University of Virginia Library

INTERNATIONAL LAW

IS there really such a thing as international law?
Certainly there are two common theories of
international relations, each contradictory to the
other, each quite untenable. One, the so-called
naturalistic theory, dates from Machiavelli. It
is based on the notion that the State is merely
might personified, that it has the right to do anything
that is profitable to it. On this view the
State cannot fetter itself by international law; its
relations with other States depend simply on the
respective strength which it and they possess.
This theory leads to an absurdity. It is of course
true that the State implies physical might. But if
a State be that and nothing else, if it pay no heed
to reason or to conscience, it will never maintain
itself in a proper condition of safety. Even naturalistic
thinkers allow that it is a function of
the State to preserve internal order; that it cannot
do if it refuses to obey any law in its relations with
other States. Its deliberate contempt for good
faith, loyalty, and treaty agreements in external
relations would raise a crowd of enemies, and prevent
it from fulfilling its purpose—the embodiment
of physical force. Even Machiavelli's ideal,
Cæsar Borgia, ultimately fell into the pit which he

had digged for others. For the end and object
of the State's existence is not physical might; it
embodies might only in order that it may protect
and develop the nobler aspects of mankind. Thus
the doctrine of pure might is a vain doctrine; it
is immoral because it cannot justify its own
existence.

Directly contrary to this view of the State, is
another—an equally false view. This is the
"moral" conception due to German liberalism.
The State is here regarded as a good little boy,
to be washed, brushed, and sent to school; he must
have his ears pulled, to keep him good, and in
return he is to be thankful, just-minded, and
Heaven knows what else. This German doctrinaire
theory has done as much harm to our political
thinking as to other forms of German life. All
our political sins can be traced back to the notion
—natural enough in a learned nation—that the
pronouncement of some scientific truth is adequate
to turn the world's course into a new channel.
That notion underlies the German spirit of scientific
research; it also underlies our tendency to
all manner of practical blunders. The doctrinaire
exponent of international law fondly imagines
that he need only emit a few aphorisms and that
the nations of the world will forthwith, as reasonable
men, accept them. We forget that stupidity
and passion matter, and have always mattered
in history. Who, after all, can fail to see the
growth of national passions during the nineteenth

century? And whence do individuals—Rotteck,
Bluntschli, Heffter, and others—say to States peremptorily,
"Thou shalt"? No single man stands
high enough to impose his doctrines on all States;
he must be ready to see his theories crossed or
crushed by actual life. The delusion that there
can be such a thing as hypothetical law is at the
root of these errors. Positive law is the only law
that has real existence. Until the general public
has grown convinced of the truth and righteousness
of various legal principles, the function of
learned men is really limited to preparing the way.
Were we to pursue the abstract conception of the
State to its logical conclusion, we should find
ourselves demanding a supreme authority with
world-wide power. The authority would be such
as that claimed by the Papal See, an authority
not of this world, represented by the Vicegerent
of Christ and ruling in the name of God. That is
the sort of authority which we do not want on
earth; our beautiful world should be a world of
liberty. Nevertheless it is only ultramontane
thinkers who have consistently worked out to its
logical issue the weak and sentimental view of
international law which we at this moment are
considering. That logical issue has been rightly
stated in the great "Codex" of the Jesuits; according
to it, the world is, as it were, an ethnarchy in
which the nations form an ideal community, while
the Pope, as ethnarch, wields over them a coercive
power, keeping each State within bounds by spiritual
warnings and ghostly power. That is the one
practical conclusion deducible from the premise
that the State is a body liable to external coercion.
No system of international law can, merely because
it has a scientific basis, restrain a sovereign
State.

So then these two extreme views are both unworkable
in practice. Let us see if we can, in their
place, set up a theory of international law based
on historical foundations. First and before all,
we must recognize clearly that we must not overweight
our human nature with demands which
our weakness cannot meet. That mistake is
responsible for the perversion of many an idealist
into a disillusioned fanatic. The man who declaims
that might and the mailed fist alone decide
the rivalry of nations is often a soured fanatic
who in his youth smoked away at the pipe of
peace, discovered that that was too good, for this
poor world, rushed off to the other extreme, and
now declares that the basis of all things is brutality
and cynicism. No doubt, all great political thinkers
show a touch of cynical contempt for mankind,
and when this contempt is not too deep, it has
its justification. But it is only the man who does
not ask the impossible from human nature who
can really awaken the finer energies which, despite
all frailties and brutish instincts, lie dormant in
man.

