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Democracy's
International Law

— BY—

Jackson H. Ralston

American Agent, Pious Fund Case, at the
Hague, and Umpire Italian-Venezuelan
Mixed Claims Commission ; Author Inter-
national Arbitral Law and Procedure;
Editor Venezuelan Arbitrations of 1903,
etc.

JOHN BYRNE & CO.

Washington, D. C.

19 2 2

Copyright, 19'£2

By JACKSON H. BALSTON

All rights reserved.

The. Advertiser, Annapolis, Maryland

I To

^ My Wife

SARA B. RANKIN RALSTON

z Whose sympathies

have accompanied
^ the preparation of this ivo\rJc.

^
^

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2795SS

31 (oO

TABLE OF CONTENTS

Chapter I

How Eiiiidameiital Intenjatioiial Law is to

be Discovered 1

Chaptek II
Laws of War 22

Chaptek III
Systematizing War 29

Chaptek 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 Re-
served from Arbitration! 102

Chaptf.k X
Some Supposed Just Causes of AVar 113

Chapter XI
Essentials of Peace and War 125

Chapter XII

Some Tendencies Pressing Toward Justice

and Peace 1 38

Chapte*: 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 world.

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 which the world's puzzle must be solved,
is the purpose of this little book. It can not more

than suggest a line of work for the future. Some
sucJ] scheme of endeavor must be followed if we
would apprehend the noblest branch of legal
science yet to be examined critically by the human
intellect.

Herein it is also souglit 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 "Swiftiy 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.
Washington, 1). C,

June, 1922.

Democracy'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 whieli 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.

2 democeacy's international law

while failing to carry us far on the road to justice
in iuteriiational 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 natiira]
condition as between nations, and that its laws
are, or by right may be, laid down l)y 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 ti'ifling diminution
in its recurrence.

If the internationalists had taken tlie 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 i)h.ysicians have devoted to the dis-
covery of the yellow fever or typhoid germ, and
that this is one of the proper functions of the In

DISCOVEEING INTEKNATIONAL LAW O

ternatioiial 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

4 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 incorporated 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 0

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 rights would have bec-n
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 liim.

At the time of the l^attle of Agincourt. wlien 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 i3resent 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 in^ternational law

In the time 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 public 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 that can be said is that men at war
have varied their actions from century to century,
and their actions as so varied have been in souie
degree usages which one might expect to encoun-
ter in the progress of the disease called war.

Consider what law, measured by 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 invariability from century to century.
"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 tlie astronomer who has established be-

DISCOVERING INTERNATIONAL LAW /

fore he has ocuhuly 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 ditferences 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 alulity, 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 po^^terlty,
do," etc. Turning to International Law, we may
believe that its purpose is to attain as between
the States of the world what will closely core-
spond to that condition sought to be established
nationally by the Constitution of the United

DISCOVERING INTERNATIONAL LAW 9

States. If International Law departs from this
purpose, it violates the intent of its existence.

In our present study we shall be assisted in the
beginning by inquiring as to what law is and some-
what in detail as to its divisions and purposes.

It is a trite definition of law, justified by the ob-
s-ervations of Blackstone, though not completely
true, that it is a rule of action prescribed by a
superior and which the inferior is bound to obey,
commanding what is right and prohibiting what is
wrong. But if we go further, sundry distinctions
are to be made. There is a great mass of what
we call law which, in the profounder sense of the
term is not law at all, but merely accepted rules
of convenience. In England vehicles approaching
from opposite directions, pass each other to the
left. In the United States they pass to the rigbt
(This is not to be called in any deep sense a rule
of law, but is more allied to what in the case of a
corporation, may be termed "a by-law.") In
turning over the pages of our statute books we find
certainly four-fifths of all the laws vhich are
passed are rules of convenience. They do not
command what is right and prohibit what is
wrong. They lay down modes of action for indif-
ferent things; things which, without interference
vritli human rights, may be determined in any con-
venient way. This, for example is the ease with

10 democracy's international law

laws affecting descents, administration of estates,
execution of wills, formation of corporations,
forms and titles and powers of particular courts
and multitudinous ordinances which do not differ
from them, in essential nature, in the respect of
which we are now speaking.

Then we have a large body of statutes giving to
us what is called adjective law, also rules of action
based on no absolute theory- of right, although
conducive to the general ends of order. These
determine, by way of illustration, the manner in
which adniiinstrators shall be appointed and qual-
ify; the methods by which they shall be held to
accountability; how and where suits shall be
brought and what shall be the forms of pleadings ;
how the judgments of courts shall be enforced, or
a})peals taken to higher courts, etc. These ordi-
nances in turn do not command what is right or
prohibit what is wrong in any moral sense, but
further the general necessities of society.

There remains yet to be considered what we may
regard as real law, dealing with the absolute
rights of man, as expressed in the Declaration of
Independence, to life, liberty, and the pursuit of
happiness. The experience of mankind has sliown
that the individual maist be regarded as possessed
oi certain primary rights. We have been a long
time in discovering them, but we have largely sue-

DISCOVERING INTERNATIONAL LAW 11

ceeded, and tliey have been made manifest by the
fact that when they have been denied, such denial
has meant social disorder or even revolution. This
fact betniys the existence of real law as distin-
guished from ordinary rules of action and adjec-
tive law of which we have spoken.

We must enlarge this branch of the discussion
by reference to crimes against order. The experi-
ence of mankind has demonstrated that following
the commission of certain acts confusion arises in
society, and there is danger of its growth save in
some way it may be checked. From this fact it
has been determined that these things have vio-
lated a social law originally unexpressed. Thus
we have found that the man who committed mur-
der has himself infringed upon the orderly con-
duct of society hj his direct act and has created
vendettas and feuds. We have further inferred
that the man who so far lost control of himself as
to murder once, was likely if unrestrained to coni-
mit a similar offense on another occasion. Con-
sequently we have found as a fact that the com-
mission of murder is contrary to natural law.
Conversely, if murder had brought about no social
effects of a disagreeable character we would have
been justified in believing that it was not forbid-
den by any natural law of society and that it
should not be forbidden by any community made

12 democracy's inteenational law

law. Precisely like the })liyt;ieiau we trace back
the disease to the violation of the laws of nature,
although on onr part the operation has been un-
conscious. In the domain of morals our conception
of this natural law is called conscience. In the do-
main of legislation we have sought to enforce such
law by the threat of punishment. The essential
tiling is that when men assume a certain social re-
lation the infringement of these laws creates dis-
order which, being recognized, is denounced by the
formal law of the community.

In the manner just illustrated, we shall discover
that all the other laws forl)idding and punishing
crime have arisen under similar conditions except
such as address themselves merely to what con-
cerns the minor interests of the community, in-
volving no moral element, and define mala
prohihita.

Having fixed these distinctions, turn to the lield
of International Law. We discover that ds be-
tween States til ere have l:)een established a great
variet.v of conventions. Nations agree among
themselves on the fomiation of rules of naviga-
tion, treaties of naturaiization, recognition of
trademarks and of copyrights, extradition, postal
conventions, and an immense number of minor
conventions whicli involve no abstract right as a
rule, but are the arrangement of relations upon
matters usually morally indifferent.

DISCOVERING INTERNATIONAL LAW 13

In each instance there is created a modu^
Vivendi from which no one nation has any suffi-
cient reason to depart. The rule is universally
observed just as a like rule is followed, within the
State, and may lead to no material international
differences. Aside from convention, there also
grows up what may be called the minor common
law of nations regulating their intercourse of
courtesy. All of these matters are treated under
the head of International Law and have their im-
portance as the usages of polite international so-
ciety.. In any profound sense they do not con-
stitute law. They are simply usages or customs
sometimes put in written form as being most con-
venient for reference, and when so placed least of-
fensive to national susceptibilities. They should
be clearly disting-uished from fundamental law.

Like the rules within the state, we have a cer-
tain small body of International Adjective Law.
Its most important expression is found in the
Hague Treaties of Arbitration. It is further,
however, to be discovered in connection with
various of the conventions entered into between
nations as relating to the manner of their enforce-
ment. International Tribunals have to some de-
gree developed such procedural law.

No reference is made to the so-called laws of
war as part of International Law. They need not

14 democracy's international law

be treated as if they were integral law, in part for
reasons already indicated. They are not certain
as we have seen as to either time or place. They
are not laid down by any superior and find none
of their sanctions in the laws of nature or in the
enforceable conclusions of international tribunals.
They are not observed in practice except so far
as the combatants choose to recognize them.
Every attempt made to lay them down in an au-
thoritative way has been as unavailing as would
be the dictum of a physician to a man in fever
that his temperature should not rise above a given
figure. They much resemble an admonition to a
man subject to paroxyms of insanity that when
he is so attacked he must be sure not to kill any-
body.

