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THE CRUSHING victory of President Wilson over the handful of members of Congress who got it into their heads that they knew more about International Law and were better able to manage diplomatic negotiations than either the President or the Secretary of State, will be glad tidings to the rest of the civilized world outside of one great power. For it is the truth that President Wilson, with the American people behind him, is the only thing today between International law and justice and world chaos. In all the wars for the past two centuries there has always been enough strength in neutral nations to keep the belligerents to a sort of good behavior. But in this war the United States is the only neutral which is an acknowledged great power and which exercises on this continent the authority which the six great powers—Great Britain, France, Russia, Italy, Germany and Austria-known as the concert of Europe-formerly did on that continent. The other states of the world are not strong enough to make their protests heard, but with the United States of America at their head, they may well take heart and look with hope to the maintenance of some, at least, of their historical rights in this great war.
It is nearly three hundred years since Grotius, the father of modern Internatinal Law, published his great work. He wrote it because the warfare which he had witnessed had sickened him. "I saw,” said he, "prevailing throughout the Christian world a license in making war of which even barbarous nations would have been ashamed, all reverence for divine and human law thrown away; as if men were authorized to commit all crimes without restraint." And the horrors which caused him to write impelled men to listen to his words and in a very few years to acknowledge that there must be among nations, as well as among individuals, some law to compel the statesman to keep his word and the warrior to curb his ferocity. And as the years rolled on this feeling increased; the rulers of different nations came together and framed a code of rules; in their state papers they acknowledged certain principles as part of an International common law and by treaty and through conventions and congresses we had arrived at the beginning of the year 1914, to believe that there was at last a world code of law to govern the nations in time of war as well as in time of peace.
NOWHERE was International Law better settled than in that portion of it relating to the high seas. For more than a century prize courts had been established in all civilized countries, and a body of law evolved by Jurists whose names are known to every lawyer–Story, the American; Portalis, the Frenchman; Stowell, the Englishman. These great prize judges set a very standard and their judgments came to be quoted with as much respect in other countries as in their own. They conceived their duty to be to decide the case according to law, even though their own country should be the sufferer. Thus spoke Lord Stowell in a case where the claims of Great Britain, 'a belligerent, conflicted with those of Sweden, a neutral. “It is the duty of the person who sits here to determine the question exactly as he would determine the same question if sitting at Stockholm; to assert no pretentions on the part of Great Britain which he would not allow in the same circumstances and to impose no duties on Sweden as a neutral country which he would not admit to belong to Great Britain in the same country.” And so much progress had been made on these lines that the last Hague Conference—that of 1907—agreed upon an International Prize Court, which was to sit at the Hague and to consist of fifteen judges to be nominated by the powers represented at the conference. But world affairs move, slowly and the court had not been formed in August, 1914, when the European Earthquake came.
THERE were perhaps no questions in the laws of war at sea better settled in August, 1914, than these : that a belligerent may destroy an enemy war vessel on the high seas, and every one on it, as soon as he can find it; that he may capture an enemy merchånt vessel or a neutral vessel which is suspected of carrying contraband goods or destined to a blockaded port, and take it into port and have its status settled by a prize court. And it was also the law that this might be dispensed with if the observance of the rule would involve danger to the safety of the warship or to the success of the operations in which she was engaged at the time. But before the ship was burned or sunk the captor must provide for the safety of all persons on board and secure the ship's papers in order that they may be taken to the prize court in place of the ship and cargo, and that tribunal decide whether the capture was legal. Another rule well settled was that a merchant vessel did not become a war vessel from the fact that it was armed for defense, if it was not armed for attack, and that its sailors, who would become pirates if they made an attack and could be hanged as such if captured, should if they simply fought in self defense be treated as prisoners of war.
NEUTRAL citizens therefore had a well established right to travel on belligerent merchant ships subject only to the risk of being
captured and taken to an enemy country. Germany notified the world that she would disregard all these rules and sink merchant vessels without warning, without regard to the lives of passengers of every nationality who might be on board at the time. The President of the United States was obliged to ask himself the question, shall I acquiesce in this or protest? To do the former means that I shall acknowledge the right of a belligerent to throw to the winds every rule of International Law which does not suit it. If I do, the whole fabric goes down. I have large and important claims against England which have no standing except upon International Law. If Germany may destroy these rules, soon that great work of centuries of labor of statesmen and jurists will be gone forever and we shall have gone back to the days before Grotius, when might alone made right. Then Mr. Bryan—whose advice the American people have so often found to be wrong-came himself upon the scene and told his followers that this might mean war and the thing to do was to warn every American citizen that if he exercised his right to cross the ocean on the only ships that were available when he wanted to cross, and he was murdered, it would be his own look-out. It is a long road from “I am a Roman citizen” of the great days of the Republic, and the “I am a man without a country” of the small days of the Bryan doctrine. But Americans are not now and never have been cowards and so the President was sustained and told that in his stand for law and the obligations of contract the whole country was with him.
