« PreviousContinue »
system of promotion, too, from one rank of the judiciary to another can hardly be considered a beneficial one. Moreover, judges are so numerous in France, that it is obviously impossible for them to command the same respect socially and maintain the same dignity as their much less numerous but more highly paid brethren of the English bench.
ERASMUS DARWIN PARKER.
NE of the most curious of the many novelties which
have recently been put forward as axioms of international law, is that advocated by the late Mr. Hall, to the effect that a State may invade the territory of another without being at war with it.
The conditions are these. The invading State must say it does not want war-what State would say it did ?-and the invaded State must do no overt act of resistance and must not formally declare war. Thus, if the invading force observes the simple precaution of disclaiming the intention of making war, then, if the invaded State chooses to do nothing—to take no active steps in defence, and to make no declaration of war, in face of such an invasion, no war can exist.
Let us point out a few of the inconsistencies and inconveniences which the acceptance of such a theory involves. It is a drawback which attaches to the discussion of matters relating to war, that a certain air of unreality must attend the subject, due to the possibility that one may waken some morning to find that the Conference of the Hague has satisfactorily abolished warfare altogether! However, even from a purely academic point of view, the topic is not without some interest.
In the first place, it is of extreme importance, in the interest of neutrals, that the time of commencement of hostilities should be fixed as definitely as possible. As things are, it is difficult enough to say when war has broken out. The Sino-Japanese war began in a typically loose way ; and the incident of the Kow-Shing at once occurred to demonstrate the risk which arises in such cases, of disputes with neutrals. The situation is sufficiently awkward when, as now, the existence of war may have to be spelt out from the conduct of the aggressor. It would become intolerable, if neutrals had in addition to find out the intentions of the government which is assailed, and speculate upon the reception the invader's troops will meet with. Certainly it takes two parties to make a war. But it does not follow that both sides must actively engage in military operations. When a State puts forcible stress of a widereaching character upon another, it cannot but be at war with it, however passively its violence is received ; unless (what is almost excluded by the hypothesis) the other State not only does not resist, but consents to the proceedings.
Were it otherwise, a two-edged weapon would be put into the hands of every powerful State, in its quarrels with its weaker neighbours. It would proceed to help itself to what it wanted, leaving the other party to the dispute in this dilemmaeither to denounce a disastrous war, or to submit to what it considers injustice. The alternative of war or compliance with an improper demand is, indeed, often presented to a nation. But the frank offer of war or compliance is entirely different from the somewhat mean process of carrying out one's wishes manu militari, and trading on the weakness of one's adversary to ensure the proceedings from disturbance. Let it be acknowledged that a nation must resort to war to enforce its demands, and nations will be careful what demands they make. Let it be permitted them to help themselves quietly to what
they want, and they will infallibly do so whenever a smaller state is in question, without much regard for the risk of war being declared against them. War is an outstanding and grave fact. The nation which commences one arouses the suspicion and the jealous attention of the whole world. The thrill of the drum vibrates through cities stored with explosives, uncomfortably enough. Friends brace themselves into an attitude of polite neutrality. The weak State finds unexpected allies, who perhaps seize the opportunity as a suitable one for effecting a desirable alteration in the balance, of power. The remotest and least concerned country finds itself thrown into the troublesome relation of a tertium inter hostes, affected with the annoyance of being obliged to take good care to observe the proprieties of that position. In short, it is not necessary to enumerate the multifarious reasons which make war an almost intolerable nuisance to the world at large, and which dispose nations to regard that State which initiates it with some vexation, and to scrutinize its motives without much indulgence. All this is a check on making war. But it is not the least check on enforcing one's will by force, and leaving it to the other party to begin the war, if so minded. And war has its risks and expenses, even for the strong. One of its risks has been alluded to above—the possibility of combinations being formed against the stronger belligerent. Neutral assistance, too, must be foregone by a power which is at war; so long as its operations are consistent with peace, it may draw supplies from third parties without giving the least ground for complaint.
Comparative freedom from the fear of military surprise would also be afforded an invader, if it were admitted that an invasion were consistent with peace. If the slightest movement of troops might be construed as the acceptance of war on the part of the invaded State, its power would be completely paralyzed. The fear of incurring war would
prevent it from troubling the invaders in the least. But if invasion means, and cannot but mean, war, the latter are hampered, delayed, and put to expense at every turn by the possibilities of injury which lies in the power of every desperate enemy. Again, there are difficulties in the region of constitutional law which would frequently prevent a Government from going to war, but which would not in the least interfere with its peaceably doing violence to its neighbours, if that were recognized as possible. Enough has been said to demonstrate the hollowness of the argument that “if a State may make war, à fortiori it may gain the same result in
a milder way.” The proposition that because certain acts may be done, subject to the risks and responsibilities of war, therefore acts of somewhat less violence may be done subject to no such restraints, sufficiently refutes itself.
This theory that forcible acts done in a “pacific” disguise must be actively resented in order to be considered as amounting to war seems inexplicable. The intention and fact being combined, how can the expression of a wish inconsistent with them affect the real nature of the transaction ? Why should the aggressor have the chance of immunity, following upon the opposite party's failing to make a sufficiently precise and express indication of the light in which the violent proceedings are regarded ? Such a theory would invest with a glamour of sanity the declaration of Louis XIV. announcing the intention of taking possession of the Spanish Netherlands“ sans que la paix soit rompue de notre part.” It amounts to a license to do flagrant acts of violence on the chance that the other party will not dare to treat as warlike what it would certainly have resented by war if done without this false colour of right.
Such forcible self-redress (outside the ancient and rigidly narrow limits of reprisals) amounts to war from the first,
* Hall, Int. Law, p. 299.
coupled with a desire not to be resisted by, and to throw the onus of declaration upon, the other side. It is extremely apt to develop into a war attended by the usual features of hostilities, which, but for its plausible temptations, would never have been begun. As a measure of aggression it comes to us stamped with the approval of two eminent judges of its merits in that regard-Louis XIV. and Frederic II. It seems not improbable that the independence of the smaller States may before long be seriously threatened by the use of this weapon. The larger States will, when it pleases them, step in and carry out their wishes by force in the territory of such powers, covering the illegality by the display of an illusory willingness to be treated as enemies, and avoiding war by loud disclaimers of that character. It is accordingly of great importance that the independence of such States be safeguarded by refusing the sanction of International Law to any such proceedings. It is not easy to see why, if troops may peacefully invade a friendly country, the forces of the latter may not, like the Quaker in the story, peaceably put them out. The only satisfactory and safe way of regarding violence exercised by one State in derogation of the sovereignty of another, unless this is of the most limited and temporary sort, is to treat it in its real character, which no amount of explanation or assurances can alter---namely, as war, pure and simple.
VIII.—THE GOLDEN AGE OF LAW.
N the realms of Law, history assuredly is both instructive
and entertaining, for it shows what a miserable myth the “golden age” is, and exposes the sham of the "good old days." It is impossible to imagine how any one who has