the purpose of the convention to protect. It also provides that, in the event of capture, the flag of the convention shall alone be displayed, so long as the sanitary formation which it protects remains under the control of the enemy. With a view to prevent the usurpation or abuse of its name or insignia, especially in the form of trade-marks or commercial labels, the signatory powers whose legislation in this regard is insufficient, agree to take, or to propose to their respective legislative bodies, such measures as are necessary to secure to the name and emblem of the convention a complete immunity from abuse. As considerable time will be required for the preparation and adoption of legislation of the kind above described, the convention contains a clause requiring the signatory powers at the end of five years from its date of signature to communicate the results of their efforts in this regard to the general council of the Swiss confederation.

The convention also contains an undertaking that the signatory governments shall take the necessary measures to instruct the personnel of their military establishments in the detailed application of its rules to the care and treatment of the sick and wounded who are made the subject of its several stipulations. They also agree to bring a knowledge of the scope and operation of the convention to the attention of their respective citizens or subjects. The propriety of this is obvious.

The suggestion that the rules governing the care and treatment of the sick and wounded in maritime warfare should be brought before the conference for discussion, with a view to their adaptation to the conditions of modern naval warfare, was informally discussed with the representatives of several of the great maritime powers. It was found that but two governments-the United States and Japanwere represented by naval delegates, and that none of the delegations felt justified, in view of their instructions, in entering upon the discussion of the application of the rules of the Geneva convention to maritime warfare, without further advices from their respective governments, and without the presence and assistance of naval representatives in any discussion which might arise. For that reason, and as the question is one which will probably be inscribed upon the programme of the second peace conference, further consideration of the subject was not insisted upon.

GEORGE B. DAVIS.

THE DEVELOPMENT OF INTERNATIONAL LAW1

In his letter asking me to make the opening address this morning, the secretary of the Society describes the topic as "The Second Hague Conference and the Development of International Law as a Science.”

There is certainly nothing small and narrow about this text for a discourse, while at first blush it would seem to be made up of two parts not particularly related. Any impression of that sort is dispelled, however, by a little reflection.

Conferences between states, indeed, are not only suggestive of the lines upon which international law as a science may be expected to develop, but are among the most efficient means to that end. It is an essential preliminary to wise law-making to inquire to whom the law is to apply, and by whom it is to be applied. There was a stage in the history of international law when both these questions could be easily answered. While Rome was practically mistress of the world under the Cæsars, they both determined what should be the relations to each other of the various political communities under the Roman rule, and, if occasion arose, made their edicts operative by the use of the necessary force. After the Cæsars, the Holy Roman Empire and the Papacy exercised more or less completely the same prerogatives until, with the advent of the Reformation, the old order of things passed away and a period of lawlessness followed, during which international affairs seemed to be at the mercy of the strongest power concerned. It was succeeded by modern international law, so-called, of which Grotius is hailed as the father; for whose basis was taken the absolute independence and equality of states; and for whose rules the precepts of what is called the law of nature. These precepts were deemed to be founded in right reason and sound morals, were declared to be immutable, and were held to be instinctively recognized by all rational creatures and consequently to subject any offender against them to the just condemnation of mankind.

'An address delivered before the American Society of International Law, April 20, 1907.

In point of pure theory and except as affected by usage or treaty, international law today consists of the precepts of the law of nature and is applicable to sovereign states which are absolutely equal and recognize no superior. It has often been argued that rules of conduct without a designate enforcer are not so much laws as exhortations; also that the precepts of the so-called law of nature are often nebulous in kind and uncertain in application and vary in different epochs and under diverse conditions. It is the principle of the absolute equality and independence of states, however, to which I ask your attention for a few moments. It means of course equality of rights and not of power. It is a principle which is simple in statement and easy to understand-which prima facie seems to be founded in right reason and calculated to be just and equitable in its working. Yet, while all this may be theoretically true of the principle of state equality, so much irreconcilable with it has been done within the last hundred years that its continued assertion seems to be an anachronism and a mistake. A crowd of international incidents goes to prove the principle to be one almost more active and better known in its breach than in its observance. Greece cut off from Turkey and erected into a separate kingdom with its integrity guaranteed; Belgium carved out of Holland as an independent kingdom and its neutrality secured; Switzerland declared to be perpetually neutral and its soil to be inviolable; Egypt, with its overlordship of the Porte and its English occupation; the Crimean War; the treaty of Paris of 1856; the treaty of Berlin of 1878; the Suez Canal; Japan and the comparatively barren results of her victory over China; Venezuela and her arbitrations, territorial and pecuniary; Morocco and the Algeciras conference; these are only some of the more prominent occurrences which demonstrate that the principle of the equality of states, while by no means a glittering generality, can not always be counted upon as a working rule. Its great value should consist in its protection of small and weak states-the great powers being competent to assert and maintain their equality without its aid. But it is in just the cases of inferior states that the principle has been markedly inoperative, so that, regarded as part of international law, the principle of state equality is found to work where its working might be dispensed with and not to work where its working might be most confidently looked for.

