Page images
PDF
EPUB

stinence from all aid to either belligerent in waging the war. It is immaterial how warmly a nation may desire the success of one party, or how firmly it may intend to remain aloof from hostilities, for it is a pure question of fact whether neutrality has been preserved or not. Neutrals are forbidden to raise troops, to allow territory to be used for purposes of war, or to furnish subsidies to carry it on. If private citizens choose to take part in the hostilities, the neutrality of their government is not impaired. The private and ordinary traffic in arms and munitions of war is not an infringement of neutral duty ; but when this commerce rises to a magnitude which denotes a purpose to give succor to one or the other party, it is immaterial whether the motive be profit or sympathy, or, as is apt to be the case, both, for the fact of a breach of neutrality exists. The same rule would govern a loan openly sought for war purposes; but it would be difficult to close the great money markets to States seeking to borrow in the ordinary manner, merely because they happened to be at war. It is the duty of the State, not only to refrain in its corporate capacity from all violations of neutral duty, but to enforce the same prohibition upon its citizens by its laws, and it is liable to the injured party for its failure to do so. The so-called Foreign Enlistment Acts thus become topics of the Law of Nations, and are to be judged in the light of that system, and if they are inefficient or inoperative it is the duty of the State to reform them. The failure to restrain its citizens from breaches of neutrality by efficient legislation is not a question of internal policy or of constitutional obligation, but an international wrong, for the consequences of which every nation must answer. If therefore the territory of a neutral State is used by a belligerent power as a base of military or naval operations, a storehouse of arms, or a recruiting station, it is no defence to the complaint of the other party that the existing laws are powerless and that the Constitution forbids measures of repression without such changes in them as it is impossible to obtain. A State, as a member of the community of nations, must have proper laws to enable it to perform its duties to other States, and if it has them not, indemnity may be demanded, the refusal of which is just cause of war. This is of course a very brief and imperfect sketch of Bluntchli's statement of this important topic, but it will serve to illustrate the great advance which the Law of Nations has made in his work. It is very difficult to believe, as we read his clear and strong propositions as they succeed each other with faultless logic, that these plain rules have so recently been the theme of bitter controversy. Nor can we refrain from comparing the simple and solid method with which he deduces them from conceded premises with the ponderous and painful effort with which they were evolved through the mists of our diplomatic correspondence during the war. The keen stroke of the master severs at a blow the trunk which the hacking of many tyros can hardly overcome.

[graphic]

We had marked for comment several doctrines strikingly applicable to our late contest, but we have barely space to state them. His rule for distinguishing treason and rebellion from civil war recalls to Common-Law lawyers St. John's definition of tempus belli, in Rex v. Hampden. “ The government,” he says, in note 3 to $ 512, “is always prompt to declare those who resist its authority traitors and rebels. But when the criminal courts have lost their power, and, de facto, war is waged for political ends, criminal law is silent, and the parties are in political and military aspects enemies.” The difference between the motives which lead to war and those for which it is afterwards waged has puzzled and confused many theoretical writers. It was said, for instance, during the Rebellion, that a war, commenced to restore the authority of the Constitution and the laws, could not be rightfully carried on for the abolition of slavery. The major premise of this doctrine, which is of course that war can only be rightfully continued until its original purpose is accomplished, is expressly denied by Bluntschli. “War," he says, “is a remedy for wrongs, not a means to political ends; but once begun, it may be used for political purposes, as a compensation for the evils of warfare. The ends for which wars are waged are only partly defined by their causes. The demands of a State grow with the sacrifices and dangers it endures. Victory creates as well restores rights.” § 536. This striking and terse statement is a very happy generalization of the universal practice of States; and its value, as bringing within the sphere of morality a usage which no victor can afford to abandon, is apparent to all who recognize the great advantage of reducing all customs to the region of law.

We must refer those who wish to know more of this able book to the original, which will soon be brought within the reach of a large circle of American readers by a French translation now preparing in Paris. The chief merit of the work still remains unmentioned. Bluntschli will be remembered not alone or chiefly for his wide learning, his close reasoning, and his great power of accurate statement. His highest service to mankind is that he has demonstrated the possibility of an international code, and has himself led the way in its preparation. The greatest need for such an enterprise was the nov otW, the tortoise on which to base the fabric. Before a congress of international jurists could assemble, with any hope of practical results, it was almost indispensably necessary that a sketch or outline of the work should be prepared. With the field thus laid out before them, it would be comparatively easy to divide the labor, to assign to each his part, to discuss and debate disputed points, and to advance toward a completed work. This great preliminary labor has been done, and it is now for the world to improve the precious opportunity.