Having discovered substantial law within tiie
State by tracing disorders back to the law the vio-
lation of which has caused the disorder, may we
adopt the same process to discover the real prin-
ciples of International Law and by endeavoring
to secure their observance seek to remove dis-
orders between nations? This process has re-
ceived little attention from students of Interna-
tional Law, and yet slight consideration will siiow
that it is the method to be adopted if we are to ol)-
tain material results.

Why have we been so blind? It must be that
when we look upon a State it seems so large, so

DISCOVERING INTERNATIONAL LAW 15

peculiar, so absolutely in a class by itself, that we
forget that it is but a combination of individuals
and that pari passu the problem before us is not
far different from what it was when we deter-
mined that the individual should enjoy freely and
without molestation, hut under conditions of
order, his right to life, liberty, and pursuit of hap-
piness. We have ignored the fact that the State
is but the individual grown large, and we have
treated it as if we verily believed it was immune
from the operation of the protective laws of lesser
forms of human society. A mere glance at the
teachings of history should have shown us our
error and have convinced us that there were un-
derlying princi])les as strongly affecting States as
affecting individuals, even though never written
down in lawbooks and never enforced by fixed
penalties.

Germany took from France the major part of
Alsace-Lorraine. She deprived France of polit-
ical control of the parts taken and gained for her-
self, or rather for some of her subjects, the ad-
vantages incident to the control of certain great
natural resources. The privileges which in these
respects France and Frenchmen had theretofore
enjoyed were lost. The International Law as
written in the books, which says that the victori-
ous nation has a right to inflict its own penalties

16 democracy's international law

upon the loser, must justify the action of Ger-
many. But there is a higher unrecognized Law of
Nations, as there was a higher law affecting slav-
ery, wliieh says that the thief of power and pos-
session shall be punished. Under this law, of
which the books of learned authors take no cog-
nizance, Germany, to protect her misdeeds, was.
compelled to embark upon a career of intensified
militarism. In its ultimate results the economy of
the world was deranged. Her forcible theft was
one of the great contributing causes bringing
about the late war resulting in Germany's over-
throw.

Let us take another German instance illustrat-
ing the existence of fundamental International
Law. Germany invaded Belgium in order to
strike at France. In so doing, she broke an an-
cient treaty. More than this, she undertook to
impose her will upon a nationality not under her
jurisdiction, and, upon resistence, enforced it by
arms. That this experiment brought about such
a reaction as was to be expected, needs no argu-
ment. Had it been api)arently sucessful and en-
a])led her to subdue Prance, we may believe that
the consequences would nevertheless have been
serious. No nation of the world would have
trusted Germany. Other nations would have
armed to the teeth against her, and her losses,

DISCOVERING INTERNATIONAL. LAW 17

though less immediately obvious, would have been
no less certain.

We may infer from this the existence of an In-
ternational Law which prohibits the invasion for
selfish reasons of one country by another, even
though we find nothing written upon the subject.
Nevertheless action and reaction are equal, and
the results are inescapable.

Great Britain, in her manner of treatment of
her American Colonies in the 18th Century, im-
posed her will wrongfully in many different ways.
The reply to her action was the American Revolu-
tion, and she lost a Continent. Rendered wiser by
experience and knowledge, she since that time has
largely avoided her former errors. Again we are
taught real International Law.

Turn to another instance where the story has
only in part been told, and the developments oi
which lie largely in the future. Various nations
have taken advantage of the military helplessness
of China and have undertaken to seize for them-
selves ports and for their subjects concessions.
They have infringed upon her national indepen-
dence. They have apportioned to themselves
spheres of influence. They have established con-
sortiums to regularize enforced control over rail-
ways and other profitable undertakings. Have
these repeated violations of right brought with

18 democracy's international law

them a sense of security or even financial benefit
to the nations concerned'? The answer clearly
must be ''no." The further the nations have
penetrated into China the larger have grown their
military and naval expenditures; their jealousies
of each other; their fears of the result to them-
selves if ever the Chinese giant wakes up. Even
today the balance-sheet by any proper reckoning
would show a physical, and, as it undoubtedly does,
show a moral loss. He who would read the future
can see that these losses are manifestly capable of
tremendous expansion.

The several nations in China have thus taken
steps immoral (unlawful) in themselves and in-
volving punishment. Can we not therefore infer
that the nations have violated a natural Interna-
tional Law of Nations, the punishment for which
violation is absolutely certain I

One is reminded of the story of a consultation
between leading Chinese disturbed over the situa-
tion when the Manclius seized the government ol
China. When they were gathered together one
of the most respected of them was called upon
for his opinion. He said in substance : "We need
not disturb ourselves. The Manchus will be swal-
lowed up b}^ the great body of Chinese; their
power will ebb away from them, and in 200 years
we will not know that they ever existed to trouble

DISCOVERING INTERISTATIOXAL LAW 19

US." These were the words of a philosopher who
recognized that time is not alone of today, but be-
longs to the future as well. We shall not have to
wait, and we are not waiting 200 years for the
evolution of events to bring about the reward for
ills inflicted upon China. AYe live in a world mov-
ing more rapidly. The essential point is that the
punishment fits the crime, and the punishment
connotes the crime.

We will not ignore the fact that nations have
been brought into their present condition of rela-
tive solidarity through innumerable wars, crimes,
and injustices; but this fact will not answer our
main proposition. Had mankind been less stupid;
had it delivered itself over to thought rather than
to action; to reason rather than to blows, the ad-
vancement might have been many times more
rapid and the continual setbacks caused by re-
venge for wrong, would have been avoided. Only
now we have an illustration of this very point.
Five months of tactful discussion have done more
to insure peace and real amity between the Eng-
lish and Irish than has been accomplished by five
centuries of wrong and war.

We must not forget that the essential evils
of a given line of conduct will not stand out
with ec[ual prominence in all stages of hum.an de-
velopment. As the scale of civilization rises; as

20 democracy's international law

social development takes place, it is fouud that
things which were socially wrong when the units
were small, rise into new prominence and impress
the onlooker as of old the error would not. Mur-
der and robbery are events of less significance, we
can thus understand, in a rude society than in one
of fuller development. To use an illustration from
the economic world, we may take the rule finding
frequent illustration in our State Constitutions of
100 or more years ago, requiring all forms of
property, real or personal, to be subjected to the
same tax for the benefit of the state. In a condi-
tion of even distribution of wealth where, roughly
speaking, each citizen possessed relatively the
same proportion of real and personal propert}'
and absolutely no great wealth at all, the evils of
this economic blunder were not manifested, but
later they were easily perceived. We may prop-
erly argue that the same conditions apply to na-
tions; that in their earlier and ruder develop-
ment, (and after all States in the modern sense of
the term are not historically old,) the revulsions
caused by violations of natural law appropriate to
States were not pronounced. Of late, however,
with the rapid development of States as the repre-
sentatives of worldwide civilized society, and
with their closer association resultant upon grow-
ing facility of communication, and the superior

DISCOVERING INTERNATIONAL LAW 21

intelligence of their citizens, the evils which were
localized or small in the beginning have gained a
widespread character and carry with them friglit-
ful results.

We have been multiplying experiences of late,
piling one upon another, until standing at tlieir
top we are enabled to discern much more than the
beginnings of a real International Law. If man-
kind had reached a stage of theoretical perfection
of apprehension, its appreciation of the laws of in-
ternational society and of the certainty of auto-
matic punishment for their violation would be suf-
ficient. No formal laws would be necessary. But
such a stage has not been reached. Nations need
the admonition wliich will be expressed in formal
International Law when it shall come to be writ-
ten. For the individual we find that, largely be-
cause of his deficiency in imagination, punishment
is necessary, and also that prevention has its
proper field. In the Law of Nations we shall like-
wise have the three stages, admonition, preven-
tion, and punishment. Usually admonition when
once written into law will be sufficient. When it
fails prevention in various forms will bring re-
lief, and immediate punishment will often carry
more conviction than the slower process of natural
law.

22 democracy's inteenational law

CHAPTER II

LAWS OF WAR

In cliemistry from time to time we find two vast-
ly different substances which, on analysis, mnst
be described by the same formula. Nevertheless
there exists between them subtle but substantial
differences defying analysis. Were we to give them
the same name because of apparent chemical iden-
tity we would be involved in endless confusion and
Jed into impossible situations.