With this in mind, we must set to work historically
and consider the State as it actually is. It

is physical force; but it is also an institution aiming
at the betterment of mankind. In so far as it is
physical force, it has a natural tendency to grab
as many possessions as may seem to it desirable.
But every State will nevertheless show of its own
accord a real regard for neighbouring States.
Prudent calculation and a mutual recognition of
advantages will gradually foster an ever-growing
sense of justice; there will arise the consciousness
that each State is bound up with the common life
of the States around it and that, willingly or unwillingly,
it must come to terms with them as a
body of States. This consideration is prompted
not by any sort of philanthropy but by a literal
sense of the benefits of reciprocal action. What
I may call the formal part of international law,
such as the rules which assure the inviolability
of ambassadors and which regulate the ceremonial
of embassies, was developed and fixed at an early
date in history. In modern Europe, the laws
about embassies are definite and well determined.
It may even be asserted that the formal side of
international law is more firmly established and
more seldom broken than the laws which govern
the internal life of each single State. Still, the
existence of international law is precarious; it is
a lex imperfecta, because there is no higher power
to control States as a whole. All depends on the
sense of reciprocity between nations, and here,
in default (as already said) of a supreme authority,
learning and public opinion may play a great part.
The jurist Savigny declared that international
law is perpetually in the making. He did not
mean, of course, that it has no real validity. For
this law which is daily growing is obviously of
practical use at every turn. There can be no
doubt that the development of modern international
law owes a very special debt to Christianity,
which extends beyond the limits of single States
towards cosmopolitanism in the noblest sense of
that term; our ancestors, therefore, were both
reasonable and logical when they for a while
omitted the Porte from among the nations bound
by international law. They could not admit the
Porte so long as it was dominated exclusively by
Mahometan standards of morals. More recently,
Christianity has spread in the Balkans, Mahometanism
has somewhat decreased there, and the
Porte has been brought into the circle of nations
subject to international law.

As States grow from small to large and from
weakness to independence they necessarily wish
to preserve peace, simply to ensure their safety
and to guard the treasures of civilization entrusted
to them. Hence grows up a general agreement to
obey international law, yielding an orderly association
of States, a political system. But this at
once presupposes a more or less approximately
level balance of power among the nations concerned.
The notion of a balance of power in Europe was
at the first accepted in a purely mechanical sense.
But it contains the germ of a perfectly true political

conception. We must not picture it under the
image of a trutina gentium, a weighing machine
of nations, with both sides of the balance equipoised.
It is enough to premise that in any
ordered political system no State should be sufficiently
strong to be able to act as it pleases with
impunity. In this connexion we may note the
superiority of present-day Europe over the immature
system of States in America. There,
the United States can do as they please, and it is
only because the relations of the United States
with the republics of South America are still
rather slight that the latter have as yet suffered
little direct interference from their northern
neighbour.

The Russian diplomat, Gortshakof, once said,
and said with truth, that neither the nations who
fear attack nor those who deem themselves strong
enough to be able to attack whom they will, will
ever hasten the completion of international law.
Actual examples will convince us of the correctness
of this acute remark. In countries like Belgium
and Holland, which have—most unfortunately
for the proper growth of international law—long
been the chief centres of its study, there has sprung
up a sentimental conception of it, begotten no
doubt by unceasing fear of attack from outside.
These countries have fallen into the custom of
addressing to the conqueror demands in the name
of humanity which contradict the power of the
State, and are unnatural and unreasonable. The

treaties of peace signed at Nymwegen and Ryswick
in 1678-9 and 1697 show that then Holland was
looked on as the diplomatic cockpit of Europe,
where all questions of high politics might be fought
out. Later on, this doubtful honour passed to
Switzerland. Nowadays, few people reflect how
ridiculous it is that Belgium should pose as the
home of international law. Just as it is true that
that law rests on a basis of practical fact, so true
is it that a State which is in an abnormal position
will inevitably form an abnormal and perverted
conception of it. Belgium is neutral. And yet
men think that it can give birth to a healthy
system of international law. I will ask you to
remember this when you are confronted with the
voluminous literature which Belgian scholars
have produced on this subject.

Again, there is one country which believes itself
in a position to attack when it will, and which is
therefore a home of barbarism in all matters of
international law. Thanks to England, marine
international law is still, in time of war, nothing
better than a system of privileged piracy. We see,
therefore, that as international law rests wholly
on reciprocity, it is vain to ask nations to listen
to empty commonplaces about humanity. Theory
must here be nailed down to practice; real reciprocity
and a real balance of power are inseparable.

If we would further define the sphere of international
law, we must bear well in mind that it
must never trespass on the existence of the State.

Demands which drive a State towards suicide are
necessarily unreasonable; each State must retain
its internal sovereignty amid the general community
of States; the preservation of that sovereignty
is its highest duty even in its dealings with its
neighbours. The only principles of international
conduct which are seldom broken and may claim
to be fixed are those which do not touch this
sovereignty, those namely which concern the
formal and ceremonial rules mentioned above.
To lay a finger on the honour of a State is to
contest its existence. Even to reproach a State
with a too touchy sense of honour is to misread
the true moral laws of politics. That State which
will not be untrue to itself must possess an acute
sense of honour. It is no violet to flower unseen.
Its strength should be shown signally in the light
of open day, and it dare not allow that strength
to be questioned even indirectly. If its flag be
insulted, it must ask satisfaction; if that satisfaction
be not forthcoming, it must declare war,
however trifling the occasion may seem.

