries than ourselves are also running riot for the mo- ment, there exist influences tending in this direc- tion and which in the long run must play an im- portant part in enlightening what goes under the name of International Law, and so alter our absurd and bloody practices. These will make us at the 140 democracy's international law same time advocates of justice, wliicb will come with its handmaid — peace. At the entrance to the bridge leading from the little German town of Klein Basle over the Ehine to the Swiss city of Basle, there is, or was, until recentlj", a bronze statue, so grotesquely arranged that upon the stroke of the hour, it made a con- temptuous grimace toward the larger place, thus expressing the distrust and hostility felt by the inhabitants of Klein Basle toward those of Basle. The illustration is typical of the feeling in the beginning of the people of different neighborhoods toward each other. Those separated by a river were enemies. The people beyond the mountains were debased and perverted characters. The vil- lagers across the lake had no saving virtues. Those over the desert or the other side of arms of the sea were scarcely of the same race. If one traveled a few miles he was among i)agans and heathen. If he journeyed among men of a differ- ent color he became a foreign de\dl. If men were powerful enough, they enslaved first those of their own race but of another neighborhood, and with rising civilization those who were merely of a different color. In either instance, they degraded their fellows and denied to them human or divine attributes. TENDENCIES TOWARD PEACE AND JUSTICE 141 But despite all our narrowness and littleness, there came to grow a sense of truth, opposing all our prejudices which themselves arose out of our predilection for the things to which we were accus- tomed. We appreciated, dimly and imperfectly at first, then more clearly, that after all, in the mea- suring of human qualities, notwithstanding our natural preferences for our own, the character- istics which distinguished our neighborhood or nation or people might be balanced by those which a different environment or experience developed in others. The education or qualities which under certain conditions have brought to us success in life may, if we be quickly transported, count for little or nothing under other suns. The Englishman, sud- denly finding himself in a desert, may perish for the want of special training, while those whom he