This confusion, avoided by the chemist, exists
in the realm of international matters. We speak
of international jurisprudence as being divided
into the laws of war and the laws of peace. We
are deceived by the fact that in each instance
usage lies in the background. We find many prop-
ositions in both illustrated by treaties, and in cer-
tain phases, relatively minor as to war, we dis-
cover that resort is had to courts of restricted
jurisdiction which profess to lay down rules of
action. Because of these apparent unities we de-
ceive ourselves and use the same word to repre-
sent ideas entirely in dissonance. We discover
atomic units whose similarities deceive us but
by which in like cases the chemist refuses to be de-
ceived, and we worship names bestowed because of
apparent likeness. The life of the spirit is ig-

LAWS OF WAR 23

nored. It is mucli as if because of resemblances
we were to insist that the Cardiff giant and the
Frankenstein monster were men.

Law, writers tell us, is a rule of action laid
down by a superior and which the inferior is
bound to obey. Sometimes we are told that it
commands what is right and prohibits what is
wrong. There are legalists who transpose this to
mean that what it commands is right and what it
prohibits is wrong. At least, law is supposed to
be based on the morally right and to be bounded
by reason. Furthermore, it is presumed to be cer-
tain— not to be set aside or varied by the whims
of the individual without regard to the eif ect of his
action upon others. Again, it is capable of en-
forcement. (Of course, we are dealing broadly
with substantive law in its important aspects, and
only touching in a small way upon legal rules of
convenience or of procedure, which are beside the
present argument.) In a sense, the vast body of
law may be said to grow out of usage and custom ;
but all customs are not law. The custom of slay-
ing and eating enemies taken in war may have
been very general for thousands of years, but
never rose to the dignity of law, however tooth-
some, satisfying, and economical the practice may
have been. The custom of the victor in war to
take from the vanquished life, liberty, and terri-

24 democracy's international law

tory, or to enslave liim by debt, is nothing but a
display of brute force, and not law and not sanc-
tioned by law.

We may believe that in their peaceful relations
there is a law between nations capable of natural
and righteous development. It is based upon rea-
son and humanity; it has a backing of right; it
recognizes that intercourse between nations
should approximate such as exists between gen-
tlemen. When it is fully developed in all its
phases, it will prohibit one nation from taking ad-
vantage of another simply because it has the
power to do so. It will recognize the indecency
of a nation trying to elevate its nationals at the
expense of the wellbeing of the citizens of other
nations. Its ultimate end will be the application
of as severe and perfect a justice between nations
as our defective humanity will permit to exist be-
tween individuals. It will be the outgrowth of
custom, in so far as custom is based upon ethical
principle, and will find expression in treaties, the
studies of writers of eminence and the utterances
of jurists authoritatively placed.

Our national law concerns itself with the pro-
motion of justice between man and man within the
State. The unit of International Law will be a
nation and not an individual, and its purposes will
be to preserve justice between nations. This, it

LAWS OF WAR 25

will finally discover, can best be accomplislied by
following the liigliest ethics of which we will be
able to conceive. Such will be the International
Law of the future, but it will be a law absolutely
and entirely based upon justice. It will under-
stand that ideal peace excludes international
economic conflicts and is not limited to the rude
clash of physical arms.

With this ideal of law we have confused what we
wrongly call the laws of war. These so-called
laws offer no moral considerations whatever.
They rest necessarily upon destroying human
lives in such manner as will entail the greatest ad-
vantage and the least comeback to the destroyers.
For the latter reason particularly prisoners are
not ordinarily killed. The retaliation might be
unduly severe. The prime duty of a nation in the
time of war is, we are told, to render the oppos-
ing nation helpless and force it to bow to superior
strength. Any act to this end is moral and justifi-
able, as is thought by the perpetrators.

Advancement in developing the supposed laws
of war is curious. We no longer torture a captive
and eat him, food being more abundant. We burn
him alive by flame-throwers or consume his flesh
by gas. We argue among ourselves as to the com-
parative humanity of tearing a man to pieces by
shrapnel or suffocating him. We are shocked by

26 democracy's international law

the conduct of the Indian who with a blow-gun
propels a poisoned arrow toward his enemy, and
we do not condemn the firing of shell which in ex-
ploding scatter about poisonous and destructive
vapors. We even make in Hague Conventions and
otherwise solemn resolutions as to what methods
shall be followed and then do as we please, be-
cause our resolutions have no basis in reason ; do
not advance the cause of humanity; are incapable
of enforcement, and present nothing of the spirit
of law, although we give them the high-sounding
title, "laivs of ivar."

We have deceived ourselves by the use of an in-
appropriate word. Our analysis has shown super-
ficial, and even structural, resemblances between
the laws of peace and the usages and customs of
war, and with a complete lack of discrimination
the subtler things of the spirit have eluded us.

Time and again we have been told that Interna-
tional Law has been broken during the recent war
until the very name is a mockery. This is true
only in the same sense that the word as applied to
the customs of war was a mockery before the
second of August, 1914. The hollowness of these
customs as furnishing law, in any sense of the
word, has been exposed by recent happenings, if
we do but consider the matter with ordinary care.

Heavy tomes have been written about violations

LAWS OF WAR 27

of International Law in the late war. Cities have
been bombarded without notice ; hostages exacted
and slain; peaceful merchantmen sunk without
warning, and a vast category of events occurred,
forbidden according to supposed authorities and
against the resolutions (improperly dignified as
conventions) of Hagaie Conferences ; Allies or Cen-
tral Powers have been reproached, though they
have but simply followed the ancient truth that
men frantically mad have no conscience. We have
forgotten that as long as we admit the propriety
of outbursts of war we cannot place limits upon
its manifestations.

And yet, to illustrate, real principles of Inter-
national Law were violated when Germany in-
vaded Belgium to attack France. It was as if two
neighbors, separated by the land of a third, had
gotten into a quarrel, and one had torn down the
intervening fence and destroyed the property of
the third to attack his enemy in the rear. Still we
may not denounce this act too severely. Germany
was doing what she thought necessary for her
success, treaty or no treaty. She was strictly fol-
lowing the teachings of the great god Mars, and
doing in a new way what in principle war for cen-
turies has permitted. As a combatant she was
laying dovm. her own rules of conduct toward a
neutral.

28 democeacy's international, law

The invasion of Belgium was a little more or a
little less of an infraction of the rights of an in-
nocent nation than is a blockade. The latter pro-
hibits the neutral who is not concerned in the
qnarrel from trading with the blockaded ports.
The will of the country which has kept its head is
subjected to the will of the mad nation. The es-
sential wrong of the act of Germany in entering
Belgium was not that she broke her undertaking
to observe the neuti-ality of Belgium, but that she
entered Belgium at all, the entry without leave be-
ing a violation of Belgium's right to control her
own life.

Once we admit the rightfulness of war and the
power of combatants to lay down their own rules
of action to control neutrals, we cut from under us
any ground of complaint of casual invasions of the
territory of neutrals, such invasions being merely
a particular form of disregard for the rights of
others. We should not complain of the foTna
of the act, but of the fundamental wrongful

conception.

This review may in some degree, let us hope,

serve to call attention to the fact that the so-called
laws of war are not laws; that they should not be
so treated, and that if we would be on the side of
the future we must recognize the customs of war
as being violative, in practically all of their forms,
of national and individual right, and therefore be-
yond the pale of legality.

SYSTEMATIZING WAR 29

CHAPTER III

SYSTEMATIZING WAR

"Of law there cau be no less acknowledged than that her
«eat is the bosom of God, her voice the harmony of the world;
all things iu heaven and earth do her homage, the very least as
feeling her care and the greatest as not exempted from her
power; both angels and m:^-i and creatures of what condition so-
-ever, though each in different sort and manner, yet all with uni-
form consent, admiring her as the mother of their peace and
joy. ' '

Accepting the spirit of these lines, written by
Bishop Hooker in his Ecclesiastical Polity sonic
three centuries ago, we may believe that when
men first discussed the "laws of war" Mars
chuckled, and since that time high Olympus has
resounded with his guffaws. Laws of war, what
are they? What are the laws of arson? The laws
of mayhem? The laws of murder? Can there be
laws of lawlessness? If so, where do we find their
sanction? Who created them? Who will enforce
them? Are their roots found deep in moral prin-
ciple! Are they the result of natural perception
and logical development? AVho welcomed them
as "the mother of their peace and joy?"