It follows that all the limitations which States
lay on themselves in treaties are merely voluntary;
all treaties are concluded with a mental reservation
—rebus sic stantibus—so long as circumstances
remain unchanged. No State exists, no State
ever will exist, which is willing to observe the
terms of any peace for ever; no State can pledge
itself to the unlimited observance of treaties, for
that would limit its sovereign power. No treaty

can hold good when the conditions under which it
was signed have wholly changed. This doctrine
has been declared inhuman; in reality it will be
found the height of humanity. Until the State
has realized that its engagements have but limited
duration, it will never exercise due skill in treaty-making.
We cannot treat history as if we were
judges in a civil court of law. If we did that, we
should have to say that Prussia, having signed the
treaty of Tilsit, in 1807, ought not to have attacked
Napoleon in 1813. But that treaty, like all others,
was concluded rebus sic stantibus, and, thank God,
things had completely changed in the six years.
A whole nation found itself in a state to escape
from intolerable thraldom.

Never disregard the free moral life of the nation
as a whole. No State in the wide world can venture
to relinquish the "ego" of its sovereignty.
If conditions have been imposed on it which cripple
it or which it cannot observe, the nation honours
itself in breaking them. It is one of the most
admirable facts in history that a nation can recover
from material loss far sooner than from the slightest
insult to its honour. The loss of a province
may be accepted as inevitable; the endurance of
what we deem to be servitude is an unending
insult to a noble-hearted nation. Napoleon, by
stationing his troops on Prussian soil, stirred up
fierce hatred in the veins even of the most patient.
When a State has been wounded in its honour the
breach of a treaty is but a matter of time. England

and France had to admit this in 1870. In
their arrogant pride at the end of the Crimean
War, they had compelled their exhausted enemy
to agree to remove all her warships from the
Black Sea. Russia seized the opportunity offered
by the Franco-Prussian War to break the agreement,
and she was fully within her rights.

If a State finds that any of its existing treaties
have ceased to express the relative strength of
itself and the other treaty State, and if it cannot
induce the latter to a friendly cancelment of the
treaty, then has come the moment for the "legal
proceedings" customary between nations, that
is, for war. And in such circumstances war is declared
in the full consciousness that the nation is
doing its duty. Personal greed plays no part in
such an act. Those who declare war then say to
themselves, "Our treaty-obligation has failed to
correspond with our relative strength at this
moment; we cannot come to friendly terms; we
turn to the great assize of the nations." The
justice of a war depends wholly on the consciousness
of its moral necessity. And since there
neither can be nor ought to be any external coercive
power controlling the great personages of a
State, and since history must ever remain in a
state of change, war is in itself justifiable; it is an
ordinance of God. No doubt, a State may err
as to the necessity of applying this means of
coercion. Niebuhr spoke truly, when he said
that war can establish no right which did not

previously exist. Just for this reason, we may
look upon certain deeds of violence as expiated
in the very act of being committed—for example,
the completion of German or of Italian unity.
On the other hand, since not every war produces
the results which it ought to produce, the historian
must now and again withhold his judgment and
remember that the life of a State lasts for centuries.
The proud saying of the conquered Piedmontese,
"We will begin again," will always have
its place in the history of noble nations.

War will never be swept from the earth by
courts of arbitration. In questions that touch
the very life of a State, the other members of the
community of States cannot possibly be impartial.
They must take sides just because they belong to
the community of States and are drawn together
or forced apart by the most diverse interests.
If Germany were foolish enough to try to settle
the question of Alsace-Lorraine by arbitration,
what European Power could be impartial? You
could not find impartiality even in dreamland.
Hence the fact—well known to us all—that though
international congresses may formulate the results
of a war and set them out in juristic language, they
can never avert a threatened outbreak of hostilities.
Other States can be impartial only in
questions of third-rate importance.

We have now agreed that war is just and moral,
and that the ideal of eternal peace is both unjust
and immoral, and impossible. A purely intellectual

life, with its enervating effect on the thinker,
may make men think otherwise; let us get rid of
the undignified attitude of those who call possible
what never can happen. So long as human nature,
with its passions and its sins, remains what it is,
the sword shall not depart from the earth. It is
curious to see how, in the writings of the pacificists,
unconsciously the sense of national honour cuts
into the talk of cosmopolitanism. In the Old
Testament the prophet Joel demanded that Israel
should win a bloody battle over the heathen in
the valley of Jehosaphat; Victor Hugo clamours
in like manner that the Germans shall first get a
flogging before universal peace sets in. Again
and again it must be repeated that war, the violent
form of the quarrels of the nations, is the direct
outcome of the very nature of the State. The
mere fact that there are many States proves, of
itself, that war is necessary. Frederick the Great
said that the dream of universal peace is a phantom
which everyone ignores so soon as it affects
his own freedom of action. A lasting balance of
power, he adds, is inconceivable.

Curiously enough, however, it is just in the
domain of war that the triumph of the human
intellect most clearly asserts itself. All noble
nations have felt that the physical power unchained
in war must be regulated by laws. The
result has been the gradual establishment, by
common consent, of rules and customs to be observed
in time of war. The greatest successes

of the science of international law have been won
in a field which those who are fools look upon as
barbarous—I mean the domain of the laws of war.
Really gross instances of the violation of military
usages are rare in modern times. One of the
finest things about international law is that it is
perpetually progressing in this respect, and that
the universalis consensus alone has so firmly
planted a whole series of principles that they are
now well established. No doubt international
law will always lag a little behind the civil law,
for various principles of justice and culture must
first reach maturity within the State before any one
will feel anxious to find them a corner in international
conduct. Thus it was that no crusade
against slavery could claim the support of international
law till the general belief in the dignity
of man had become common in the nineteenth
century.

