The real value of any system of law depends upon the efficacy of its machinery of enforcement. The legal maxim : No right without a remedy, applies also to the law of nations, which is not without remedies to protect rights from injury. They are not, it is true, the same as those employed in our municipal law; for the law of nations controls individuals through their governments, which it holds responsible for the observance of the law. Hence it follows that international remedies must usually be directed in first instance against the delinquent government.


This control of the government over individuals is carried out through the instrumentality of territorial sovereignty, which is thus seen to be the very heart of the system. Each independent state is, as it were, the agent of the law of nations to enforce international law within the territorial jurisdiction over which it holds sway. In the absence of a strongly organized central authority, no other system is practical. The independent states of which international society is composed are jealous of any interference with their liberty of action within their own territory, and sovereignty is the only system of enforcing the law which does not interfere. Perhaps it would be more accurate to say that sovereignty is the system which reduces this outside interference to a minimum.


International commerce and travel led to the establishment of large numbers of aliens within the confines of each independent state. Their rights and privileges are placed under the protection of international law, and each sovereign state in fulfilling its obligations under the law is bound to provide that they suffer no injury. Even in the most civilized state some instances of injustice will occur, but the injured foreigner who has sought in vain to secure redress through the means afforded by the state where he is sojourning may bring his grievance to the representatives of his own government, and request their interposition in his defense.

Interposition may be defined as justifiable action undertaken by a state to induce another state to respect its rights under international law, including the rights of its nationals.1 The protection of nationals through interposition thus plays the part of a useful check upon the exercise of sovereignty, which might otherwise be inclined at times to disregard international law.2 For sovereignty is not, as some believe, a right to act with absolute independence. It is no more than a presumption that any action which a state may take within its own territory in the furtherance of international law is correctly taken. So strong is this presumption that before any other interested nation may interpose in favor of a national it must show beyond a reasonable doubt that he has been deprived of some of his rights under international law. When once the evidence is sufficient to overcome the presumption of legality of the action of the sovereign, the situation is reversed - the interposing state now has the law of nations on its side and by that law is justified in insisting upon its rights.3 If milder measures prove unavailing, the interposing state may use whatever force is reasonably necessary to secure the recognition of its rights.


It sometimes happens that a weak or harassed government is unable or unwilling to compel its nationals to observe international law. In such a situation, the state whose nationals or whose interests are endangered may act directly to compel the observance of international law. Action so taken is called "self-help,"3a and is a remedy which supplements interposition. The annals of international relations are full of interesting instances of self-help. In 1831, when the authorities of what is now the Republic of Argentina failed to impose upon the inhabitants of the Falkland Islands a proper respect for the rights of American whalers repairing thither, the Government of the United States had recourse to self-help and administered directly a well-merited punishment. The derelict condition of authority over these islands was terminated by England again taking possession of them, notwithstanding the protest of the Buenos Aires Government . The Government of Argentina has long persisted in maintaining that the United States was in some measure to blame for this result. In his annual message of December 8th, 1885, President Cleveland said:

"The Argentine Government has revived the long dormant question of the Falkland Islands, by claiming from the United States indemnity for their loss, attributed to the action of the commander of the sloop-of-war Lexington in breaking up a piratical colony on those islands in 1831, and their subsequent occupation by Great Britain. In view of the ample justification for the act of the Lexington and the derelict condition of the islands before and after their alleged occupation by Argentine colonists, this Government considers the claim as wholly groundless." (Moore's Digest, vol. I, p. 298. The incident is also discussed ibid. p. 876-890, and in Stowell and Munro : International Cases, vol I, p. 208-217.)

An interesting instance of collective action in the nature of self-help was that taken by the European powers against the Prince of Chosu in 1864. The Tycoon was unable, himself, to make this unruly vassel observe the treaties, but he did not oppose the direct action of the government intervening to enforce a compliance. In fact, the Shogun's Government agreed to pay the cost of the expedition, thus indicating that the action might be considered as taken for the purpose of fulfilling the obligation incumbent upon the local sovereign.4

In 1837, the Canadian authorities crossed into the State of New York at Niagara and destroyed the Steamer Caroline, in which the Fenians were preparing to invade Canada. In. the

affray, one man was killed, and later when one McLeod boasted within the State of New York of his participation in this case, he was promptly arrested and indicted for murder. The British authorities demanded his release on the ground that, after the British Government had accepted full responsibility for McLeod's act, any discussion of the matter must be conducted between the governments concerned. The incident was settled by the acquittal of McLeod and the enactment of federal legislation to enable the federal authorities thenceforth to release any person held under similar circumstances.5

In the wars that have been fought over and about Chinese territory, the weakness of the Celestial Empire has given rise to interesting questions of self-help, as when Japan, at the time of war with Russia in 1904, entered the harbor to Shanghai and destroyed the Russian vessel Reshitelni, which had taken refuge there (Westlake, vol. II, p. 239) . Similarly, in 1914, the British cruisers destroyed the German warship Dresden when lying within the territorial waters of Chile (Stowell and Munro: Cases, vol. II, p. 274-8). In the absence of any adequate authority to insure the observance of neutrality, it is difficult to condemn these acts without qualification, high-handed as they unquestionably were. It may, however, be doubted whether the military advantage which results from such a course offers compensation sufficient to balance the shock to the public opinion of the world.


These then are the three methods of procedure for the enforcement of international law: sovereignty; interposition; and self-help. They form a system effective throughout the inhabited portions of the globe. But international commerce makes use of the sea and bids fair soon to traverse the regions of the air. There are no officials of any state to exercise dominion over the high seas or the upper air. Hence it has been found necessary to supplement territorial sovereignty by a projection of itself, which we may call "national control." Through national control, jurisdiction is extended over vessels traversing sea and air. The territorial sovereign from whom the national control emanates is internationally responsible for the observance of international law on board the vessel that flies its flag. Should any state fail to fulfill this obligation, the difficulty may be met by the injured state through recourse to interposition or even self-help, as discussed above.6


International law, as perpetuated through an evolution centuries old, has other methods of enforcement to facilitate in certain exceptional circumstances the workings of its system of territorial sovereignty. One of these we may designate as "cooperation' 1 for example, when a state, acting for the common good, punishes a pirate, even when its own immediate interests are not concerned. Similarly, in fulfillment of their obligations under cooperation, states make provision for the reciprocal extradition of fugitives from justice.7

I quote from Alpheus H. Snow the following extract relative to the suppression of the slave trade as a good illustration of cooperation: "In 1841 Great Britain, Austria, France, Prussia, and Russia entered into a treaty open to all the powers for the suppression of the slave trade by granting to each a reciprocal limited right of visitation, search, and capture of ships engaged in the slave trade, restricted to certain identified naval vessels, carefully regulated and confined to de-limited areas of the ocean. In 1842 the United States entered into a similar treaty with Great Britain, which was supplanted by a treaty of April 7, 1862, for the more effectual suppression of the slave trade." (Alpheus H. Snow: The Question of Aborigines in the Law and Practice of Nations, p. 97.)


Practical considerations and local characteristics have divided the world into the independent portions which we designate as states, but in many respects the interests of humanity are one, and upon occasion the governments of the independent states sink their jealousies to form a "combination" for the regulation of matters beyond the scope of their separate action. As an example we may take the international commission established to govern the navigation of the Danube. To take a more recent example, by the Treaty of Peace, Fiume was placed under international control. Similarly, international unions, such as the Universal Postal Union of Berne, are constituted to govern world relations in some particular matter.8


The purpose of interposition is to obtain redress, by which is meant the exaction from the delinquent state of expiation for any hurt to honor and prestige; of indemnification for material injury, and of reasonable security against the repetition of the offense. The offending state is punished by enforced compliance with these requirements, or by such reasonable severity as the circumstances may justify.

The idea of redress was primarily based upon revenge, and it is necessary to remember this in trying to understand the history of the evolution of all legal procedure.