International law will hardly make much progress in the way of scien

tific development so long as there is doubt as respects one of its basic principles-so long as it continues to lay down a rule, which, however plausible in theory, conflicts with the practice of the most civilized and enlightened states, and, if obeyed, would have inhibited and prevented numerous important international transactions which are universally acknowledged to have been wise in conception and beneficent in operation. It is necessary, therefore, to consider whether there must not be a material modification of the supposed hard and fast rule that every state is the equal of every other and is without a superior entitled to interfere with its absolute freedom of action. If there must be such modification, how are we to arrive at it and what is it to be?

The method of approach is, I think, obvious. Just as the best municipal law is a growth from the characteristics, habits, traditions, and environment of the people to whom it applies, so it is from the established usages and practices of the great nations of the earth that we must evolve the necessary limitations of the rule of absolute state equality. So far as the rule is concerned, in what direction is the civilized world moving and towards what goal? It is clearly proceeding from individualism to collectivism-in the direction of qualifying the right of a state to live unto itself alone and be a law unto itself alone by insisting upon its rights and duties as a member of the society of states. It will be remembered that along with the theory of a law of nature known to and binding upon all men, went the companion theory of a state of nature. In this state of nature a human being was conceived of as alone in the world, and rights and obligations founded on that fiction were imputed to him. The same twin theories applied to nations are responsible for the idea of a state in complete isolation and only amenable, like an individual similarly situated, to the so-called law of nature. But as with an individual in this imaginary solitude, so with a state-any theory of rights and obligations founded on it is unreal and deluding. Man has always been a member of human society as a state has always been a member of an international society -facts which must be reckoned with in both cases if rational rules are to be laid down for the practical conduct of the affairs of either men or The ever-increasing realization of this truth by civilized states furnishes the clue to the direction in which they are advancing, and to the modification to be made of the principle of the absolute equality of states. In place of it, it is probable that the equality predicated of

states.

states in the future will be assimilated to that of the individual under every enlightened form of government and however unqualified in general, will be held to be an equality which, in fitting and special cases, must be subordinated to the welfare of the community of states generally. In this connection and for present purposes, savage tribes and scattered, nomadic, and casual collections of men may be disregarded. Organized political communities are the units composing the society of civilized states and each is a member because it must be. Its membership is compulsory because every such state, whether in territorial contact with another or otherwise, finds itself in some sort of relations with every other. Those relations may be friendly or hostile; may spring from racial sympathy or racial antipathy, from the acceptance or the rejection of a particular religious faith, from identity or from diversity of commercial interests; and may be of all degrees of intimacy or remoteness. In modern times the number and nearness and complexity of such relations have been infinitely increased by facilities for intercourse and intercommunication which have gone far to annihilate time and space and have largely reduced the importance of geographical location. But, just as these relations compel nations to recognize each other as members of an international society of states, they in like manner compel recognition of the necessity of rules by which such relations shall be regulated. The vital question is what rules and by whom determined? It is impossible to suggest any other author of such rules than the associated states themselves. No human power superior to them exists, and could they be reasonably expected to act with unanimity, the problem would be solved. Rules upon which all states are united assume the shape of genuine international laws, since what all agree to, all may be relied upon to enforce. But unanimity among states as to international rules, while it has been achieved in various instances, can be expected only after their justice and value have been sufficiently tested by time and experience. Nor would anything be gained by proposing that they be made by a majority of all the states of the international circle or even by two-thirds or three-quarters of them, since in each case the most important interests of a great empire might be placed at the mercy of an insignificant state having little or no concern with the substantial questions involved. For a like reason, infinitely strengthened in force by its comparative weakness, a small state may justly object to the determination of