Another factor which contributed to strengthen
international law is the growing publicity of public
life. The days of the English Blue Book are now
past; these Blue, Yellow, and Green Books were
only intended to blind the Philistine with fumes
of a flattery through which he could not see. A
clever diplomat can easily hoodwink a parliament
by these means. But the whole life of the State
is lived today so entirely in the glare of the footlights
that a gross violation of international law
at once arouses real anger among all civilized
peoples.

INTERNATIONAL LAW IN TIME OF PEACE

We may now study some of the principles affecting
the intercourse of nations in time of peace
which have developed into law. All nations
should be allowed to enjoy, in security and without
distinction, the unifying influences of commercial
intercourse, science, and art. Ancient peoples
sometimes forbade other nations to practise
certain industries which were looked on as secret
arts. In the later Roman Empire it was forbidden
to imitate barbarians in shipbuilding, and similar
monopolist principles obtained even as late as the
days of the Hansa League. All that would be
impossible today. The State must take the risk
of free competition with other States, and that
has been laid down in a whole series of treaties.

In classical times it was, further, the custom of
almost all nations to claim exclusive access to
some particular sea. Later still, it has been held
that certain seas which were not properly called
oceans belonged to particular States. The Adriatic
was the property of Venice, the Ligurian Sea
of Genoa, the Gulf of Bothnia of Sweden. Today
the sea is said to belong to the States which border
on it only so far as it can be militarily controlled
from the coast, that is, within gunshot. But in
such questions, as in so many others, everything
ultimately depends on the actual power of the
States concerned. If a particular State can
dominate a particular sea, no well-meaning theorist

can ever make that sea public. The Caspian
Sea belongs in name to two States, Persia and
Russia. But Russia is so strong that the sea is a
Russian lake. So again, if a Power were to arise
at Constantinople strong enough to close the
Bosphorus to all comers, protestations against
such an act would be merely laughed at. Apart
from this, the sea must be regarded as open to
all ships flying a recognized flag. The high seas
are policed by the navies of all nations, and every
man-of-war has the right to stop a merchantman
and examine its papers. This is the result of a
long and intricate development. All nations are
now agreed that occasional inconveniences suffered
by their merchant ships are a far lesser evil than
piracy.

All international rights are safeguarded by
treaties. These treaties differ in many details
from compacts made under the civil law. In the
first place they depend on good faith on both
sides, since there is no tribunal to compel either
side to observe them. The ancient Athenians
were therefore obeying a right instinct when they
decided to limit the time during which their
treaties with other nations held good. Christian
nations have tended rather to regard treaties as
eternally binding, but their real attitude is that
they are willing to observe the treaty so long as
the relative strength of the States involved does
not seriously change. The more clearly this
truth is proclaimed, and the more dispassionately

it is regarded, the safer will be the treaties made;
States will not conclude agreements which the
other party is likely to break.

There are other treaties which are made under
compulsion. Such compacts are not made in
time of peace; if Switzerland be unwilling in peace
time to enter into a treaty with Germany, she is
free to refuse. But after wars the victor imposes
a compulsory peace on the conquered. Here
again we seek in vain for the external judge who
can say with authority, "This treaty is compulsory."

It does not appear that there can be any limit
of time implied in agreements under international
law. Limits are imposed on the duration of
certain legal liabilities under the ordinary law;
for example, thefts might cease to be actionable
after twenty years. But this is really a juristic
makeshift. The framer of the law has authorized
a legal fiction on practical grounds. It is
not thought worth while to pursue a trifling offence
after the lapse of a long period. But that cannot
be done in international law. The lives of
States last for centuries. One would have to
wait for years for the expiry of the time-limits of
nations. Frederick the Great had a perfect right
to claim Silesia as part of his kingdom, though the
treaties which secured it to his family were over
two hundred years old.

Much progress has been effected of late years
in the way of better drafting, and also of more

distinct ratification, of international treaties, as
well as in lucidity of wording. As a rule, such
treaties ought not to contain secret clauses. They
merely obscure the true state of affairs; they bring
it about that States which are unaware of them
form false ideas of their mutual obligations, and
thus they may easily prove dangerous to the very
State which made them. Governments used to
imagine that secret clauses would trip up other
governments; obviously they are actually a double-edged
weapon. There are, of course, exceptions
even to this. In 1866, when Prussia made peace
with the conquered States of Southern Germany,
offensive and defensive alliance between them was
concluded in a series of secret treaties. There was
good reason for this. When France, a year later,
revealed her leanings towards war, it was then
publicly announced that North and South Germany
would act together.