When we accept these laws we bow to the rule
of orderly disorder, moral immorality, justly and
equitably planned disregard of human right to
life, liberty, and the pursuit of happiness.

After all, these laws strangely mystify us. We

30 democracy's INTERNATIOiSTAL 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
may 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 WAR 31

against tlieni. We have so-called laws of tliem.
When 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 iDeaceful rela-
tions, so legitimate is war. W^e never proscribe
it, limit it, pnnish 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 migiit 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 they 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 Robin
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 weak

Our laws of war have utterly failed because
they have started from the premise above indi-
cated, that war was natural, inevitable, even
laudable and righteous, 'We can never meet the
difficulty until we approach the problem from an

SYSTEMATIZING WAK 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 difference whether the laws of
burglary are framed by burglars, even by those
who, recog-nizing 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 Hagnie Conferences imder-
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. Ai^proaching

34 DEMOCKACY 'S INTERNATIONAL Lu\W

these topics from a saner point of view, we would
agree that a nation which, by planting 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 to 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 x^unishment.

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.

AVe 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 we make ourselves accesso-
ries to the ensuing slaughter. We must have our
own rules of righteousness and right living.

AVe 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 international k\w

follow in tlieir train. We will prevent declara-
tions of war before in some manner the 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 si^ortsmanlike 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
town 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 points should be de-

SYSTEMATIZING WAR 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.

270688

38 democracy's internatiokal law

CHAPTER IV

internationaIj sovereignty

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 permanent law. Not so have we approached
the great problem of world trouble, and yet such
like method of treatment would give n 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 consider;ition
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

SOVEREIGNTY 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 sj'mpathy, 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." AVith
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 authoritv 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."

Wliat 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 stern realities.

These are exactly 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-

SOVEREIGNTY 41

ereigiity tlierefore 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 sovereignt}^ 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.

TVe 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\^ti 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 hav^e 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,
Whei-ein doth sit the dread and fear of kings."

42

There was no step between tlie king, the J^ord's
anointed, and Deity itself. By a natural se-
quence this idea was applied to the State.

Few real lawyers, trained in the admeasure-
ment of human rights in contests developing the
fundamentals of Imman 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.

SO^'EREIGNTY 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 moralitj^ 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 accountabilit)\ It is,
therefore, not true as Oppenheim imi^lies 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.

E«al 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 coiisent 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 to
that of rival school boy baseball teams. With re-
gard to his own 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 continually 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\^EEIGNTY 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 DEIMOCRACY 'S INTERNATIONAL LAW

But certain classes of conventions we look upon
askance. When we are asked to enter into trea-
ties wliicli 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 w^rongful 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

("HAPTER V

THE MEANING OF "NATIONAL INTERESTS "*

In oiir study of International Law as nnder-
stood and practiced today it becomes interesting
to learn exactly what so-called ''national inter-
ests" mean, and wliy and liow 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-
now^sk^^ 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, December, 1921.

48 democracy's international 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 governments 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 with the de-
sires of the German Bank," It is hard to con-
ceive in this day, w^hen 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 treaty 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 f We must deny
it. The purpose for which g-overnment 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
within its owti circumscribed limits and for pro-

50 democracy's IjSTTEENATIONAL i^w

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 possession be-
comes a source of profit to the owner, the only
governmental interest of whose country is
through the small measure in w^hich 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

MEAXING OF "national INTERESTS" 51

and none of its substance. We shall not be free
from the danger of war until this fact is thor-
oughly understood. We should not allow our-
selves to be deceived. We 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 foreigTiers 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 tliink 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 by recalling the re-

52 demockacy'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. Tlie
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 ex)ierienced. The billions wei'e
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 people
are told, and in a state of hypnosis they believe,

MEANIXG OF "NATIONAL INTERESTS" 53

that in some mysterious manner the dancing ignis
fatuus of foreign fortune is to be converted to
their individual use. Thus it was that the French
common people were persuaded to give up their
lives and fortunes to conquer Madagascar and
Toiiquin, 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
l^eople 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 eocajx and the vermiform ap-
pendix are supposed to be. When 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 it8 losses)
are to be had by breaking down the artificial man-
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 becontos
usually an utterly sordid operation, and the people
who f].ght in it simply the cat's-paws of those who
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 th.ej started to deceive
others.

After all, ideals are created and 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. Id this
more modern day, when we are for our country
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

MEANING OF "NATIONAL 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
m^astery of the meaning and practice of honesty
internationally, which will ever penetrate behind
conduct to motive.

The more profound student of economies 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 demockacy's inteknational 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 international law superficial 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 mav be

From The Advocate of Peace, January, 1922.

58 democracy's international law

iiitiicted 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 Law — 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 betw^een 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
jDrofessor who has not been trained to use his own
mind, will 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-
ereigTi 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
Union — the freedom of intercourse and trafiSc be-
tween the States — receives scant notice, and the
unlawfulness (in nature) of interference with 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
tlie law controlling States as organized bodies of
men and the law controlling individuals. We en-
tirely forget that, in the slow i)i*ocesses of the
ages, we have worked out a basis of human right
"svhich 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 indi\ddual 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 own-
ers committed by a State, a multitude of individ-
uals, is as antisocial an act as a like offense com-
mitited by a single individual.

Apparently no International J^aw 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 international law superficial 61

been done either systematically or intelligently.
We do not speak a true langTiage of International
Law, but a jumble of sounds which we have not
resolved into their component elements.

International lawyers as yet are \vithout a clear
test 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 igTiored. 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, througliout, 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 which 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, nmch 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 ciuestion as to the

today's international law superficial 63

right of a combatant to subordinate the interests
of a peaceful nation to his 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 le\^ 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 merely setting down a narrative of facts
concerning violations of the rights of untram-
meled human existence, violations which are the
negation of \a^y. The reservation might be made
that these facts do have the subtle relation to the

64 ' democracy's internatioxal law

written or unwritten law wliicli tiie acts of a crim-
inal have to that moral code he has violated. As
furnishing data for real International Law, they
are exactly comparable mth 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^itli
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 IXTEENATIOXAX, law SUPERFICIAli 65

a war broke out between Italy and Tripoli.
Italian troops invaded Tripoli and finally con-
quered the country. "VMiat should be the attitude
of the student of international events toward this
war, and what would he find to examine and dis-
cuss ? 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 hj 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, Ital}^ 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 two 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

today's international law supeeficial 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 Italy
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 democracy'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 is 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 growing 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.

IMPEKIALISTIC ADVENTUEE 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 Avith regard to States.

For an indefinite number of thousands of years
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 democeacy's international lav/

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. ATe know that a man is entitled to liberty,
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 l)enent and for the benefit of all that he
may publish by print or word of mouth his ideas
on any point whatsoever. The written law has
recognized his right to acquire property, but has
•declared that he may not do so through violence or
Iby fraudulent de\ace 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 w^ay of suggestion, as
the full arg-ument is quite aside from our purposes,
it may be said that while 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 Avhich we
live. Particularly is this true in war times when
the government, while willing that people should

IMPEEIALISTIC ADVENTUEE 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 will
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 indi\dduals,
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 has 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 w^ere 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 lay 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.

7'i democracy's ixterxatioxal law

There is a copybook saying to which we give
formal assent that "honesty is the best policy.''
If this be true wn.t\i 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, con\dnced 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 betAveen 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 ninning 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 w^as created to serve? AVould

IMPERIALISTIC ADVENTLTIE iD

not International Law have seen that the success-
ful contestant was taking money from human be-
ings represented by the unsuccessful government f
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 pro tanto 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! By no right except it be that superior
power is recognized 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 coimnendable 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 demockacy's international law

munity, tliey 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 M^hich 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 is
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 hj 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 coining 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, w^e 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 DEMOCEACy's INTEKNATIONAL L4.W

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
w^ith 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 arg-ue 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 v.^ho 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 povs^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 through 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 ]3een largely lacking if these
lands had not been taken.

If w^e 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 sa^^, 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,
wliicli 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 paramount 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 re\'iew
when we consider the degrading growth and cor-
rupting decay of governments which have indulged
in foreign conquest — a history from which men
have so far learned little and International Law as
taught has learned nothing. Take the instances
which 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 way fol-
loAvs their example. AVe 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 notliing in connnon with democracy, the
duty of which is to secure the wellbeing of the
common man above all things else.