To understand revenge it is necessary to analyze it into its component parts. The first of these is the impulse to do something to alleviate the physical or mental anguish inflicted by the injury counter-injury upon the offender being virtually instinctive, as is shown by the presence of the same motives among animals.9

An impulse so widespread and so persistent must obtain a presumption in favor of its usefulness to animal creation. Even the weak are shielded by revenge from a large measure of imposition of injustice which they would otherwise be made to endure from more powerful neighbors. One is reminded of the legend under the thistle on the Scottish arms, ''Nemo me impune lacesset" [Let no one assail me with impunity].

The motive which we have been discussing is evidently individual and selfish. The sweets of revenge assuage the feelings of the individual without regard to the effect his revenge may have upon his fellows. Perhaps the best name we can give to the fulfilment of this subjective craving is satisfaction. The more primitive egotistical craving for satisfaction, however important and useful in preserving respect for the personality of an individual, is often in conflict with the general interests of the community, since the individual in his pursuit of revenge may engender strife weakening to the society of which he is a part. This evil existed in the case of family and tribal feuds, in which the avengers were constantly embroiling the community in order to gratify their more selfish lust for revenge.10 The realization of this danger led primitive political organizations to restrict the free play of this passion for revengeful satisfaction by requiring a certain form of procedure for its application, and by prohibiting acts of vengeance at certain times and places.11

The League of the Iroquois adopted comprehensive regulations to eliminate private vengeance between the tribes of the confederation.12 Modern society replaces vengeance by penal statutes and the regular procedure of its law courts.13 Police officials and the officers of the courts take appropriate action to punish the transgressor. We are accustomed to regard our criminal procedure as intended to warn evildoers and to preserve society from their misdeeds, but a closer examination will show that it still retains many indications of its original purpose, which was to preserve the public peace. For example, many misdeeds go unpunished unless the wronged individual lodges a complaint and calls into action the machinery of the law.14 Although

punishment by the courts has been substituted for revenge, in some countries duels are still in vogue. When we turn to the family of nations, we shall find that the government often has to yield to popular cries for revenge.15 This primitive lust for revenge is still an important factor in international relations.

In municipal affairs, where private revenge has been so largely replaced by the strong arm of the law, revenge retains only the illicit and anti-social function of satisfying individual resentment. The avenger acts to relieve his wounded feelings and so to let down the

tension which has resulted from the causal act.16

The second of the component parts of revenge is intimately associated with the social life of the community and is the expression of the effort to reacquire the loss of standing (prestige) which has resulted from the infliction of some injury. The action taken under this impulse aims to reestablish prestige. The word which best serves to designate this is "rehabilitation".17 These two purposes, satisfaction and rehabilitation, are so entangled in revengeful action that it is very

difficult to separate them in any particular instance. They are, nevertheless, quite distinct.


In primitive communities the organization to mete out justice was naturally rudimentary, and revenge was relied upon as the best protection of the weak from the iniquities of the strong. The subconscious realization of social advantage would lead the community to approve and to urge the avenger on. The man who did not avenge an injury would lose the respect of the community. He would lose standing, that is prestige. Whenever there is a loss of prestige, the individual who has suffered will be stimulated to action adequate to regain his position in the society in which he lives. When an individual loses a part of the good opinion which he has previously enjoyed, he is hurt in his own self-esteem. Because of his social instincts and nurture he cannot avoid looking upon himself in the light of the public opinion of the community, and he is certain to incur the condemnation of his fellows if he allows an insult to pass unrequited.18

Governments, like individuals, suffer directly from any affront to their honor which means a loss of prestige. A nation's strength depends upon many factors, amongst which is prestige. It is not possible accurately to estimate the number or relative importance of these factors. Nevertheless, this prestige of a nation is, from a practical point of view, among its most precious possessions. When international obligations are entered into, a nation's prestige carries conviction that it will fulfil them faithfully. The rate of interest it has to pay to individuals for loans depends in great part upon the general confidence in the intention and ability of the government to meet the payments when due. Prestige lends influence to any diplomatic action in which a state maybe engaged. The glory of national prestige is reflected in a curious manner over every individual of the nation, and contributes to his success in all parts of the world. The prestige of a nation inspires every national with an inward feeling of pride in the association of his fellow nationals under an honored government and gives him an added self-confidence which also contributes directly to his success.

The elements which go to make up the estimate of prestige in any particular nation must vary. Individuals more highly developed intellectually and socially will admire the administrative efficiency of the governmental machinery of the state, the faithfulness with which it meets its international obligations and assists in the spread of enlightened policies capable of substituting bonds of union between the different communities of the world in place of narrow race or national antagonisms. They will rejoice in anything that contributes to the ability of such a state to expand its influence in its work of civilization and general enlightenment. The ignorant individual makes his estimate of the prestige of another country principally from the extent of its territory upon the map, and its military prowess, as shown in recent wars. He also takes into account the number and wealth of the individuals of the state with whom he comes in contact. Of course, many other factors enter into this estimate, such as popular songs, histories, pictures, or legends relating to the country. Upon such a basis will be formed that popular respect and approval which constitutes national prestige in other countries. Of all these factors of national prestige, military strength is by far the most important. The possession of this military strength makes it possible to prevent the forcible violation of the nation's rights, and the general understanding that any such attempt would be quickly resented and effectively resisted is, under present conditions, the best insurance of the peaceful enjoyment of a nation's rights. The complexity of international relations makes it difficult for the whole body of citizens to know what the rights of a nation are under international law, and to realize when these rights have been violated, but everyone understands that his state has a right to a courteous treatment from every other state, and any failure in this respect is immediately resented as an insult. If redress is not exacted for any lapse from courtesy, all perceive that the force looked upon as an insurance against just such an occurrence was in reality paralyzed, and part of the prestige of the insulted state is lost. Throughout the world will prevail a feeling of contempt for the pusillanimous conduct of the state which swallowed the insult. The ensuing loss of prestige will affect the state in the subsequent carrying out of its foreign policy and hamper its nationals throughout the world.19 The case of the Trent and the Fashoda incident (1898) illustrate the importance which the most advanced states attach to the maintenance of their national prestige. In the case of the Trent, President Lincoln and the Prince Consort did much to avoid popular irritation by toning down the language of the diplomatic correspondence, but war would probably have resulted had it not been for the happy cooperation of Secretary Seward and Lord Lyons to avoid any action hurtful to American prestige. (See Newton's Life of Lord Lyons, vol. I, p. 60-66). A careful reading of the correspondence relative to the Fashoda incident indicates that peace was preserved only because France was allowed to make a retreat which did not seem too humiliating. This appears from the dispatch of M. Delcasse, Minister of Foreign Affairs, to the French representative at London, October 3, 1898, in which he quotes verbatim his remarks to the British Ambassador, as follows: "We were the first," said I, "to reach Fashoda and we took it from the barbarians from whom you, two months later, took Khartoum. To ask of us to evacuate Fashoda before entering into any discussion would be equivalent to the presentation of an ultimatum. That being so, who that knows France could doubt our answer? You are not ignorant of my desire for an understanding with England, an understanding as advantageous for England as for France, nor are my conciliatory sentiments unknown to you. I state them to you thus freely because I know, and because you, yourself, are certain that they will not lead me to exceed the limit set by national honor. To reach an understanding between the two countries, I am able to make sacrifices of material interests, but in my hands the national honor shall rest secure. There is not anyone who, in my position, will employ a different language, and perhaps another might not be as well disposed."20

Roosevelt, in a letter of August 14, 1906, to Henry White, then Ambassador at Rome, said of the Kaiser (Scribner's, April, 1920, p. 394-5): "Moreover, where I have forced him to give way I have been sedulously anxious to build a bridge of gold for him, and to give him the satisfaction of feeling that his dignity and reputation in the face of the world were safe."