The sphere in which the principles of international
relations can be most definitely laid down
is that of private international law, the law which
governs the behaviour of any State towards individual
foreigners. It is a great step forward
that, in any cultured State today, a foreign private
person is sure of the protection of the law. It is
a crime against the human race to urge the view
that force alone governs international law today.
That view is wholly untrue. Only—we must not
expect the impossible. The difficulty of the
question becomes apparent as soon as one looks

into its details. One then realizes that all obligations
of private as of other international law
are entered into and kept with a certain reservation,
that, namely, they cannot be fulfilled when
they entail grave hurt to the State which promised
to carry them out. However many treaties we
may conclude in the domain of private international
law, it is always implied that we shall not
keep them if a foreigner becomes obnoxious to us.
A State must be able to expel inconvenient foreigners,
without declaring its reasons, even though
it has signed a treaty permitting foreigners to
reside within its borders. Thus, modern States
habitually expel persons suspected of being spies
or secret agents; if explanations had to be published
before active steps were taken in such cases,
those explanations would be mostly of an exceedingly
unpleasant kind, and would merely imperil
the friendly relations of the States concerned. It
is, therefore, more sensible to take the line that
any alien can be expelled at any moment, with the
simple comment: You are undesirable. And the
right to act thus must be firmly maintained, if
only in the interest of honest men, who might
otherwise be molested; this proceeding, which
appears cruel on the surface, proves in reality to
be the truest humanity. On the other hand,
States must not claim the right to expel their own
subjects. That is to claim something which is
essentially illegitimate. When Germany expelled
the Jesuits, we were at least sure that they would
find a roof elsewhere. But if Germany were to
expel its own common criminals, it would be simply
blowing them into the air, for no other State would
be willing to receive them.

Wherever international law relating to private
individuals has begun to grow up, mutual undertakings
are soon given between the various
States to assist one another in the apprehension of
criminals. Here we reach some of the hardest
problems of international law. It is easy enough
to assert generally that mankind as a whole is
bound to pursue criminals. That is recognized
by all noble nations and is easily embodied in
their laws. But how are we to draw the line
between what is criminal and what is not? To
begin with, it is eminently necessary to distinguish
political and common offenders. Every State
must consider its own interests before it takes
action against traitors against some other State.
There may exist between two countries, nominally
at peace, a latent state of war, as is now the case
between France and Germany. In such a case
it may well happen that the man who is a political
offender against the laws of his own country is
also very welcome to the other country; it would
be silly if the latter were to be forced to hand him
over to his own government. Treaties regulating
the extradition of common malefactors are easily
made; but no State will pledge itself to deliver
up all political offenders without the option of
using its own judgment in particular cases. Understandings,

again, might be effected as to anarchists,
pure and simple, who work with dynamite;
but about political offenders, as a class, no general
treaty can be drawn.

With respect to common criminals, the limits
of extradition must, of course, be settled by special
agreements. Such agreements must, of course,
apply only to really grievous offences. The judicial
codes of various lands vary so much that
it is emphatically desirable that as many crimes
as possible should be judged at home. Experience
has here shown that the farther the jurisdiction
of a nation is extended, the better the
result.

All this general movement towards securing
justice naturally tends to an ordered union between
the States concerned, that is, to a political
system in which the use of fixed forms of action
is accepted even in international matters. The
quarrels of seventeenth-century Europe on matters
of ceremonial, which now strike us as so absurd,
had a sound basis, despite the ridiculous forms
which they assumed. They showed that the
States of Europe had begun to regard themselves
as members of one family. In a well-ordered
household, everyone must have his fixed place,
and his individual rights must be recognized and
maintained. The difference between empires and
small States, between great Powers and States of
the second or third rank, still exists from a practical
point of view, though no documents specifically

record it. A great Power may be defined as a State
which could not, in the given circumstances, be
destroyed by any one other Power, but only by a
coalition. The preponderance of the great Powers
in Europe has lately become very marked, and it
is to this that we owe a certain security now observable
in our international relations. The law
affecting embassies had been so firmly established
since the Congress of Aachen in 1818, that the
clearest lines have been drawn in all civilized
States between the different classes of diplomatists.
Through the dominance of the leading European
Powers, the practice—indeed the rule—has grown
up that representation at a Congress of great
Powers is granted only to those among the lesser
States which are directly concerned in the subject
to be discussed. But when once a small State
has been invited to the Congress, its voice carries
as much weight as that of any other State, large
or small. These Congresses are governed, not by
a vote of the majority, but by the liberum veto
of natural law. A meeting which is held, not to
conduct a war but to formulate its results, cannot
reasonably be bound by majority votes; it must
obtain unanimity.

It appears impossible to set up any general
principle governing international behaviour. The
doctrine that you may always intervene in the
affairs of another State is as false as the doctrine
that you may never do so. A State may find itself
driven to regard the party struggles in a neighbouring

country as harmful to its own peace.
Were a cosmopolitan party to seize the reins in a
State which bordered with Germany, the issue
might look so threatening to us that we should
have no option but to interfere. To interfere,
however, involves considerable risk. The modern
world has come to believe firmly in the doctrine
of national independence, and intervention will
always arouse resentment, and that not only in
the country which suffers the intervention. Hard
experience has taught this generation to be shy
of mixing in the internal affairs of its neighbours.
But when a State's existence seems to itself to be
in peril, it both may and will intervene.

IN TIME OF WAR.