IMPERIALISTIC ADVENTUEE 83

The universal results of these attempts to sub-
ject alien and foreign nations to the rule of the
conqueror, \yith 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 international law

CHAPTEK ^^II

DEFICIENCIES OF INTERNATIONAL COURTS UNDER
PRESENT CONDITIONS

''Justice, Sir," said Daniel Webster, "is 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 the 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 effort on our part. Laboriously
we have been placing the cart before the horse.
The point of the argument has been missed. We
might as well regard China as a land of justice be-
cause it possesses courts and judges. We would
overlook the fact that in China a judge vnW, 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 his 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, however,
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 efflfux 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 forms of administration,
whether classified, under present nomenclature, as
legislative, executive, or judicial.

86 DEMOCRACV'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,
TciRY be regarded as proper. AVhile we speak of
Ihem 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. Th(^y 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-
hinrl the best thought of the community. Their er-

DEFICIENCIES OF INTERNATIONAL 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 jndge that the purpose of
courts is not to administer justice but to settle
disputes. To illustrate the difference between 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. We 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 INTERXATIONAL COURTS 89

pies wliicli as matters now stand are to control the
operations of the 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 will produce
a so-called justice which is warped, twisted, and
rotten. There is no secret jorocess by which dross
passing through the furnace of a courtroom \\i.ll
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, vital 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 wdthiii the jurisdiction of another
state and dictate the management of its affairs.

90 democracy'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? The 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 reallj^ intelligent courts might administer un-
der- all circumstances, then, second, w^hat about the
jurisdiction we 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 "Thou
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.

DEFTCIEKCIES CP IXTEENATIOXAL COURTS 91

The ordinary court of law will enter a judgment
iixing 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. They may say, 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 very
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 the 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 mil 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
])ioposed 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 with
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
<}ourt 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 judgTQent 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 u]ion 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 any nation to make such
reference. If a dispute did not involve the matters
above mentioned the court became powerless.

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 measures
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
which were left outside the court's powers were
the very things about wliicli 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 ai'e 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

tJoiis (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 all 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 had refused an accounting, for which prayer
was made to the court. If memory serves, the com-
plainant and his lawyer w^ere both sent to jail for
conteinpt, 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 mil, 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 would
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 nieet 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 democeacy'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 Ave 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 o^ni 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 ^vith them no con-
demnation judged by the standards of existing
Internationa] 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 will 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 offense,
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 with this independence no court
would undertake to interfere. But what is meant
is independence in the actions of the State with
relation to othei- powers. This is absurd today and
non-existent. Tlie only way to preserve independ-

DEFICIENCIES OF INTERNATIONAL COURTS 101

ence is to sliut tight the doors of the nation as was
done by Japan before the advent of Connnodorc
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 jDosition 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 law^s 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 international law

CHAPTER IX

SHOULD ANY INTERNATIONAL DISPUTE BE
RESERVED FROM ARBITRATION^*

A man presents himself 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 "svith 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 ow^l destiny, to determine for myself Avhat in-
terests are vital to me and to slay those who in my
opinion trench upon them." To the man v.iio 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.

AKBITRATING ALL INTEENATTONAL DISPUTES 103

Let US suppose a new State has arisen demand-
ing recognition 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 itsN,
independence, its honor or its vital interests,
'\Miether 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 with which w^e 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 nmst 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 iniles of the
Code Duello. Today such a work prescribing the

ARBITRATIXG 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 I

106 democracy's international law

How needless does calm investigation show to
have been even modern wars conducted by 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-Pnissian struggle? Does
any one attach large importance to the sup])osed
questions leading to the Crimean War, and was
the Charge of the Light Brigade, immortalized in
poetry, 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 grou}) 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 Avere 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 l)rawlers in the
family of nations ?

Visible advances toward the goal I have in-
dicated have been made, and in the making

AKBITRATT^^G ALL INTERNATIONAL DISPUTES 107

America lias taken an honorable and leading part.
Repeatedly have we arbitrated boundary ques-
tions, questions of a nature which, in a less ci\dl-
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 we 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 mth 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^mient was largely unjustifiable. The experience
of other nations before like tribunals was of the
same general nature. And the histors'' 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, born 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

AEBITRATING ALL INTERNATIONAL 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
Tvhatever the nation declares to be such and with.-
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 hberty 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 o\\tii 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 o^vn unjust acquisitiveness and
we would lose our fear. The thorough establish-
ment, therefore, of arbitration means the cancella-

AEBITRATING ALL INTERXATIONAL DISPUTES 111

tion of the term "vital 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. While 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 baclTward; 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, Ave 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

CHAPTER 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 !
Resolve 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 inteenational 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 w^hich 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 hmnan beings, greater than was boasted by all
the cities of Greece, of whose wars we read with
sanguinary pleasure, — greater than Eome 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 WAR 115

New York is imperia, and every New Yorker feel^ the glow
of i^atriotic 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 withal 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 you not imagine with what fervor the embat-
tled warriors of Yorkville and the Bronx, the
Bowery and the Battery, would fall upon their
weaker 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 ? And ihe cause of war, that is, the ostensi-
ble cause of war I No matter. Perhaps a bibulous

116 democracy's international 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 s])eedily 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
impo]-tant whose struggles, based upon identical
principles, occupy many interesting and lauda-
tory pages of history. With swelling pride could

SOME SUPPOSED JUST CAUSES OF WAE 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 DEISrOCRACY 'S INTERXATTOXAL, LAV7

letters, Delenda est Boston. The public mind
becomes attuned to tlie 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 \^sit 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 o^vn, step forward
an«d forbid resort to any other instrumentality
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 Eiver, and diagonally 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 vrater
supply. Shall not every stalwart Missourian who

SOME SUPPOSED JUST CAUSES OF WAR 119

feels his bosom beat mtli love for his 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 carry
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 '? Are we not indeed
living in a dull, uneventful age, and inflicting upon

120 demockacy's ixteenational law

the young men of both States the canker of peace 1
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 international^ that
books are written about the niles 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
dignity, no more glory, 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 international law

be, judicially at least, tlie United States of tlie
world, with 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. AVhat 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 ferocity 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! And why should parents who love their
offspring rush 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? And when all this is the work of sen-
tient human beings, may Ave 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 dashes 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 inteenatioxal 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 ta
the Pacific represented the solidarity of the coun-
try, and all were recognized as brothers under a
common flag, and betw^een such brothers war 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. A^Tien the day of such recognition
arrives we shall love our inunediate 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 international law

would glory in gas-eaten linman 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 with which we have decorated international
action, analysis shows that we have taken but
trivial steps to delay physical fighting over things
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
tliat health kept for a longer time the bloom of

ESSENTIALS OF PEACE AISID 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 with 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 al] these
fine resolutions 1 Has there not been a close
analogy l^etween the conduct of our leaders of
thought in this country with relation to peace and
the imaginary conduct which might have hexm in-
dulged in during a like period by the advocates of
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-
ticularly analyzed 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-
cemed 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

tlie 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? Would 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 may be. It exists because any citizen
of the United States equally with any other citi-

130 democracy's interxatio^^tal law

zen lias a right in perfect freedom to pass State
borders with all his familj^ 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 w^hatsoever.*

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 will 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 w^ith those who
are citizens or subjects of another jurisdiction.

We have the proof of this in our own experience.
With as nearly perfect a system as exists in any
country 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 WAE 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 ig-nor-
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 Grermany 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 witli 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 (xermany.
The latter pursued with narrow selfishness the
plan common to nations of treating the wealth un-
der tlioir immediate political control as an instru-

ESSENTIALS OF PEACE AND WAK 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 we have seen
to the entire world. Knowledge that it would be
taken precluded friendship between France and
Germany. From that time on Germany with 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-
lowed 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 democeacy's intern ational 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-f^aiTied francs to the development of militaiy
power in Eussia, and Germany answered by levies
on capital to meet the situation. France riposted
with a three years' ser\'ice 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 OF PEACE AND WAR 137

ingly to removing tlie 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 w^e 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 w^ar 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 igTiored
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 iimnutable 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, which 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
recently, 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 pagans and
lieathen. 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 Avith
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
<'alls savages, but who are only diiferently edu-
•cated, may there find sustenance and comfort.
The moral qualities which enable each individual
white man, conducting himself selfishly, taking no
thought of his fellow, to live with satisfaction,
find a substitute in the generosity of the man of
the wilds, who knows little of individual owner-
ship, but fully recognizes a. natural obligation to
his less fortunate fellows. The austerity of one
race is perhaps offset by the courtesy of another.

142 DEMOCRACY 'ti INTERNATIONAL LAVv'

Tlie matter-of-fact man or nation finds his or its
counter-balancing quality in the imagination or
art-sense of another.