Norman Angell, in his interesting and stimulating book, "Europe's Optical Illusion," has marshaled arguments to prove that a victor in a modern war as - for instance, Germany after the Franco-German War - was, he believes, powerless to reap any economic advantage from the conquest. He points out that a civilized state cannot exterminate the inhabitants of a conquered territory and operate it for the profit of its nationals, and he makes a good case to show that the burdens resulting from a heavy war indemnity are felt more by the state that receives than by the state that pays. But he entirely leaves out of account the great - the vastly important factor of national prestige. Germany's victory in the Franco-German War brought her a great increase in national prestige. It allowed Prussia to secure the lead of the other German states and gave to Bismarck's diplomacy a strong support. It inspired the German nation with a confidence in itself,

the results of which are shown in its growth, organization, and industrial development. Wherever Germans have gone they have carried additional confidence and received additional marks of respect because of their victory in 1870. The intellectual classes of the world were indirectly influenced by the German success and flocked to her universities, while France, with all she had to teach, was for a time almost ignored. It would be hard to find any other explanation or any justification for the sudden collapse of French prestige, for France was then what she has recently shown herself to be; but she suffered a great loss of prestige, and French influence was dimmed for a generation. In the course of years there came about a gradual readjustment of political vision and intellectual values, until, in her glorious resistance to German aggression, France has regained the relative position in world influence which she merits. It is impossible to estimate in dollars and cents what those years of prestige meant to Germany. Similarly, it would be impossible to estimate for Japan the value of the prestige she gained through her victory over Russia. We are able to give one concrete instance she has saved millions of dollars in her interest charges by refunding her debt. Though poor and burdened by taxation, she could, after her war with Russia, borrow upon better terms than she could before. In the course of the succeeding years the sum total of the gain from the prestige consequent upon a successful conflict may be many times greater for the victor than the cost of the loss of life and property, even including such indirect injury as results from arrested development caused by a prolonged war.

The maintenance of a country's honor means the maintenance of its prestige, and even from a material point of view, honor may be considered as its most precious possession. This does not mean that a hasty recourse to force and a brutal castigation need be undertaken upon slight provocation.21

In exceptional instances, public opinion may approve of failure to exact retribution. If the offending state is evidently at the mercy of a stronger aggrieved state, an isolated offense allowed to pass unavenged will appear magnanimous and the public will often admire the self-control which the stronger evinced. This noble sentiment is sometimes carried to an extreme. There is a tendency on the part of impractical idealists to be too ready to consider the failure to exact redress as magnanimity. Magnanimity is out of place when it is likely to be mistaken for fear or weakness and endanger the security of the community through repetition of the offense. An individual, it has been said, seeks redress to recover the loss of self-esteem in other words, his estimate of what he has lost in the opinion of the community.22 To regain his own self-esteem, he must believe that he has recovered the former good opinion in which he was held by his fellows. What has been said about individuals in a community is in the main true of nations. An intentional injury or insult offered to a state or to those whom the state is bound to protect affects the self-esteem of the entire population because they feel that the respect in which their state was held by others is diminished as long as such an affront is submitted to.

After this short account of the origin of redress from revenge and the force of the motive to secure rehabilitation for the loss of prestige, we shall be better able to take up the consideration of the nature of expiation, the first of the three purposes comprehended in action taken to secure redress. The other two, as we have said above, were indemnification for material injury, and security against a repetition of the offense.


When an international offense has caused material loss, obvious and practical considerations impel the injured state to insist upon an adequate indemnity. But the injurious acts may also have caused a hurt to national honor or prestige ; in some instances, injuries of this nature may be the only issue involved.

A hurt to national honor and prestige generally results from an intentional disregard of rights, and may be actuated by one of the following motives:

1st. The desire to pick a quarrel.

2nd. The belief that the injured state is too pusillanimous to resent the wrong done it.

3rd. The belief that the injured state is not strong enough to retaliate.

If the motive is to pick a quarrel, experience shows that there is usually little advantage in delaying the retaliatory action which the injury warrants, and the sentiment of mankind still applauds the prompt taking up of the defiance. Even if there be superior considerations which should justify a refusal to engage in the conflict, public opinion will surely register its disapproval of the abnegation and the state will, from a popular view-point, suffer a loss of honor and prestige.

The same consequences will result in those instances when the failure to exact redress is due to the craven spirit upon which the injuring state counted.

As regards the third class of instances, when the insulted state is really greatly inferior in strength, the failure to take up arms for redress will not necessarily result in a loss of honor. It will, however, make very clear how inferior is the military strength of the insulted state and its political prestige will suffer.23

Sir Edward Creasy has well expressed this: "A state has," he says, "the right to repel and to exact redress for injuries to its honor. This also is a right of self-preservation. For, among nations, as among individuals, those, who tamely submit to insult, will be sure to have insults and outrages heaped upon them until the sense of intolerable wrong drives them into physical contest under probably disadvantageous circumstances, and after they have deprived themselves of that general sympathy which manly and consistent conduct will always obtain for even the unsuccessful brave. Without doubt vainglory and bluster are as detestable in a nation as in a private person. True honor consists in combining self-respect with respect for the feelings and rights of others."24 (Sir Edward S. Creasy : First Platform of International Law, London, 1876, p. 153).

To prevent the loss of honor and prestige, the injured state must demonstrate that it has brought the insulter to book, and thereby rehabilitated itself. If the insulter offers resistance, his complete subjection by the sword would be the necessary consequence; but, in general, matters do not proceed to this length. The insult given in hot blood is repented of, or the certainty that the injured state will marshal a superior force for requital begets fear and counsels conciliation. Or it may be that the lowering clouds of war make the contemner afraid to engage in a controversy which will offer his rivals an undisturbed opportunity to advance their designs. In many instances an innate sense of justice and of self-respect will lead the wrong-doer to recognize as unworthy any effort to sustain his act. It then becomes the aim of the provoking state to avoid the consequences of its act, and to arrest the measure of redress. The accomplishment of this purpose is known as "expiation" that is the acknowledgment of the wrong done by acts expressing contrition.25

Expiation may be expressed in various ways, according to the nature of the offense and the situation of the parties.

International rehabilitation, to be adequate, must meet the views of international society. In practice, when there has been any hurt to honor or prestige, rehabilitation is usually sought through the exaction of an apology. A good instance of an apology is found in the following dispatch of February 6, 1858, from Count Walewski, the French Minister of Foreign Affairs, to Count de Persigny at London. Notwithstanding the courteous tone of the dispatch, feeling ran high in France against England because of the asylum she afforded for political agitators.

Lord Palmerston had been turned out of power when he attempted to secure the adoption of legislation which would prevent Great Britain from offering so unrestricted an asylum to political conspirators against neighboring sovereigns, and when the French Government saw the consequences of this attempt and the outburst of national anger, they were willing to drop the matter and to help Disraeli, who had succeeded Lord Palmerston, by sending the conciliatory dispatch which arrived in time to be read to the House of Commons on its reassembling on March 12, after adjournment.26 As translated, the dispatch reads as follows:

"M. le Comte: The account you give me of the effect produced in England by the insertion on the Moniteur of certain addresses from the army, has not escaped my attention, and I have made a report of it to the Emperor. You are aware of the sentiments by which we have been influenced in the steps we have adopted with Her Britannic Majesty's Government on the occasion of the attack of the 14th of January [attempted assassination of Napoleon III], and of the care we have taken, in applying for its concurrence, to avoid everything that could bear the appearance of pressure on our part. All our communications manifest our confidence in its sincerity ('loyaute'), and our deference for the initiative being taken by it; and if, in the enthusiastic manifestations of the devotion of the army, words have possibly been inserted which have seemed in England to be characterized by a different sentiment, they are too much opposed to the language which the Emperor's Government has not ceased to hold that of Her Britannic Majesty, for it to be possible to attribute them to anything else than inadvertence, caused by the number of those addresses. The Emperor enjoins you to say to Lord Clarendon how much he regrets it.