The acceptance by States of common rules for
mutual relations, even in an age when physical
force tears up treaties, shows that a law governs
their conduct, but a defective and immature law.
A state of war is usually preceded by a hostile
peace. Vain efforts at mutual understanding lead,
in the first instance, to one of the States passing
laws detrimental to the other. That is legal
enough, if it is not fair, and the other State will
straightway retaliate by a similar lack of consideration
for its neighbour. If one of the States trespass
on an actual treaty right, the sufferer replies by
equally conscious illegalities. Preludes of these
kinds lead finally to real war. As soon as hostilities

have actually begun, all treaties between the
two States come, legally, to an end. A formal
declaration of war is no longer needful in these
days of railways and telegraphs. Mobilizations
of troops and discussions in cabinets and parliaments
give clear warning that the State intends to
open hostilities; the declaration is an empty form.
In the war of 1870, France did not send us any
declaration of war till a week after diplomatic relations
had been broken off.

After the outbreak of war, the primary object
seems to be to bring about new international
conditions which shall correspond to the real
strength of the warring States, and which they
must recognize. It is then legitimate to carry on
the war in the most drastic manner; the ultimate
aim—peace—will thus be attained as speedily as
possible. First, therefore, pierce the enemy to the
heart. The very sharpest weapons may be used,
provided that they do not inflict on the wounded
needless torments. Philanthropists may declaim
about burning shells which fall into the powder
magazines of wooden warships; that is all beside
the point. The States themselves must settle
what weapons shall not be used; at the request of
Russia it has been agreed not to use explosive
bullets for rifles. A warring nation is wholly
justified in taking every advantage of every weakness
in its opponent. If its enemy is disturbed
by internal revolts and conspiracies, it may make
full use of them; in 1866, it was only the swift

march of events that prevented us Prussians from
entering into agreements with the Hungarians
against their Austrian masters.

A warring nation may call to its fighting line
the whole of its troops—whether barbarian or
civilized. On this point we must keep an open
mind and avoid prejudice against any particular
nation. There were howls in Germany during the
Franco-Prussian war because the French set the
Turcos to fight a highly civilized European people.
The passions of war readily breed such protests,
but science must take a dispassionate view and
declare that action such as that of the French
was not contrary to international law. A belligerent
State both may and ought to bring into
the field all its physical resources, that is, all its
troops of every kind. For where can a line be
drawn? Which of all its charming subject-races
should Russia, for example, rule out of court? The
entire physical resources of the State can, and
must, be used in war. But they must only be used
when they have been embodied in those chivalrous
forms of organization which have been gradually
established during a long series of wars. The use
of the Turcos by the French put a curious complexion
on their claim to march at the head of
civilization. Indeed, many of the complaints
made in this respect arise from the fact that
people demand from a nation more than it is able
to fulfil. We all know that in modern national
warfare every gallant subject is a spy. The expulsion

of the 80,000 Germans from France at the
beginning of the Franco-Prussian war in 1870 was,
therefore, in accordance with international law;
the one point to which we can object in the whole
proceeding is, that the French displayed a certain
brutality in dealing with these Germans.

The degree of humanity to be observed in warfare
is affected by the doctrine that a war can
only be waged between two States, and not between
individual members of those States. This
doctrine regulates all warfare in theory, though in
practice only that on land. It should be possible
to recognize, by a distinguishing mark, all men
whom the State authorizes to wage war for it, and
who must, therefore, be treated as soldiers. We
are not, as yet, all agreed on this point, and this
failure to agree constitutes a grievous gap in
international law. Humanity in war is entirely
dependent on the question as to whether the
soldier feels that his only opponent is the enemy's
soldier, and that he need not fear an attack behind
a bush from every peasant, with whom he has
had peaceful dealings half an hour earlier. If the
soldier, journeying through a hostile country, does
not know whom to regard as soldier, and whom
to look upon as robber and highwayman, he is
driven to show himself cruel and heartless. No
one can be regarded as a soldier unless he has
taken the military oath, unless he is subject to
military law, and unless he wears some distinctive
token, even if it be not (strictly speaking) a complete

uniform. It is a self-evident fact that bands
of unauthorized volunteers must expect to meet
with harsh and ruthless treatment. It is imperative
that we should come to some sort of international
agreement as to the tokens whereby one
may know an armed man to be an actual member
of an authorized army. This point was discussed
at Brussels, in 1874, and there the conflicting
interests of the different parties were thrown into
high relief. Little States, like Switzerland, were
in no way anxious to bind themselves on such a
question.

Each State is, at present, its own judge in the
matter, and must itself determine which of its
enemies it proposes to treat as units of an army,
and which as simple robbers. Regarded from a
moral point of view, a real respect is due to the
action of many franc-tireurs in 1870 and 1871,
whom despair drove to try to save their country.
But in the light of international law, they were
mere highwaymen. In the same way, Napoleon
was right in 1809 to treat Schill and his associates
as robbers. Schill, a Prussian staff officer, himself
deserted, and induced his men to desert, and
then began to wage war against France. He was
then, according to international law, nothing more
than a robber chief. The King's anger at this
proceeding knew no bounds. What was there
left to hold the State together, if every staff officer
chose to form a little army of his own? But, in
spite of these facts, Napoleon's resolve to adhere to

the letter of the law in this affair was an act of
unparalleled cruelty, and also an act of great
imprudence. Everyone with noble instincts will
side with Schill. Schenkendorf felt this when he
represented Schill as saying: It would, however, be impossible to maintain that
the enemy's action was any infringement of international
law.