It turns out, on thoughtful examination and
widening experience, that no one nation is at all
times sufficient unto itself. As this knowledge
comes, not alone to one country, but to all, the
need of living together amicably and the apprecia-
tion of the labors of our fellows placed by force of
circumstances under different surroundings must
with time grow stronger and stronger. We shall
perceive that the words of Goldsmith, spoken of
nations, have a broader meaning than he had in
mind when he wrote :

* * * if countries we compare
And estimate the blessings which they share,
The ' patriots flatter, still shall wisdom find
An equal portion dealt to all mankind.

Many things tend toward unity of feeling
among nations. Every traveler Avho crosses the
Atlantic, whether he start from the East or from
the West, brings about a better understanding be-
tween nations. Every railroad train crossing a
frontier, every ship plying over separating waters,
every cable conveying news from foreign nations,
every exchange of letters or business, every book
of travel, every useful or agreeable article of for-
eign production, every sale of our own produce or
manufacture to foreign lands, is a civilizing agent,

TENDENCIES TOWAED PEACE AND JUSTICE 143

containing- in itself the germ of destruction of old
national prejudices and hates. In our land the
traditional stage Irishman or German or Jew is
disappearing. If we still laugh at the representa-
tion of a foreigner in the theatre, it is not empty
ribaldry, but only the amusement we may indulge
in over the foibles of our best friends. Indeed, we
may sympathize with the pathos of the position of
the foreigner.

We borrow from other nations, sometimes, it is
true, tlie worst, but more often the best, in them.
If England politically gives us Adam Smith and
John Stuart Mill, we return our ideas of political
machinery, and from an American author Lloyd-
George has found inspiration for certain of his
most philosophic utterances. The French Pasteur
and the German Koch teach us truths beneficial to
humanity, and the death of Tolstoy left a score of
nations mourning. A better knowledge of Con-
fucius and a sympathy with Chinese aspirations
causes us to regard the individual Chinaman with
a new forbearance. The deaths of Ambassadors
furnish us opportunities for placing American
warships to a more friendly and therefore a saner
use than was ever designed for them.

There is a leveling process going on among
nations — leveling in more senses than one. We
borrow from each other, as shown, institutions,

144 democracy's international law

literature and customs, sometimes appropriately,
and sometimes, it is true, making misfits, with
grotesque consequences. At all events, we grow
more and more alike in externals, which, sooner or
later, in greater or less degree, affect mental atti-
tudes and attributes. In the end the railroad men
of lines between New York and Washington, Joppa
and Jerusalem, must resemble each other in their
habits of mind and moral qualities more than did
their great-grandfathers. The parliamentarians
of Turkey and the Congressmen of the United
States have infinitely more in common than their
forefather sheiks or attendants upon New Eng-
land town meetings a hundred years ago. The
bonds of sympathy between them have become in-
finitely stronger and have multiplied.

We look with pitying wonder or amused con-
tempt upon the state of mind which made men
separated by a slight obstruction natural enemies.
Travel, education, the press, which daily sum-
marizes the striking events of a whole world, make
the whole w^orld kin and compel a sympathy for,
and forbid our indifference to or rejoicing over,
the sufferings of any portion of mankind.

Day by day and year by year this sympathy
grows. Our business, using the world broadly, is
no longer merely the business of our little neigh-
borhood, our city, our State, our nation. It is the

TENDENCIES TOWARD PEACE AND JUSTICE 145

business of the wide world. We cannot calmly
regard injustice to a Chinaman or Jew or
Armenian or Spaniard or black man. We may
not, without accusing consciences, as a nation in-
flict injustice upon another nation. Our actions
must measure up to the standard of justice re-
quired by all the civilized nations of the world.

The self-respect and the desire for the respect
of others which prevent a stronger man from com-
mitting acts of physical oppression upon a
weaker one is beginning to have its effect upon the
dealings of a great nation with its smaller broth-
ers. At least their o^vn citizens grow more and
more critical. And this feeling grows, as I have
indicated, out of the regard each has for the other,
proceeding from the realization of the benefits
each brings to the common service of humanity.
It is easier to be brutal to a slave or one unpro-
tected by public opinion than to injure a co-worker
who brings to our common store experiences or
qualities mutually advantageous. We are build-
ing up humanity to a common level, and making it
generously alive to the interest of all, irrespective
of race or nation.

Buckle was unable to find that human nature
had materially changed in two thousand years.
Fear of consequences will no more control the mad
man or nation of todav than it controlled the like

146 democracy's international law

in ages past, but the things which provoke anger
will disappear. The democratization of the
world is minimizing the effects of the private am-
bitions of the rulers. The development of the
masses, their growing intelligence and intercourse,
is making them regard all men simply as co-
workers— friendly, not hostile rivals — in the fruit-
ful vineyard of the world. If all this be true, the
world is preparing itself for a larger measure of
justice and peace.

Human nature is not changing, but politeness
and tlie underljdng ground of politeness, sympathy
and recognition of common needs, is growing more
universal. Instead of fear of the consequences of
war leading to peace, a better comprehension of
the equality of the individual is the real pacificator.
A hesitancy to condemn men unheard to suffering
and death — men whose rights are equal to our owai
— is the mainspring of modern action. That this
feeling finds scant proclamation signifies little;
that it exists, and is growing vnth unparalleled
rapidity is the most important thing in civilization.
Right-doing between nations must become the
practice, as contempt for the national wrong-doer
becomes w^orldwide.

BASIS OF DEMOCEATIC LAW OF NATIONS 147

CHAPTER XIII

BASIS OF A DEMOCEATIC LAW OF NATIONS

When Watts, as the story goes, watched the es-
cape of steam from his mother's tea kettle, he dis-
covered a theory of expansion, from observing the
little volume of water converted into steam. This
theory was no whit different from that today illus-
trated through the boilers and engines dri\'ing tlic
largest ocean liner. All the principle was illus-
trated in the little utensil of the kitchen. It re-
mained but to create the machinery, a work which
has gone on with increasing perfection for 150
years. Our writers of International Law, finding
States in existence when their studies began, have
forgotten all about their humble origins from
which principles might be deduced. Seeing them
w^lth all their enormous crudities and violences,
writers have sought to regularize the conduct of
States by artificial rules. They have allowed
themselves to be influenced by the size of the ob-
ject before them, as if size alone created rights and
duties. With this misconception controlling them
they have created a crooked International Law.
Their action has been quite analogous to that of
a man who, finding a tremendous machine capable
of being run by steam, wonders why it does not
operate when he floods it with water. The living
spirit not there, the machinery can not function.

148 demockacy's international law

It is impossible to arrive at any just conclusions
with regard to International Law except one dis-
cover its true spirit by considering in some degree
the units of society and applying to the nation the
principles which must be recognized as controlling
its units. Stated in a few words, all the Inter-
national Law that has any right to be may be sum-
med up on the lines of the proper conduct of an
honest man, a good citizen, and if you will the
head of a family. This for us is the steam as it
escapes from the tea kettle. In so far as Inter-
national Law as applied betw^een nations has de-
parted from this, exactly to such an extent has it
poisoned the relations of nations, and with its con-
nivance untold miseries have been inflicted upon
the human race.

Let us consider then critically for a brief space
what we expect of the citizen of whom we have
spoken. He must be faithful, of course, in the per-
formance of his obligations. He is forbidden to
murder and to rob. He can not by chicanery un-
dertake to obtain the goods of his fellows. Under
the plea of protecting or advantaging the members
of his own family, he can not by any subtle
manoeuver seek to gain the upper hand of another.
He has learned to curb his temper, and, offending
no one by trick or device, conducting himself as a
gentleman, he is not likely to be disturbed by

BASIS OF DEMOCRATIC LAW OF NATIONS 149

others. Despite his strict attendance upon all
these requirements he may be imposed upon or
cheated, but it will not occur to him as within the
limits of his character to respond in kind. He will
not line his belt with revolvers and swagger up
and down the market-place.

If these be among the criteria of the good citi-
zen, we may ask why, when for reasons of conven-
ience men are united together into a nation, all
these principles should be laid aside? If Inter-
national Law is to make us over into citizens of
nations frank with themselves, all will come to
preach and practice these rules.

We may safely say that the best beginning we
can make toward the institution of real Inter-
national Law is to try to make over ourselves into
a fair-dealing nation in the fullest and most exact
meaning of the term, modeling its conduct upon
that of an upright man. When we have done this
our work will be recognized and will have its in-
evitable influence upon all the nations of the earth
as a ' ' good deed shines in a naughty world. ' '

But you say we are honest. We do pay our
debts. We comply with our national engagements,
usually, at any rate. We meet all the require-
ments. Sometimes this may be true, but how far
short we fall !