"I authorize you to give a copy of this dispatch to the Principal Secretary of State for Foreign Affairs." (Parliamentary Papers, 1857-8, vol. 60, p. 127 [2317]).

In other instances, an apology is incorporated in a treaty: Great Britain, in Article I of the Treaty of Washington (May 8, 1871), agreeing to submit the Alabama claims to arbitration, expressed her regret "for the escape, under whatever circumstances, of the Alabama and other vessels from British ports and for the depredations committed by those vessels." This expression of regret is very remarkable for the clearness with which it is stated, and since this apology and agreement to arbitrate avoided a serious conflict with the United States, it is most honorable to Great Britain.

The general recognition of the obligation to apologize for any affront to a foreign state or its representatives is illustrated by the following extract from the report of an incident from Wadowice, Galicia, in the Westminster Gazette, February 19, 1908:

"Judgment was pronounced to-day in the trial, which began in the District Court here yesterday, of Wanda Dobrodzicka, a young Russian woman charged with having thrown a bomb at General Skallon, Governor General of Warsaw, on May 18th, 1906.

"The indictment set forth the existence of a very skilfully devised plot to kill the Governor-General. As he very seldom left the castle it was necessary to do something to compel him to come out. Accordingly one of the conspirators, in the uniform of a Russian officer, grossly insulted the German Vice-Consul. It became necessary, therefore, for the Governor-General to pay a personal visit to the Vice-Consul to express his regret, officially, at such an occurrence. This was exactly what the conspirators had reckoned upon, and they laid their plans accordingly. Wanda Dobrodzicka, who was only twenty years of age, was, it was alleged, entrusted with the task of killing the Governor. According to the prosecution, she took up her position on a balcony which he would pass, and when his carriage came she hurled a bomb at it. The bomb, however, failed to explode." (Oppenheim: International Incidents, p. 43-4).

An apology freely offered in recognition of a wrong which is regretted does honor to him who makes it, no less than to him who receives the amend.


Another form of honorable amend is the salute of the national flag. From an official source, we take the following extract from a letter of July 21, 1866, addressed by the commander of the U. S. S. Nipsic to the Brazilian Vice-President in the port of Bahia where the seizure of the Florida had unjustifiably been made in violation of Brazilian sovereignty and neutrality:

"Sir; The undersigned, commanding the steamer Nipsic, has the honor to inform your excellency of his arrival in this port, and to make known to your excellency that the principal object of the visit of the undersigned at this time is to carry out the instruction of the government of the United States to fire a salute of twenty-one (21) guns to the flag of Brazil, and thus to make the 'amende honorable' for an offense committed by a United States officer, which was at once disavowed by the government of the United States.

"Ever prompt to do justice, the government of the undersigned, so long ago as October 28, 1865, issued the above instructions, but which, from some irregularity, were sent to Valparaiso, and were only received by the commander-in-chief of the United States squadron on

this station on the arrival of the late mail.

"Therefore, if it be agreeable to your excellency, the undersigned will hoist the Brazilian flag at the foremast-head of this vessel, and fire a salute of twenty-one guns, at noon tomorrow, the 23rd instant.

"The undersigned, in executing this duty, begs leave to express to your excellency the undersigned's sincere hope, that with the dying echoes of the last gun will also expire any unkind feelings that may exist in Brazil from the cause which has given rise to this ceremonial."

In his answer of the same date, the President of the Province said:

" …. and believing in the sentiments which Mr. Francis B. Blake manifests, I have only to assure him that the offended honor of the country having been thus satisfied, not a vestige of resentment can remain against a government which, in so solemn a manner, proclaims to the civilized world that it does not measure the right of the offended to a satisfaction by his power to exact it, but, on the contrary, highly appreciates the just rights of a people which has so well known how to value the close bonds of friendship and consideration which have hitherto attached, and will continue to attach still more, two nations which inhabit the same continent." (Diplomatic Correspondence, 1866, Part II, p. 317-8; cf. also Moore's Digest, vol. VII, p. 1090-1).27


An interesting incident occurred in the reign of Queen Anne. In reparation for the arrest of M. Mattueof, Peter the Great's Ambassador, it was found difficult to inflict upon the culprits any adequate punishment.

The laws were acknowledged to be inadequate to the situation. Another method was hit upon, therefore, for affording Russia that undoubted satisfaction which for many months she had been so persistently demanding. In the six weeks' jubilee following the Tsar's return from his victorious campaign against Charles XII, Her Majesty's Ambassador at the Russian Court, specially invested for this single mission with extraordinary and plenipotentiary powers, apologized in open audience in the Queen's name to Peter the Great. Even his words of address were significant. "Most High and Most Potent Emperor !" he began; and continuing after a brief rehearsal of the case, he testified to "the sorrow and the just and high abhorrence" which the Queen had for "that rash deed" against the Russian Ambassador. He begged excuse for the defect

and insufficiency of the ancient British Constitution, most instantly desiring that, "entirely putting the same in oblivion," His Tsarish Majesty might "again generously continue" his high affection to the Queen and her subjects.

At the conclusion of this address, which was spoken in English, translations in German and Russian were read in a loud voice. The Ambassador then placed in the Emperor's hands an autograph letter from the Queen, which the Emperor entrusted to his Grand Chancellor before making a brief speech of acknowledgment.

It was on February 9, 1710, at a conference of the Emperor's ministers presided over by this same Grand Chancellor, that suitable conclusions to the whole matter were formulated. It was arranged that M. Mattueof, then Ambassador at The Hague, should advise Queen Anne of what had taken place at the Russian Court and of the gracious clemency of the Tsar and of his desire that Her Majesty would pardon the offenders. It was requested, however, that Her Majesty herself write an appropriate letter to M. Mattueof, upon receipt of which - so the arrangement ran - M. Mattueof would in due form ask for his letters of recall, which he had not obtained in his haste to leave England some eighteen months before. The ambassador, further, was to be reimbursed for all the costs and damages which he had been "obliged to be at, and to suffer, on account of the said affront." And finally, when all these preliminaries had been effected, it was agreed that Peter the Great should acquaint the Queen that he was "content with the foresaid satisfaction." ( This account of the Mattueof incident is taken textually from Stowell and Munro: International Cases, vol. I, p. 6-7). After the repression of the Boxer uprising, article I of the conditions contained in the joint note of December 22, 1900, signed by the representatives of the eleven intervening powers, provided for the dispatch of an extraordinary mission to Berlin to express regret for the murder of Baron von Ketteler, the German Minister, and further required the" erection on the place where the murder was committed of a commemorative monument suitable to the rank of the deceased, bearing an inscription in the Latin, German, and Chinese languages, expressing the regrets of the Emperor of China for the murder." And article IV exacted that expiatory monuments be erected "in each of the foreign or international cemeteries which had been desecrated." (Foreign Relations, 1900, p. 244; Stowell and Munro: Cases, vol. I, p. 114.)

In a note of November 7, 1906, Secretary Koot proposed to the Persian Government in regard to the expiation for the murder of one Mr. Laboree: "In like cases, which have occurred elsewhere within recent years, notably in the Chinese Empire, a practical solution of the problem has been found and one which may be followed with singular appropriateness in the present case. It is that the money penalty exacted in punishment of the crime shall be devoted to the erection of a permanent memorial structure, such as a hospital or school, to stand as a monument in reprobation of the crime and as a beneficent augury of a better state of things to come. Such a memorial building erected in the neighborhood of the murder, with an appropriate inscription, would serve as a lasting lesson in favor of law and order, besides doing a work of good among the Persian people." (Foreign Relations, 1907, Part II, p. 943-4.) It does not appear that this humane suggestion was adopted.