When it has once been determined who belongs
to the army, and who is entitled to the chivalrous
treatment due to a prisoner of war, private property
belonging to an enemy may be very generally
spared. But in this matter, also, it must be clearly
understood that we must not, in the name of
humanity, outrage the sense of honour of a nation.
At the Congress held at Brussels, the Prussians
proposed an international agreement that in a
conquered province the civil government should
pass ipso jure into the hands of the military authorities
of the victorious army. Such an arrangement
would, in many ways, prove beneficial to
material well-being. A general who knows that
he is entitled, by international law, to demand
obedience from foreign authorities, will be able to
keep a more decided check on his troops, and to
behave generally in a more humane manner. But
there are possessions which stand on a higher

level than trade and traffic. This German demand
expressed all the confidence of a people accustomed
to victory. But could we seriously wish that
Prussian State authorities should, by law, be
compelled to obey a Russian general? Excessive
humanity can lead to dishonour, and thus
become inhuman. We expect our countrymen to
use all lawful means to defeat the enemy. Think
for a moment of our own past experiences. Every
East-Prussian knows about President Dohna, who
during the Russian occupation carried off the
receipts and taxes to the lawful king, and did his
best to work against the enemy. Shall that be
forbidden in the name of philanthropy? Is not
patriotism, in this case, a higher duty? It
matters little whether a Russian, embittered by
this kind of resistance on the part of good and
honest Prussians, burns a few more villages than
he at first purposed. This is a consideration of
far less importance than that a nation should keep
the shield of its honour bright. The moral possessions
of a nation ought not to be destroyed, in the
name of humanity, by international law.

Even when the power of an enemy is purely
military, it is still possible to give the utmost
protection to private property, provided that the
members of the hostile army are easily recognizable.
Requisitions are allowed; it is a general practice
to give promissory notes in exchange. The task
of getting them all paid is, of course, left to the
conquered. War against private property as such,

of which the laying waste of the Palatinate at the
end of the seventeenth century, by Melac, furnishes
us with a dreadful example, the wanton
burning of villages, is regarded today by all
civilized States as an infringement of the law of
nations. Private property may only be injured
in so far as such injury is absolutely essential to
the success of the war.

But international law becomes mere claptrap
when these principles are applied to barbarian
nations. A negro tribe must be punished by
having its villages burnt; nothing will be achieved
without an example of this kind. Any failure on
the part of the German Empire to base its conduct
on these principles, today, could not be said to
proceed from humanity or a fine sense of justice,
but merely from scandalous weakness.[1]

And even where dealing with civilized nations,
it is right to legalize only those practices which are
the real outcome of the general sense of obligation,
common to all the nations concerned. The State
must not be used as an instrument wherewith to
try experiments in humanitarianism. How drastic
an example of such an error is furnished by the
Franco-Prussian War! We declared, in a burst of
false humanity, that we would respect the private
property of the French at sea. The idea was both
noble and humane. We failed, however, to observe
that among the other States there is one—I mean
England—which is fundamentally averse to being

schooled by noble thoughts; we also failed to
realize that France would not pay us back in our
own coin. This one-sided German humanitarianism
simply released France from the necessity of
using her navy to protect her merchant ships
against German men-of-war. Her whole fleet was
thus set free for the immediate purposes of war.
The marine infantry and the really excellent
marine artillery were landed, and during the
winter we very frequently found ourselves fighting
with these marines. It will thus be seen that
the undertaking entered upon by us merely released
troops to be used against ourselves. Every
advance in humanitarianism, as expressed in international
law should, therefore, be based on the
principle of reciprocity.

But there are many items about which we are
in doubt whether they are the property of the
State or of private persons. The property of the
State is, obviously and naturally, the lawful booty
of the victor. This is primarily true of all kinds
of military supplies, in the widest sense of the
word, and of such things as State railways. But
to which class must we relegate the rolling stock
of the private railway companies, to which the
State has granted an actual monopoly? The
enemy may, of course, use the railway plant belonging
to these companies during the war; but
may he keep the carriages and trucks? Our decision
to do so during the last war was a perfectly
just one, in view of the nature of the French railways.

They were, in actual fact, the property of
the State, and we kept the carriages which we
took, and sold them back to France when terms
of peace were arranged. The question is an even
more difficult one when it relates to banks. There
are certain banks, among them the Bank of Germany,
in which a body of bankers outside the
country have a material interest. Such a practice
is very useful from a commercial point of view;
the bank is thus kept in touch with the great
business houses, and in a position to take its part
in the commercial activities of the moment. It
would be, however, a pure illusion to suppose that
the Bank of Germany would thereby be saved
from confiscation by a conqueror. An enemy
would certainly look upon it as a State bank, and
the fact that a few private persons had an interest
in it would in no way affect his decision.

It has also become a principle of international
law that the great treasures of civilization, which
serve the purposes of Art and Science, and are
looked upon as the property of humanity as a
whole, shall be secured against theft and pillage.
In earlier times this principle was trampled under
foot.