The Docker is personally very glad of this, for he hopes to visit Europe again some day and to go as an American citizen, and if Mr. Bryan's view that American citizens should not exercise their rights for fear the American nation might be called upon to defend them, was to prevail, he would expect in every country in Europe to have even the little children hiss him when he dared to show himself in the streets.
THIS CRITICAL issue which Mr. Wilson passed through safely may come upon the nation again at any time. Internationally, as well as in our national affairs, no man is safe unless law itself is safe. In a community where there are no statutes and no police and every man is a law unto himself, one must be on guard during every waking moment and when he sleeps it must be with windows and doors guarded and with arms at his side. Modern international law, though to a large extent based on usage like our common law is now, as THE DOCKET has pointed out, largely superseded by rules which the nations have agreed to either by treaty or convention. Practically, says a leading English authority writing years before the great war, the whole
· civilized world has assented to its rules; and a state that openly, avowedly and of set purpose violates its provisions will dishonor its own signature and write itself down as an unscrupulous pledgebreaker. It will not find such a reputation helpful when next it wants to come to an agreement with its neighbors even if they do not rise in indignation at the moment and compel it to mend its ways. We are not speaking here of the possible excesses of troops that have got completely out of control, or of deplorable occurrences, such as the shooting of a wounded foe, which may happen in the hurly-burly of conflict without any command from responsible authorities. These things are incidents of all wars. We must look to increased self-control and improved discipline to reduce them to a minimum; and as long as they exist, reputable States are bound to punish their authors. What we have in mind is the case of a conscious and deliberate violation of the laws of war as a matter of State policy. Now that these laws are being clearly defined and solemnly accepted by all civilized States, the nation that could thus act must possess extreme unscrupulousness and enormous strength. It is just possible that now and again such a combination will occur. A ruler drunk with the consciousness of overwhelming power may venture to defy the moral sentiments of mankind, but only to discover by and by that outraged humanity avenges itself in unexpected ways. He could not ride off on the plea of military necessity ; for, as Prof. Westlake has been careful to point out, we have evidence in the preamble of the Hague Conventions on the subject that military necessity has been taken into account in framing the regulations and has not been left outside to control and limit their application. The powers distinctly say that the wording of the rules which they have drawn up has been inspired by the desire to diminish the evils of war as far as military necessities permit. Those therefore who imagine that a state is free to ignore because of the exigencies of the moment any rule to which it has subscribed its signature, are as erroneous in their reasoning as they are anarchial in their sentiments. The laws of war are made to be obeyed, not to be set aside at pleasure.
BUT THE future of International Law is dark and gloomy and the bright hope which there was two years ago of a coming time when by agreement between the nations international disputes would be no longer settled by the sword but by an International Tribunal, seems now almost impossible of realization. As it takes two to make a bargain, so there can be no real agreement between a number of individuals when one will not consent except under conditions which would make the agreement both a nullity and a farce. How will it be possible when this war is over for the nations to make an agreement when one of them holds to the doctrine that its agreement is not binding if it turns out to be against
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its interest. The Docker had the honor of being a guest last May at the Lake Mohonk Conference on International Arbitration. There have been assembled for the past twenty-one years, leaders in thought and action, from all parts of the United States, Canada, South America and the States of Europe. But although the meeting was held under circumstances the most discouraging, the conference reaffirmed its faith in the principle for the advancement of which it was founded. Near its close the chairman called upon the Dean of American university presidents to give his impressions of the addresses and papers that the delegates had listened to and his hopes for the future of International Law and International Arbitration. And Dr. Eliot responded in a notable though largely impromptu speech. Like all those who had attended past conferences, he said, he had experienced in August, 1914, a heavy shock to cherished hopes and confident expectations concerning the peace and progress of the race. But he had received from the speakers new aspirations and fresh encouragements. “Six hopeful things have been mentioned here. The first is the development of international law. Now, international law is not law in the ordinary meaning of that word. What we call international law is simply a series of agreements or conventions made in the course of centuries by and among the different nations of Europe and America. This body of agreements has been a slow growth, but a hopeful and promising growth. It really has little to do with what we ordinarily call law, and in particular it has no sanction behind it, and never has had. Therefore, the development of international law to which we now look forward is something different from, something better and stronger than anything which the world has known before under that name; and we may reasonably entertain some hope that such a better development may prove to be possible. This is one chance or hope for the future. The second is that sense of international obligation which was treated so well by Mr. Marburg in the second paper before this Conference—the increase in the sense of international obligation throughout the civilized world. You observe that both of these hopes depend upon the adoption of new or further agreements between or among nations. Another paper which interested us all was that which presented the possibility of effective co-operation among nations, and particularly co-operation among nations of the American hemisphere. That possibility again affords a new hope, not only for peace, but for great advances in commerce and trade, and in the national industries of the nations which are imagined as cooperating. But again co-operation among nations depends absolutely on the possibility of making international agreements which turn out in practice to be bindng. The fourth item on my list is the international federation or league based on common interests and common laws. That we heard of with satisfaction and anticipation of good—a federation or league among the nations of