Rehabilitation may be secured by the exaction of money damages made sufficiently large to indicate the penalizing nature of the payment. Such a payment is comparable to wergild, which in the historical development of municipal law was at first an alternative for revenge, but later became an enforced substitute. In the case of injury resulting from loss of prestige, it is impossible to render an exact estimate in money. But since the injury is psychological, and the expiation need only be of such a nature as to satisfy public opinion, exemplary money damages suffice in many instances. There seems to exist a subconscious realization of the advantage of this form of expiation, which maintains peace, and perhaps this influences the community to encourage the pecuniary composition of offences. A similar evolution may be noted in regard to that survival of private warfare the duel. The necessity of protecting the peace of society from interruptions by private vengeance has led the United States and England, where a sense of social obligation is highly developed, to enforce the prohibition against dueling, and to countenance suits for civil damages for certain offences such as the alienation of a wife 's affections. In such instances, private revenge has taken the form of pecuniary claims presented before the tribunals. The same evolution in international relations may have the effect of replacing forcible measures to redress insults to honor by demands for exemplary damages, the amount of which might be submitted to arbitration. It cannot be said that we have gone very far on this road, but the advantage of the maintenance of peaceful relations which would result from the establishment of

such a procedure would be very great, and as the redress to the country's honor is psychological,

as has been noted above, money damages could be made to take the place of peremptory demands for salutes or other direct acknowledgments of a fault. When the award resulting from the investigation or arbitration was not made immediately and paid forthwith and considered as a debt of honor, there would be the highest possible justification for immediate recourse to force, and the state so employing force would have behind it the enlightened public opinion of the whole world.

The continuation of the same process which led in municipal law to the adoption of wergild in place of private revenge should be encouraged in relations between nations.28 Certain states which hold their honor lightly may be more chastened by the exaction of exemplary pecuniary damages than by an abasement, however abject.

It will depend upon circumstances whether a mere apology may be considered efficacious to prevent a repetition of an offense.

When Great Britain, in 1874, insisted that Guatemala must pay damages for the assault upon the British Vice Consul at San Jose, the Guatemalan Minister for Foreign Affairs, in his note of August 31, replied: "I regret to have to insist in denying the force of this argument of Lord Derby. My government cannot understand that the injury done by Gonzales to Magee is understood as done to the British nation; and, in granting that it is so, it is surprised to see that your government desires that the honor and dignity of England should be indemnified with money. The question of honor and satisfaction is arranged by the salute to the British flag, stipulated for in Article II of the protocol, as is customary between civilized nations. The honor of these and of their governments cannot be indemnified by money, whatever the sum may be that is offered. National offenses have no price.

"My government, whilst it further considers this point, insists that it owes to yours no indemnity, and with this view, trusts that you will transmit to the proper department the observations contained in this dispatch, in order that, in conformity with the stipulations of the protocol, the negotiations on this point may be opened in a formal manner."29 But when the British representative presented an ultimatum demanding an immediate payment, Guatemala complied.

The inadequacy of an apology which is merely perfunctory is illustrated by the incident which occurred at Lagos, August 18, 1759. British warships violated Portuguese neutrality near the fortress of Lagos, in Algarve, by destroying and capturing the French Squadron which had taken refuge there. The British Government expressed regrets and indicated a willingness to send a special expiatory mission, but refused to punish Admiral Boscawen and resented the intimations of Portugal that the two captured ships should be restored. (Moore's Arbitrations, vol. II, p. 1126-1130.)


Since governments do not act directly, but always through the agency of officials, it sometimes happens that the latter exceed their instructions, in which event their government may avoid a certain measure of responsibility by disavowing their acts and by inflicting an appropriate punishment. The apprehensions and even cowardice of governments sometimes lead them to take advantage of this facility to extricate themselves from embarrassing situations, without a very nice regard for the justice of their action towards an officer who has attempted to fulfil their wishes, but in recent times officials are becoming very careful to confine their acts strictly within the limits of their instructions, so that the responsibility devolves upon their government. The consequence is that a disavowal becomes much more humiliating to a government. Nevertheless, it is sometimes indicated as the only escape from disaster.

In the preceding pages we have already referred to several instances in which the acts of officials were disavowed by their governments: namely in the case of the Florida's violation of Brazilian neutrality and in the matter of the offensive statements which had appeared in the Moniteur.


When the unjustifiable act of a state or the nationals for which it is responsible has injured the material interest of another state, international justice and the maintenance of international peace require that the loss should be made good. The amount recovered for this purpose is generally called an indemnity.30

Indemnity covers reparation: that is, the replacing of the injured state in the situation in which it stood before, as when by the articles of Part VIII of the Treaty of Versailles, Germany was required, in as far as her resources would allow, to make provision for the payment of the cost of repelling the unjustifiable attack, including the war losses of the residents of the territory unjustly invaded.

"Compensation" means the making good of the other losses which are not covered by restitution and the restoration of the property to its condition before the war. Such other losses would include that resulting from the deprivation of the use of the property, and the cessation of profit.30a

In how far the payment of indirect damages resulting from an international offence may be placed upon the state that has caused the loss is a matter upon which no agreement has been reached.

In a controversy which is not pushed to the ultimate decision of force, the compromise solution which generally settles it does not ordinarily give much consideration to the more indirect or remote consequences of the injurious act. This is equally true when the matter is referred to arbitration, for the arbitrators are bound reasonably to interpret and follow the delegation of authority with which the arbitrating governments covenanted to clothe them.

Thus in the matter of the Alabama claims, the American claims for indirect losses were not allowed.31 But if war, instead of arbitration, had settled the controversy, there would have been no legal objection to the collection of the indirect losses, provided that the result of the recourse to arms had been sufficiently favorable to the United States.32 In principle, however, the innocent state that has suffered injury through the fault of another has a right to be saved whole from the harmful consequences of that fault.33


Redress would be indeed incomplete if there were no guarantee against the repetition of the offense which caused the unjustifiable injury. It is of importance to the injured state, and to the

Society of states, that such reasonable conditions be exacted as will provide security against the commission of another similar offense.34

"For," as Vattel truly says, "a state which has received an injury has the right to provide for its future security by depriving the offender of the means of doing harm." (Bk. Ill, ch. Ill, 45, Carnegie Translation, p. 250.)

In fixing the terms, the avarice and apprehensions of the victor are balanced by compassion and the fear of the intervention of other powers to preserve a healthy disposition of power.


Among the purposes comprehended in the recourse to measures of force is punishment. The principal object of punishment is to protect the community by deterring the culprit and all others from similar offenses.

In a more primitive condition of society, crimes are avenged or punished by the victim or his relatives, and the fear of retaliation or the blood-feud acts as a protection to the community against the prevalence of crime. As society developed, the continuation of these feuds became so disturbing to the peace of the community that it was found necessary to subject the procedure to be followed in avenging them to a careful regulation. In the course of time, private revenge has been almost entirely done away with, and the modern state punishes, as we have said, for the

security of society. Although the first aim is to protect the community from the repetition of the offense, the reformation of the criminal himself has recently become one of the principal concerns of our system of penal legislation and administration.35

The lack of any well defined international organization leaves to the separate member states the punishment of international transgressions. This system of self-enforcement of the law is, as was said above, sometimes called self-help. When a state exacts redress for the injury to its prestige or interests, it protects society by making it certain to all who harbor evil designs that the transgressor will be brought to book.

In a few instances, the states have united to punish some extraordinary crime against their law. The best example of this collective intervention for the purpose of punishing the guilty state is that of China after the Boxer outrages, when the combined forces of the powers occupied Peking and addressed a joint note to the Chinese government. In this note, dated December 22, 1900, and signed by the representatives of eleven states, were set forth the conditions which must

be fulfilled before the occupation of Chinese territory by the cooperating states would be terminated, conditions "which," so the note ran, "they deem indispensable to expiate the crimes committed and to prevent their recurrence." (Foreign Relations, 1900, p. 244.)