Individual members of the standing armies, and
all persons authorized to take part in national
defence, have a right to demand honourable treatment
as prisoners of war, and all attempts to force
prisoners into the enemy's army are contrary to
international law. It is, however, doubtful

whether this principle obtained during the last
century. In matters such as these, everything
depends on the sense of right and wrong which
animates the age. At the beginning of the last
century, the mercenary idea was still so grossly
prevalent that a French regiment, consisting of
course of Germans, was taken over by the Saxons
at Höchstädt, only to be lost by them at a later
date, when it went over to the Swedes. At Stralsund,
it went over to the Prussians, with whom it
finally remained, under the name of "Jung Anhalt."
But when Frederick the Great forced the
captured Saxons into the Prussian army, at Piena,
it became evident that a practice which had once
been followed as a matter of course, had now become
impossible. On that occasion, the Saxons
deserted from the Prussian army in hordes.
Nowadays, an attempt of this kind would be not
only a palpable infringement of international law,
but also an unparalleled piece of stupidity.

It goes without saying that every State has not
only the right to wage war, but also to declare
itself neutral in the wars of others as far as material
conditions permit. If a State is not in a condition
to maintain its neutrality, all talk about the same
is mere claptrap. Neutrality needs as much defending
as the partisanship of belligerent States.
It is the duty of a neutral State to disarm every
soldier who crosses its borders. If it is unable
to do so, the circumstances justify the belligerent
States in ceasing to observe its neutrality,

even if it has allowed an armed enemy to enter
but one village.

It is to be regretted that a sharp distinction is
still drawn in military law between its workings on
land and its workings at sea. All who have eyes to
see must here be struck by the disastrous influence
of English naval power on universal culture and
justice. We have not as yet obtained a "balance
of power" at sea, and Schiller's melancholy dictum,
therefore, still holds good:

Such a state of things is deeply humiliating to our
pride as a civilized nation. England is alone to
blame, for England is so immensely pre-eminent at
sea that she can do whatever she likes. All who
desire to be humane, all who thirst to realize in
some degree the ideals of international law on the
high seas, must work for a balance of power in this
direction also. One is constantly surprised by the
infatuation of public opinion at the present day.
Countries marching on the wrong road are always
glorified, and the sentimentality of Belgian exponents
of international law, and England's
barbarous views regarding maritime law, are
perpetually admired. All the other Powers would
be prepared and allow free circulation, under
certain conditions, to merchant ships in time of
war; England, alone, maintains the principle that
no distinction is to be made at sea between the
property of the State and that of private persons.
And as long as this one Power insists on carrying
out this principle, all other nations must travel on
the same barbarous road. It is true that the conditions
prevalent on land can never prevail in
quite the same way at sea, because there are many
articles of commerce which are used in warfare.
The immunity of private property at sea in time
of war can, therefore, never be quite as great as
that assured to private property on land; but this
is no reason why naval warfare should for ever
continue to be piracy, or why the belligerent
Powers should be entitled to snatch indiscriminately
the property of each other's merchants.

Maritime law has hitherto only progressed
through the efforts of the navies of second-class
Powers. One is confronted at every moment with
the dictum that the Powers are driven to adopt
humaner methods by their desire to serve their
own purposes. Herein, also, lies the explanation of
the efforts made by the second-class navies to
obtain a humaner maritime law. It is not that
the English are worse people than we are, and if
we were in their position we might, perhaps, imitate
their conduct. As early as 1780 the navies
of the second rank united themselves in an alliance
for armed neutrality, and laid down the principle,
firstly, that the flag must protect the merchandise
over which it floats, and that articles of commerce
having no definite connection with war shall be

allowed free passage on a neutral ship; and, secondly,
that every blockade must be an actual one, and
that no Power has the right to declare an entire
line of coast blockaded unless the approaches to
it are actually closed by the presence of hostile
men-of-war.

Attempts were subsequently made in innumerable
treaties to express these principles in law.
To-day, England has at last agreed to allow that
the flag covers the merchandise. This concession
is the outcome of the development of North
American naval power. If the question had been
one for Germany to decide, she would long ago
have procured some international agreement on
the immunity of private property at sea. Theory,
alone is, however, powerless in questions of international
law, if the actual power of the States
concerned does not in some measure correspond
with it.

To conclude then, the conviction grows upon us
that it can never be the task of political science to
build up for itself phantastic structure in the air;
for only that is truly human which has its roots
in the historical facts of actual life. The destinies
of nations are worked out by means of a series of
repulsions and attractions, and they follow the
law of a principle of development whose ultimate
end is veiled from mortal eyes. Its very trend is
hidden from us except at rare moments. We must
seek to understand the ways in which divine intelligence
has gradually revealed itself in the midst

of all the conflicting movements of life; we must
not seek to dominate history. The noblest quality
of the practical statesman is his ability to point
to the signs of the times, and to realize in some
measure how universal history may develop at a
given moment. Further, nothing becomes a politician
better than modesty. The circumstances
with which he is called upon to deal, are so various
and so complicated, that he must guard against
being carried away on dark and uncertain ways.
He must resign himself to desiring only the really
attainable, and to keeping his aim perpetually and
steadfastly in view. I shall be content if you have
learned during the course of these lectures how
manifold are the component parts which go to
make up a historical fact, and how it becomes us,
therefore, to be most deliberate in giving a verdict
in political matters. I shall, indeed, be satisfied
if these lectures have taught you to cultivate that
modesty which is the essential outcome of true
learning.