150 democracy's international law

We made, years ago, in the four quarters of the
globe, a display of our iiaval strength which in-
vited some of the weaker nations, through fear or
through example, into military expansion which
nearly ruined them. We made Japan feel her in-
feriority on the seas and pushed her further in a
race for naval supremacy which has had a
tremendously injurious effect upon the toiling
masses of Asia and has reflected back upon us as
justifying our increased naval expenses. Was our
behavior in any wise different from the indecent
course of a bully parading his artificial and
natural strength before his fellow citizens'?

^ ,We adopt in our custom-houses a system which
interferes with the trade of others with us, and,
under the guise of protecting all of our citizens,
gives pecuniary advantages to a few at the expense
of the many. We injure the free, open and
natural development or the world. We make of
ourselves in this respect a bad neighbor, and one
who encourages some of his children to gain ad-
vantages if possible at the expense of the others
or at the expense of the neighbor's children.

If Tarifa levied toll on commerce in and out of
the Mediterranean ; if Algiers did the same, with
failure marking their efforts, are we justified in
thinking our more refined endeavors will win us
the prize and Avill give us a crown of laurel ?

BASIS OF DEMOCKATIC LAW OF NATIONS 151

We seek by other policies to build up America to
the disadvantage of other nations, deflecting in-
dustry and capital from those pursuits which
would be naturally and properly gainful, into
others which may only be gainful through coddling
by the government.

The power which we possess over the Panama
Canal — a power in the exercise of which we should
only act as a trustee for the whole world — we try
to turn to the benefit of a few of our number, seek-
ing to deceive ourselves with the idea that all
Americans share in the advantage, and, as if this
justifies us, that the only person to suffer is the
foreigner.

Although in this regard our offenses have been
less than those of other great {i. e. large) nations,
we send our navy and marines to protect or to ad-
vance American investments in foreign countries,
— investments which as a nation we never asked
them to make, — while as a nation we would prefer
a natural home development rather than one which
must be propped up by bayonets.

We have made ourselves feared but not loved in
every country south of our Mexican border. 'We
have ignored nationally important teachings of
good international citizenship. Our attempts to
take advantage of our neighbors have violated
principles of righteous International Law.

152 democracy's international law

In all of these and a dozen different ways we
have raised up and are continually raising up for
ourselves enemies in every quarter of the globe,
enemies who would accept our downfall with per-
fect equanimity if not delight.

If our nation is a bad citizen of the world, we
can not excuse ourselves by saying that others are
as wrong in their actions as we are. What they
do is primarily their affair. Our business is to
do right.

If we would know whether many things we have
done are right, let us ask ourselves whether we do
not experience a feeling of resentment when any
of them are practiced in any degree by other na-
tions toward ourselves.

Have we ever put to ourselves this simple ques-
tion : Do we do the things just mentioned because
we expect to gain for some or all of us a selfish
advantage over the citizens of another nation?
Do we ask ourselves whether or not the gaining of
an advantage or the attempt to gain one by such
actions is vain when indulged in with the idea that
in the long run profit at the expense of others is
possible?

Is the man honest who seeks to obtain for him-
self or family an advantage which may only be had
through an interference with the natural rights of

BASIS OF DEMOCRATIC LAW OF NATIONS 153

another? Is the nation which pursues such a
course an honest nation? The individual who fol-
lows such lines of action may for a while, perhaps
even for his lifetime, reap pecuniary benefit. He
feels his punishment in the want of public confi-
dence and esteem ; in the exposure of his motives ;
in suits in court, and it may be in terms in prison.
The last penalty will find its analogy in war, so
often the result of unrighteous courses pursued be-
tween nations. With punishment in view, for it is
inescapable if the process be continued long
enough and be sufficiently extreme, may we not
ask ourselves wiiether it is worth our while as a
nation to be less honest than we expect an individ-
ual to be?

To none of the actions of which we have spoken
does the International Law of today impose a
negative, and yet the commencements of Inter-
national Law must concern the actions of the
nation. Just as the individual in society is re-
quired to do no wrong if he would escape the law,
written or unwritten, so must the nation. We are
justified in believing, therefore, that the Inter-
national Law of today is without substance, for it
pays scant attention to the duties owed by one
nation to its fellow-citizens in the society of na-
tions.. Without this it must remain a vain science
— no science at all.

154 democeacy's internatioxal law

The course which has been suggested is not an
easy one to pursue. We have to lay aside the ap-
parent (not real) monetary advantage of today to
escape the certain revenges of tomorrow, but we
delude ourselves with the belief that tomorrow
may never come. In indulging in this delusion, as
has been heretofore pointed out, we ignore all the
lessons of history. We forget that we may not
even levy a tariff without meeting a counter tariff
from some other nation. We may not, in fact, mal-
treat the humblest nation for the benefit of a few
Americans without at some future day an enemy
finding through it our \Tilnerable heel.

Fatuously we say *'It must never happen
again," and with all the strength of our mercenary
little souls turn to our daily business of sowing
the seeds of war and clinging to our fool's gold.

We may indulge in the thought that democracies
will do no wrong, but experience is against us. Be-
sides this we need not forget that democracy is in
the making. It is suffering from unforgotten
feudal practices. Democracy did not spring
full armed from the brains of the men of our
American Revolution. It is as yet but a child, sub-
ject to many dangers and many diseases, and hav-
ing inherited many evil tendencies from its
predecessors.

We have lost 100,')00 nien in a European war

BASIS OF DEMOCEATTC LAW OF NATIONS 155

which we have fondly called a war for democracy.
If they have died in a war simply to maintain and
preserve the limited and halting democracy we
have today, then assuredly their sacrifices have
been in vain. The thing for which we, if we are
thoughtful at all, feel that they have perished is
to insure a chance that the democracy of today
shall have free scope for its natural development.
We know that it is now disfigured and distorted by
inefficiencies, corruptions, and ignorance, but we
believe that it has in itself sufficient reserve of
health and healing power, given a free chance, to
bring about a development which would compare
in its future grandeur with that of now as the
mightiest engine in existence or conceived of at
this moment compares with the first crude attempt
of Watts to put to work the live force of steam.
To this end, of course, our dissenters and our crit-
ics of government must be encouraged instead of
hampered, as is so often the case. Even in their
blunders and misconceptions there may always be
some element of truth which may not be dis-
regarded save at peril to the Commonwealth.

Let us turn, however, to the international field.
Here we find the aristocratic idea which subordi-
nates the man to the State rampant in its most ob-
jectionable and terrible forms. International Law
needs the application of democratic principles, and

156 democracy's international law

thk application must begin with a careful survey
of the relations of the individual man to his fel-
lows. With this thought in mind we must continue
our examinations until we reach the largest con-
ceivable association or leag-ue of nations. AAlien
we do this, we shall find that we simply carry to
their ultimate the principles of democracy as we
master them. We can then develop readily for
their use the most competent machinery our knowl-
edge enables us to create and use.

This method of progression has not been fol-
lowed. The man and his rights and duties have
been lost in the nation, to which we have ascribed
as its perquisite abnormal and inhuman qualities.
When, however, guided by the spiiit of democracy,
we learn to apply it to larger and larger groups of
men, we will write a fresher and purer Inter-
national Law than has yet entered into the dreams
of would-be scholars.

We have devoted our thoughts to the machinery
of international relations. We have proposed
courts without principles to guide them. We have
devised administrative agencies without any com-
prehension of the directions in which they should
work. We would create a Frankenstein monster
perfectly capable of destroying us, because desti-
tute of thought or principle or any well-grounded
restraining influence. The results of worldwide

BASIS OF DEMOCRATIC LAW OF N-ATIONS 157

stupidity and rascality have been made manifest
on a thousand fields of conflict within the past few
years, and are continuing to plague us in this time
which we call one of peace.

In our democracj^ within States, we require,
theoretically at least, equality of all men before the
law. We exact equal justice to all. We compel
-equal submission to the mandates of the law. We
allow the individual the equal voice in the making
of the rules of conduct his status as a man justifies.
We believe that our aspirations in these respects
should extend to all men. And yet when we pass
over the imaginary lines marking our national
jurisdiction, and deal collectively with groups of
men associated under another nationality, we col-
lectively deny to them those rights and privileges
accorded within our own borders. We become
judges in our own cause. We claim for ourselves
the privilege of hampering the development of
others lest they may progress faster than we do.
We impose our will upon them. With these denials
of justice and of the democracy to which we render
freely lip-service at home, we wonder that war
continues.