In how far it is justifiable and expedient to employ measures of unusual severity against nations that are less mindful of their international obligations is one of the most difficult problems of international law. Lord Elgin has been very severely criticized for burning the Summer Palace in retaliation upon China for her refusal to carry out the treaties she had signed and her treacherous treatment of the British negotiators. Lord Elgin recognized the criticism which his act would arouse, but considered that it was impossible in any other way to bring home to the Chinese the superior force at the command of the Europeans and their ability to command respect for their rights. A more recent example of drastic action was the French bombardment of Casablanca in 1907 in punishment for the treatment of Europeans in that place.40

In 1854, when the inhabitants of Greytown insulted the American Minister, a warship was sent to demand redress, and when this was not forthcoming, the naval officer in command, acting on his own responsibility, bombarded and burned down the town. Professor John Bassett Moore gives the following account of this latter incident: "Greytown, a community then lying outside the acknowledged boundaries of Nicaragua, in what was known as the Mosquito Coast, maintained an independent existence under the authority of the Mosquito King, who was understood to enjoy the patronage of the British Government. As the result of a controversy with Nicaragua concerning limits, which involved the question of jurisdiction over Punta Arenas, property belonging to the Accessory Transit Company, an organization of American citizens holding a charter from Nicaragua, was on various occasions seized or destroyed at that point by the Greytown authorities, and for these acts damages were demanded. There was, however, another complaint which was supposed to affect the 'dignity' of the United States. At that time the United States was represented in Central America by a minister named Solon Borland, from Arkansas, a man of spirit who had served in the Mexican War. One day the Greytown authorities attempted to arrest the captain of an Accessory Transit steamer, then lying at Punta Arenas, when Mr. Borland happened to be aboard. The captain resisted, and in the scrimmage that ensued, Mr. Borland seized a musket and gave to the captain successful support. Great excitement ensued at Greytown; and it was presently fanned to a flame by the announcement that Mr. Borland intended to call upon the resident United States commercial agent in the evening. A suggestion from the latter that this visit be considerately omitted, Mr. Borland, his blood still up, scornfully rejected; and while he was in the agent 's house, a violent commotion in the street denoted the presence of a mob. Mr. Borland, nothing daunted, promptly appeared in the gallery and warned the tumultuous assemblage to disperse. But his oratory was suddenly checked by a blow in the face from a bottle, thrown by some one in the crowd, who, after draining from the flask the last inspiring drop, used it as a missile. For the redress of these accumulated grievances, Captain Hollins, of the U. S. S. Cayane, was dispatched to Greytown. Lacking specific instructions as to procedure, he made upon the local community demands which it was either unwilling, or unable, or without adequate opportunity to meet, and, the time limit having expired, first bombarded and then burned the town, utterly destroying it. This somewhat fierce and drastic punitive measure created a sensation throughout the civilized world. I have in my collections a pamphlet on the case, published in France, on the cover of which is an arm uplifted in vengeance and bearing an incendiary torch." (Political Science Quarterly, 1915, vol. XXX, p. 390-2, quoted in Stowell and Munro : International Cases, vol. I, p. 119-121.)

In view of the many instances in which bombardment and drastic measures have been employed, it is hard to deny that there is a presumption of legality in their favor. Nevertheless, such brutality seems to be in conflict with the humanitarian principles which govern all nations in their relations with one another. A French work on the law of nations expressed the opinion that it will rarely be found that a nation capable of profiting from such lessons will incur the risk of receiving them. (See Funk-Brentano et Sorel: Droit des Gens, p. 229-230.)

When the territorial sovereign is too weak or is unwilling to enforce respect for international law, a state which is wronged may find it necessary to invade the territory and to chastise the individuals who violate its rights and threaten its security. Our relations with Mexico afford many instances of such expeditions, generally spoken of as punitive expeditions. Whenever it is possible to inflict directly upon the individuals who are responsible the punishment they deserve for the violation of international law, the ends of justice will be better served. When an entire people is made to suffer for some delinquency for which it is indirectly responsible through the action of its officials, a deep feeling of resentment may be engendered, while the very individuals who are responsible may escape the penalty calculated to restrain others from a like offense. Ordinarily, of course, the government responsible will be expected to punish the officials guilty of the violation, and when it is too weak to undertake this task, the injured government may, as has been said above, cooperate by having recourse to measures of self-help. There are many such instances of punitive expeditions to punish guilty individuals.36

When the offenders are officials of the government or when a government assumes the responsibility for the offenses by preventing punishment, the punitive expedition must be directed against the governmental authorities. An interesting case occurred in Central America. President Zelaya of Nicaragua summarily executed, December 17, 1909, two Americans, Groce and Cannon, who had participated in a revolt against his authority.

Partly in consequence of this rash and lawless act, Secretary Knox, in a note dated December 1, informed the representative of Nicaragua that "the President no longer feels for the Government of President Zelaya that respect and confidence which would make it appropriate hereafter to maintain with it regular diplomatic relations, implying the will and the ability to respect and assure what is due from one state to another." And the representative was informed that his passport was enclosed, for use in case he desired to leave the country (Foreign Relations, 1909, p. 456, passim).

Thereafter Zelaya 's position in Nicaragua became untenable, and he was forced to flee to Europe.

Still more recently, after the Villa raid on Columbus, President Wilson ordered a punitive expedition into Mexican territory to capture the bandit. Upon the protest of Mexico the expedition was withdrawn. (See J. B. Moore: Principles of American Diplomacy, p. 227 f.)

The principle of personal responsibility is recognized by the stipulations of the Versailles Peace Treaty of June 28, 1919, which makes provision for the trial of ex-Emperor William and other German officials accused of responsibility in undertaking the war and of violations of international law in the course of the conduct of military operations (Articles 227-230).


The restraining influence which any punishment will have upon the offender and upon others is one of those psychological factors which defy analysis and, in the absence of an international code, there is no measure of the degree of punishment which is reasonable to effect the object in view. Whenever public opinion is aroused over some flagrant transgression, the popular demand for revenge or satisfaction influences responsible statesmen to seek a punishment in excess of that which would be necessary to prevent a repetition of the offense. Because of this lack of regulation in international affairs, the Law of the Talion, or retaliation, is widely applied. The fear of redress or reprisals is ever present to those who conduct international affairs, although it is difficult to estimate the importance of this influence in any particular instance. But as this relates more to means and methods we cannot discuss it here.

In international, as in national affairs, there are certain minor offenses for which it is difficult to impose a sufficiently severe restraining punishment without making the penalty out of all proportion to the offense. In such cases, it is essential to take action by way of anticipation to prevent the commission of the injury, or quickly to compel the offender to desist. Action taken for such a purpose is more in the nature of police administration or international police patrol.


1 It is important to use the term "interposition" in the sense of intervention to secure redress for the failure to recognize the international law rights of the intervening state and those for the protection of whose interests it is responsible - generally its nationals. This use is sanctioned by present practice. Formerly it was customary to use "diplomatic intervention". "Interposition" is also currently used for intervention or interference between two states or factions in conflict. This use leads to confusion, and should be avoided.

2 Hall has noted this balance between territorial sovereignty and the right of other states to protect their nationals. (W. E. Hall: Foreign Jurisdiction of the British Crown, § 5, p. 4.)

3"The right of the government to intervene [interpose] for the protection of its citizens in foreign lands and on the high seas never was doubted; nor was such action withheld in proper cases." (J. B. Moore: American Diplomacy (1905) 131). This eminent authority has always regarded the protection of nationals as a right of the citizen which the government is obligated to undertake in so far as the superior interests of the nation will allow.

Compare this with Professor Borchard's statement (Diplomatic Protection, p. 13) : "If these rights of an alien are violated without proper redress in the state of residence, his home state is warranted by international law in coming to his assistance and interposing diplomatically in his behalf." (Cf. ibid. 399-400.)

Sir Travers Twiss is still more emphatic and considers that a nation may not forego insistence upon its rights. (Law of Nations, Vol. II, p. 5.) See also remarks of Lord Cromer : Ancient and Modern Imperialism, p. 3-4.