We have already shown that the great and increasing intercourse of States and nations, the advance of liberal ideas throughout the world, and the material progress of mankind, have reached a point which demands a systematic and complete body of international law. The question now arises how this important work should be accomplished. The most obvious and apparently the most simple method would be for the governments of all civilized powers to unite in a congress to agree upon a code. In the new commonwealth the citizens are independent States, from whose consent alone the law to govern them can derive its binding force. But while this is sufficiently correct in theory, the practical obstacles which stand in the way of its accomplishment are probably insurmountable ; and the condition under which such a congress would assemble could not but prove highly unfavorable for the production of valuable results. A body composed of representatives of every foreign office in the world, bound by instructions, and responsible to their respective chiefs, would more nearly resemble a meeting of creditors and debtors than an assembly of lawmakers. Every State has its traditions and its diplomatic policy; and each representative would be instructed to protect the interest of his own government, and to make the best bargain he could. England would bring to the convention high doctrines of perpetual allegiance and loose notions of neutral duty. The Emperor of the French could not well yield, to a just definition of the right of intervention, the policy which he holds so essential to the safety of his empire. The representatives of America would be heavily weighted with the defence of that peculiar doctrine of “ international retorsion,” which has lately lost its most illustrious champion by the death of the lamented Theodorus, of Abyssinia ; and with the assertion of a right of practical sympathy with struggling nationalities, which would hardly bear stating in the cold phrase of positive law. The vague and misty policy of Russia in the East, cloaked as it is in the garb of religious supremacy over vast populations not her own, demands for its protection theories of good neighborhood, to which the Western powers could hardly consent. Thus hampered and impeded, the congress could hardly expect to arrive at any thing more than agreement upon isolated points; and the Law of Nations, as a system, would be as far off as ever. Nor can we overlook the grave objections of policy which would render the accession of a State to the congress, a question of great delicacy and difficulty. The wisest and safest statesmen are those who decline to commit themselves before their duty requires it. A ruler, like a judge, should deal with cases, and not with theories; and a prudent minister might well hesitate to commit his government to rules, to which, as a philosopher and a jurist, he had given his fullest assent. He who, in the present state of the world, would hazard the future international relations of his country upon the practical workings of any code, however ably drawn or coldly debated, must be wiser or more fortunate than the rulers who have hitherto controlled mankind, if he is to avoid grave mischief to the State as the result of his hardy assumption.

[graphic]

These reasons afford weighty ground for the opinion that it would be neither wise, safe, nor practicable to intrust to an authorized official congress the task of framing a code. The difficulties enumerated would, on the other hand, be scarcely felt by a body of enlightened and competent private persons. The men most fit to codify the Law of Nations are those who know most about it; and, in the present state of learning and of governments, these are certainly not the most likely to be found in government employ. Every civilized State has among its learned men some who, by long study and reflection, have become versed in this large and difficult topic; and these, could they be convened in a congress, would probably be able to lay down a body of law which would command the substantial assent of all. A system thus impartially framed, resting securely on the broad culture and accurate learning of the most

[graphic]

competent men of their day, and commended to the intellect and the conscience of mankind by the high character and just repute of its authors, must in time win its way to the control of the international relations of the world. It would not, as we have seen, be wise, or probably practicable, to procure for such a code the binding assent of States. If it were framed with such a purpose, the knowledge that the complete success of the undertaking was to depend upon its acceptability to the cabinets of the civilized world might react disastrously on the independence of thought, and the impartiality toward pending international questions and policies, so indispensable to such a work. But it would not be too much to expect that a code so prudently framed, and resting upon such concurrent weight of authority, would in all countries be made part of that public education which is fast becoming universal; and that, in thus constituting an acknowledged and accepted branch of common knowledge throughout the world, it would, by ruling public opinion, control all civilized States.

It remains only to suggest the means of obtaining such a congress. Representing the advanced learning of the day, it should be called by learned men; and who may venture to speak for them ? Fortunately, while Bluntschli was composing his work, a body of reformers in Great Britain were taking the first steps toward an international code. Under the leadership of Mr. David Dudley Field, the Social Science Congress established a section of international law which proposed to prepare a codified statement of the Law of Nations, to be submitted to the governments of Europe and America for their acceptance. For this purpose they associated with themselves several well-known Continental and American law writers; and, adopting a carefully prepared outline, distributed to each his part, to be accomplished and reported to a meeting to be held next summer. Progress has been made in this important work, and hopes are entertained that its labors may be finished at the appointed time. It is impossible to fail to acknowledge the great weight and importance of this enterprise, and the valuable aid which its mere organization, and much more its perfected labors, will contribute to the purpose it seeks to accomplish. We have already suggested the difficulties which stand in the way of the adoption by the governments of our day of a perfected code ; but these will in no wise detract from the value of the work submitted for their adoption, if the hope of obtaining

« PreviousContinue »