Since 1776 America has been exercising a won-
derful influence upon the peoples of the world.
How profound it has been was not appreciated by
the governments of the great nations. Their rul-

158 democracy's international law

ers have but just welcomed us as a World Power,,
and in^dted us to share the world with them and
according- to their principles. The brazen and
painted materialism of their older civilization now
embraces our heretofore somewhat austere youth
in loving dalliance. We are drinking deep of the
blood-red wine of Hayti and Santo Domingo. Our
''spheres of influence" in Mexico and Central
America are our gambling tables, with human
beings as our "chips" and our dice fashioned
from the taxes on our people. W^e are becoming
world ruffians like the rest and influential in tne
world of force.

In all the ways we have described we are sowing"
dragon's teeth and from this seed we expect a crop
of peace. The next generation or two will reap the
harvest we so carefully prepared for them, but
what have our grandchildren over done for us that
we should care for their wellbeing! And mean-
while all written law is silent, or at most, whispers,
and the lessons of unwritten law are unheeded.

eesume of oue conclusions 159

CHAPTER XIV

EeSUMe of oue CO^X^LUSIONS

We have traveled swiftly and it may be super-
ficially over much ground. In approaching the
end, it seems advisable to make a summary of our
progress.

We have found that laws mthin the nation were
properly di'sdded into those of convenience, in-
volving no particular element of right or wrong, a
formal decision being given as to them for the
benefit of all ; next there was adjective law which
we may roughly say represents law in action, and
relates to the method and manner of enforcement
of all other legal directions, and lastly was that
law which involved fundamental ideas of right and
wrong. We have discovered that this third branch
of law has been developed from time to time as
mankind has learned that the consequences of cer-
tain human actions w^ere injurious to the social
welibeing and hence w^rong. It has been deduced
that they represented infractions of that natural
law v/hich envelopes society from the instant of its
formation. Thus we have concluded that if, by
way of example, murder instead of being socially
a destnictive act had been found beneficial in its
consequences, no law would have forbidden it, but

160 democracy's international law

being socially niiscliievous mankind perceived it
violated a fundamental law later framed in words.

We then turned to the field of International Law
and found it unsystematized. As in the state, there
exists conventional law as represented by a great
variety of treaties relating to matters in them-
selves indifferent. These are ordinarily observed
by nations. We found also that there was an ad-
jective law which concerned itself with the meth-
ods of bringing into force the treaty provisions re-
ferred to as well as in some extremely rare cases
carrying out what we next styled true Interna-
tional Law. We were perplexed to learn that the
students of International Law up to the present
time had not particularly concerned themselves
with the fact that there is a right and wrong in
international affairs or that the violation of rules
of right internationally results in difficulties be-
tween nations. They had not, in short, traced
back acts injurious to the society of nations to the
real International Law which had been broken, al-
though such law had been demonstrated to exist
through the effects of its violation.

In our search we have fully recognized that if we
would learn what true International Law is, aside
from easily accepted conventions, we have to dis-
cover the relation between action and reaction
as illustrated bv the conduct of nations between

eesume of oue conclusions X61

themselves. International evils existing, we agree
as a fact that some law, even though unwritten, is
being violated.

Finding in the manner above indicated of what
International Law consists, we have asked next
the question whether there can be such a thing
as the laws of war, discussion with relation to
which plays so large a part in books of what aro
called International Law. We were at once forced
to the conclusion that it is as impossible to sys-
tematize war as it would be to systematize disease ;
that the laws of war are grounded on no ethical
reason; bears no relation to right and are incap-
able of enforcement. At best they are but tempor-
ary usages, without binding force.

In further consideration of the subject of ac-
cepted International Law, wo have found its origin
among the immediate servitors of kings, and that
it is based upon the theory of kingly sovereignty,
a theory which is inconsistent in itself, and, in
the present state of the world, highly anarchistic.

We have discussed the meaning of *' national in-
terests," finding that men have been deceived by a
word and that the so-called national interests are
simply the interests of a few men, who for the time
occupying positions of influence and importance
within the nation are able to control in a large

162 democracy's international law

measure the operations of the ;D'overnment. We
were led to suspect from this consideration that
at present the control of democracy over foreign
affairs scarcely exists, although the democratic
theory must prevail between as well as within
nations if the interests of the common man in-
stead of the interests of a few are to dictate the
course of human affairs.

This brought us back to the further considera-
tion of tlie nature of International Law. We
found that from being the simple thing that it
should be, it has been made complex; that its pro-
fessors being without imagination have never un-
derstood that there w^as a comparative jurisprud-
ence offering a great field for their thoughts and
a solid foundation for the science they profess
to teach. This law controlling within the State fur-
nished the rule that whatever was wrongful infra-
state, must of necessity be wrongful interstate. In
this connection we indicated the manner in which
tlie true student of International Law must here-
after gather together his data, from which data
he will be able to deduce in detail the basic prin-
ciphvs with wliicli ho nuist liave to deal.

Pursuing our subject further we proved that the
same theory which has been worked out within the
nation establishing individual rights would liave
to furnish us the working basis of International

eeSume of our conclusions 163

Law; that proceeding in this line we shall find
that the victor has no right to control the lives or
properties of the vanquished; that the nation su-
perior in power is not justified in exploiting the
inferior nation. We have shown through different
examples that imperialistic adventure carries such
punishment as to demonstrate its antisocial inter-
national characteristics, and therefore its want of
basic right in the laws of nations.

We pointed out the inefficiencies of international
courts so far organized and the fact that it is
necessary for us to have a working basis of law —
a worthy end to which to work — before we need
concern ourselves much about the instrumentalities
which are to carry it into elf ect.

We dwelt upon the fact that under existing con-
ditions nations are determinedly opposed to sub-
mitting to arbitration matters affecting their
honor, \'ital interests and independence, but we
showed that these ^.re the very things which
should be the subjects of judicial examination,
competent rules of law first being established.

The essentials' of peace and war have not been
overlooked, and we have indicated that our defini-
tions of these conditions must needs be revised;
that during long periods of so-called peace we were
in fact engaged consciously or more often uncon-
sciously, and as actively as we knew how, in ir-

164 democracy's international law

ritating assaults upon the prosperity of other
nations, and that only by an abuse of language
could such a period of time be termed peaceful.

We have pointed out that mere resolutions in
favor of peace are not more than pious ejacula-
tions and that the standpoint of the peace advocate
should be that of a student of the causes of dis-
eases breding hate and war ; that war is being con-
stantly generated today in times of so-called peace,
this through our constant yielding to our desire to
take advantage of our neighbors.

The attempt has been to show the close anal-
ogy between the position of the man in municipal
society and of the nation in international society.
We have concluded that the advancement of our
knowledge of International Law, an International
Law which menas something to the happiness of
the world, must be based upon such a study.

In the present condition of the world's progress
in the science of government, we have accepted the
democratic principle as, for the present at least,
the last word in government. We point out how it
benefits the common man. Up till now, however,
the principles of democracy have not been applied
to the international field. Nations are autocratic,
brooking no superior. The result has vitiated
largely the good we had a right to expect to come
from the growth of the democratic principle. If

Resume or our conclusions x()5

wo would progress, therefore, internationally, con-
ditions must be reversed. Instead of allowing
aristocratic and autocratic law to vitiate democ-
racy, democracy must be given its clear chance to
purify the domain of what erroneously today is
called International Law. Democracy can only ac-
complish this purification by sternly thrusting
aside the suggestions of the old International Law
and forming its own Law of Nations based upon
those fundamental principles of right and wrong
which democracy recognizes as existing and as
appropriate between man and man.

We have recognized the fact of course that the
democracy of today is lame, halting and imperfect ;
that we are obliged as good citizens to devote our-
selves to its perfection and purification ; that until
this takes place International Law as based upon
the law of democracy of today must of necessity
be imperfect. But despite this condition it ir
manifest enough that even an approximation in
international relations to the fundamentals of
democracy as today understood would bring in its
train a wonderful worldwide relief to the common
man.

UNIVERSITY OF CALIFORNIA AT LOS ANGELES

THE UNIVERSITY LIBRARY
This book is DUE on the last date stamped below

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DEC 9 ^^^
JUL 5 1955

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-12, '36(3386)

UNIVERSITY of CALIFORNIA

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LOS ANGELES

LIBRARY

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