3a Since recourse to self-help is never had except in cases where it is necessary for the preservation of the most important - that is the vital- interests of the state, there is here, as elsewhere, a tendency to confuse the purpose with the means and to speak of the remedial action of self-help as self-preservation or self-defense. Self-help is only one of the methods of employing such means as are found best adapted to secure respect for the rights of the state. In self-defense and for self-preservation, states often have recourse to measures of force by way of self-help.

The term self-help is often used to denote the system of self-enforcement of the law, which is characteristic of international relations. A better term is interposition (see above p. 2).

4 See P. J. Treat: The Early Diplomatic Relations between the United States and Japan; Moore's International Law Digest, vol. V, p. 749-750.

The matter of the obligation of the territorial sovereign to pay for intervention undertaken by way of cooperation to establish order arose also in connection with the intervention of the United States in Cuba, 1906-1909. (See Foreign Relations, 1911, p. 132-135.) The Cuban Government contended that it was not obligated to reimburse the United States for the expense of this undertaking.

5 See Stowell and Munro, vol. I, p. 121-3.

6 The case of the Virginias involved this principle. See Stowell and Munro: International Cases, vol. I, p. 368-371; Westlake: International Law, vol. I, p. 171-3. Cf. Westlake, vol. I, p. 167, for discussion of the nature of jurisdiction on the high sea.

7 This is shown by the following extract from an article by Roy Emerson Curtis on "The law of hostile military expeditions as applied by the United States" (American Journal of International Law, April, 1914, p. 225-6):

"The Government of the United States has been accustomed to cooperate with foreign governments in the matter of the investigation of possible violations of the law, and occasionally it has supplied information of importance to other states in warding off attacks of expeditions which this government might not be able to repress. In 1884, the Canadian Government sought information from the United States concerning the basis of rumors circulated in the press of this country that a Fenian invasion was in preparation. The authorities investigated and made a report of the situation to the British Minister (MS. Notes to Great Britain, XIX: 438, Moore's Digest, vol. VII, p. 931). The raids of the Garza bandits on the Mexican boundary , and the natural obstacles to preventing them, called forth the suggestion from the Mexican Government that it would be well for the war department of each country to inform the other of what forces it proposed to assign to preserve the peace on its frontiers, and what system it proposed to adopt for the attainment of this end, so that, by both acting in concert, the purpose of both governments might be more easily accomplished. The United States concurred in this suggestion." (Foreign Relations, 1893, p. 442, and p. 446-7.) The United States would not go to the extent of making an "alliance" for such purposes. (Foreign Relations, 1886, p. 57.) For other instances of co-operative action, see Stowell and Munro : International Cases, vol. I, chapters IX, X, XI."

8 For many instances of international combination and treaty stipulations relative thereto, see Annuaire de la Vie Internationale, Brussels, 1908-1909; and Paul S. Reinsch: Public International Unions, 1911.

9George J. Romanes (Animal Intelligence, 4 ed., London, 1886, p. 387-9), relates some remarkable instances where elephants have avenged themselves upon their tormentors after nursing their wrath for a long period. He also gives other instances of vindictiveness in animals. See Romanes's index.

10 In this case, the desire of preserving a good name in the tribe also had a part, and actuated the avengers, but satisfaction would seem to have been the element most difficult to bring into harmony with the requirements of public safety.

11 The Law of the Talion, as set forth in the Mosaic Law and ancient codes, is such a restriction. The codes of the Germanic tribes contain elaborate provisions which served this purpose. Sanctuaries were recognized as affording asylum to fugitives from the wrath of the avenger.

12 "The wars among the Indian tribes arise almost always from individual murders. The killing of a tribesman by the members of another community concerns his whole people. If satisfaction is not promptly made, war follows, as a matter of course. [Bale's note: Relation, of 1636, p. 119. "C'est de la que naissent les guerres, et c'est un sujet plus que suffisant de prendre les armes centre quelque village quand il refuse de satisfaire par les presents ordonnez, pour celuy qui vous aurait tue quelq'un des vostres." (Brebeuf, on the Hurons.)] The founders of the Iroquois commonwealth decreed that wars for this cause should not be allowed to rise between any of their cantons. On this point a special charge was given to the members of the Great Council. They were enjoined (in the figurative language employed throughout the book) not to allow the murder to be discussed in a national assembly, where the exasperation of the young men might lead to mischief, but to reserve it for their own consideration; and they were required as soon as possible to bury all animosities that might arise from it. The figure employed is impressive. They were to uproot a huge pine-tree the well known emblem of their League disclosing a deep cavity, below which an underground stream would be swiftly flowing. Into this current they were to cast the cause of trouble, and then, replacing the tree, hide the mischief forever from their people." (Horatio Hale: The Iroquois Book of Rites, Philadelphia, 1883, p. 68-9.)

13 "At length the pursuit of revenge (Blutrach) is punished by the state, and what was once a sacred duty is thereby transformed into a crime." (Translated from Post: Ethnologische Jurisprudenz, p. 261.)

14 An indication of this is perhaps to be found in the law of libel, according to which the truth of a defamatory statement is no defense in a criminal action. (See "Libel," Encyclopaedia Britannica, 11 ed., vol. 3, p. 537 ; Hugh Fraser: The Law of Libel and Slander, p. 233.) Another indication may well be the old system of trial by compurgators, who swore to their belief in the innocence of the accused. (See Beeves: History of English Law, American edition, 1880, vol. I, p. 205. See also Century Dictionary, under "Compurgator.") In ancient times, the compurgators would evidently bring to the accused something more than a moral support. It was logical in view of this system of compurgators that ancient law should take no account of the casual witness who might have chanced to see the act under consideration.

15 In his electioneering campaign, Lloyd George gained many adherents by promising to bring the Kaiser to trial in London, and to make Germany pay to the last penny. See J. M. Keynes: The Economic Consequences of the Peace, p. 139-145.

16 It is recognized as a device of practical psychology to allow a dangerous individual to enjoy a cheap revenge in order to drain off his venom and prevent some more pernicious manifestation.

17 Among the meanings of rehabilitate, the Century gives: "To reestablish in the esteem of others or in social position lost by disgrace; restore to public respect."

18 In Oriental countries, individual loss of prestige is called losing face, and it is considered a most serious matter, as the following incident from the Life of Tennyson indicates: " ….. The conversation then reverted to China. My father [Lord Tennyson] observed that he thought the Chinese, who live on a very little, could imitate everything, and had no fear of death, would, not long hence, under good leadership be a great power in the world. Lord Napier agreed with him, and said that their contempt of death had on one occasion come painfully home to himself. A whole family had drowned themselves in a well, whether out of pique or fear he did not know, because he himself had refused to accept a dog which he had petted and they had offered to him. 'No incident,' he added, 'ever impressed me with so much horror.' ' Hallam Tennyson : Memoirs of Lord Tennyson, 1898, vol. II, p. 328. Cf . A. H. Smith: Chinese Characteristics, chap. I, "Face.")

19 It is not perhaps the failure to punish the offender which causes the loss of prestige, so much as the belief that the failure to punish indicates a weakness of physical strength or of character. When the capacity to smite is evident, but the blow magnanimously withheld, the effect upon the imagination of the offender may perhaps be greater. President David P. Barrows of the University of California, in his "Decade of American Government in the Philippines," p. xiii, notes that the Philippine Insurrection was brought to an end in the spring and summer of 1901, "when the Filipino 'zone commanders,' who for many months had been exercising practically independent authority in the different provinces of the Archipelago, were captured or forced to surrender. They were all promptly paroled and allowed to return to their homes. Not one of these revolutionary leaders ever broke his parole or took up arms against the United States."

In the course of a discussion which I had with President Barrows, relative to the necessity for the use of force to suppress sedition, he referred to the magnanimous treatment accorded the Filipinos, and thought they were more impressed by the tremendous power of the United States expressed in this way, than they would have been by severe treatment.

20 Extract translated from French Yellow Book, Documents Diplomatiques. Affaires du Haut-nil et du Bahr-el-Ghazan, 1897-8, p. 16; cf. also Parliamentary Papers, 1898, Egypt. [C. 9054] [C. 9055]. Under cover of a general settlement of their frontiers in Northern Africa, France withdrew her claim to Fashoda.

21 Professor T. E. Holland (Jurisprudence, 4th ed., 1888, p. 327-8) makes "Reputation" one of what he calls "antecedent international rights," and says relative thereto, "Of the right to a good name, it has been well said that ' the glory of a nation is intimately connected with its power, of which it is a considerable part. It is this distinction which attracts to it the consideration of other peoples, which makes it respectable in the eyes of its neighbors. A nation the reputation of which is well established, and especially one the glory of which is striking, finds itself sought by all sovereigns. They desire its friendship and fear to offend it. Its friends, and those who wish to become such, favor its enterprises, and its detractors do not venture to show their ill-will."

Sir James Macintosh has well said : "A nation may justly make war for the honor of her flag, or for dominion over a rock, if the one be insulted and the other be unjustly invaded; because acquiescence in the outrage or the wrong may lower her reputation, and thereby lessen her safety." (Macintosh: History of the Revolution of 1688, London, 1834, p. 301.)

22 The estimate of the community in a large number of cases gives the average extent of the retaliation or revenge, which must be inflicted to achieve rehabilitation, but in any particular case, the individual will be guided necessarily by his own subjective view of what is requisite. If he exacts an exaggerated revenge, counter-retaliation and the condemnation of his fellows will act as a check upon similar offenses in the future. Instead of rehabilitation, his excesses will cause him a still further loss of prestige.

23 In those instances where the insulted state is conspicuously superior in strength to the insulter, a failure to exact redress may enhance prestige. This will be the case when, in the opinion of the public, such abnegation takes on the aspect of magnanimity.

24 Creasy gives the following supplementary note:

"The single Greek word Alδώς simply and eloquently expresses all this, and much more.

"In making serious contumely to honor a cause for hostile proceedings, international law follows the Roman civil law, according to which, 'Dignitas quoque hominis in jure consideratur,' and 'Injuria' in the form of contumely is described as 'Injuria non bonis damnum factum intelligitur, sed contra personse dignitatem.' - See Warnkoenig: Institutiones Juris Romani Privati, §§ 126 and 986."

25 The significance of these acts is the ceremonial placing of the offender in the position where he would ultimately be when justly vanquished by the wronged state. The ceremony by expressing this situation proclaims to the world that the result may be considered to have taken place. Both parties thereby save a futile expenditure of blood and treasure.

26 See Buckle's Life of Disraeli, vol. IV, p. 123. John Stuart Mill writes Giuseppe Mazzini, February 21, 1858 (Letters, vol. I, p. 201), " . . .When I began writing to you I thought that this country was meanly allowing itself to be made an appendage to Louis Bonaparte's police for the purpose of hunting down all foreigners (and indeed English too) who have virtue enough to be his avowed enemies. But it appears we are to be spared this ignominy; and such is the state of the world ten years after 1848 that even this must be felt as a great victory."

To Pasquale Villari, March 9, 1858, he writes in similar vein, and says the Palmerston Ministry was overthrown because of its attempt to drag the nation in the mud and make it a branch of the French police (Ibid, vol. I, p. 202-3).

27 Another interesting incident illustrating the procedure in such cases is afforded by the Magee Incident between Great Britain and Guatemala. See E. C. Stowell: The Magee Incident, John Byrne and Co., Washington, 1920.

28 Certain affronts to honor are hard to express in terms of money damages, and in France and Germany it has been customary to settle such matters by duels. But in Anglo-Saxon countries the duel has almost entirely disappeared. French and Germans have been wont to view with contempt what they consider the securing of money damages for injury to a man 's personal honor. They have not taken sufficiently into account that the real punishment lies in the condemnation of society. The newspaper publicity given the trial enhances the punishment for any such offense, and a verdict for money damages gives the official seal of the judiciary as proof of the wrong done. But in the case of a duel, the dormant barbaric instincts of mankind are so aroused by the associations gathering about a personal combat, that the dishonorable and sometimes degraded offense is forgotten and is covered over by the romance and glamor of the social respectability of a duel.

29 Parliamentary papers, 1875, vol. 82 ; also, E. C. Stowell: The Magee Incident, John Byrne and Co., Washington, 1920.

Compare the incident of 1895 between Great Britain and Nicaragua, when a peremptory demand for an indemnity for treatment of British subjects was enforced by the occupation of Corinto. (Foreign Relations, 1895, Part II, p. 1025-1034.)

30 Indemnity is also used to designate the incidental expenses incurred by a state when it is necessary to employ force for defense or for the vindication of its rights. Used in this sense, indemnity corresponds in international relations to the costs awarded in suits at law.

30a In the Delagoa Railway arbitration this question was discussed. See Stowell and Munro: International Cases, vol. I, p. 347 passim.

31 Cf. Moore's Arbitrations, vol. I, p. 624-646. The action of the arbitration tribunal must be considered as a precedent against the award of indirect damages.

32 For a discussion of indemnity, see Borchard: Diplomatic Protection, §§ 175, 176, 177, p. 416, 419.

33 Article 1382 of the French Civil Code declares: "Any act by which a person causes damages to another binds the person by whose fault the damage occurred to repair such damage." (Quoted from E. Blackwood Wright: The French Civil Code, London, 1908, p. 256.)

34 In a letter of October 29, 1870, John Stuart Mill wrote a French correspondent that, in spite of the great sympathy in Great Britain for the misfortunes of France, and the desire that she might come out of them as favorably as the circumstances would allow: "here it is felt that France owes a large reparation to Germany for the great sacrifices of her most precious blood which an unjust aggression have imposed upon her." (Translated from Mill's Letters, vol. II, p. 275.)

In a letter of the previous month (September 30), to Sir Charles Dilke, he condemned the French for "one of the wickedest acts of aggression in history," and considered that the Germans had "a, just claim to as complete a security as any practicable arrangement can give against the repetition of a similar crime," and although he expressed repugnance "to the transfer of a population from one government to another, unless by its own express desire," he wished he could settle the terms of peace so that "the disputed territory [Alsace and Lorraine] should be made into an independent self-governing State, with power to annex itself after a long period (say fifty years) either to France or to Germany; a guarantee for that term of years by the neutral powers (which removes in some measure the objection to indefinite guarantees), or, if that could not be obtained, the fortresses being meanwhile garrisoned by German troops." (Letters of John Stuart Mill, 1910, vol. II : p. 274.)

35 "Where formerly only the accomplished deed was considered, the purpose of punishment is now taken into account. Such purpose is not to inflict a punishment for what has been done, as if in satisfaction of a sentiment of individual or collective vengeance, but to bring about a certain result. The Germans call this aspect of punishment (in contrast to the 'Vergeltungsstrafe,' which in the classic view was a punishment by way of compensation or retribution) the 'Zweckstrafe,' which we can hardly render more closely than by the phrase, 'punishment for a purpose.' Yet the term does scant justice to the important movement inspired by Ihering, and to the significance therein attached to the conception of the final purpose ('Zweck'), the consideration of which was to reanimate the dead bones of the law." (Saleilles: The Individualization of Punishment, [Translation] Boston, 1911, p. 8-9.)

36 An account of the instances in which the United States has considered it necessary to punish less civilized communities for outrages against American citizens will be found in the memoranda prepared by Solicitor J. R. Clark of the Department of State, October 5, 1912, entitled, "Right to Protect Citizens in Foreign Countries by Landing Forces." The incident of the

Falkland Islands in 1831 (see above § 1, and Moore's Digest, vol. V, p. 878 f.) affords an excellent example of a just retribution which was inflicted with the most scrupulous regard to the rights of the government claiming to be sovereign. The firmness and moderation with which the culprits were punished deserves commendation.