In every community whose conduct is in any measure controlled by law - and in the absence of law there can be no community - provision must be made for the effective enforcement of the law. Before the establishment of a special constabulary entrusted with its enforcement, we usually find that every member is expected himself to seek redress for the injuries which he may have received. Sympathy of public opinion is the most that he is entitled to expect from those not immediately concerned, except when some outrageous crime arouses the whole community to action. But even in matters of less serious import, the collective action of the community makes itself felt in the insistence that the parties shall observe the recognized forms of procedure. Such a system of procedure for the enforcement of law is certainly expeditious and inexpensive for the community, but it is apt to leave insufficiently protected matters of general concern, especially in those instances when no one state is sufficiently interested to undertake alone the burden of the enforcement of the law. A still more serious defect of this system is that it leaves the weak without the means to bring the strong transgressor to justice.

In the society of nations there still exists, as we have seen, no organized constabulary, and each nation is expected to take what action it may find justifiable and expedient to secure redress for whatever injury another may have done it. Under present conditions, this procedure has many advantages, and in any event it is the only method practicable until the sovereign states

shall be ready to give up a larger measure of the freedom of their action, and establish a more perfect organization.

In the meantime, international law must depend mainly upon interposition, that is, the action of the separate states to secure redress for their own injuries. Whenever a separate state acts for this purpose, it will also vindicate international law, and help to secure for it the respect it deserves. In practice this system is found to work very well. The explanation is simple - each one of the really independent states has been able to maintain this proud position only by the fact of its ability to interpose effectively to secure redress whenever any of its international rights were injured. In the case of an independent state too weak itself to interpose for the redress of its own injuries, there must have been some powerful and friendly state so interested in the maintenance of the weaker state 's nominal independence as to be ready to cooperate with the latter to help it secure redress. In those other instances of general concern when no state is sufficiently interested to undertake an intervention for the purpose of vindicating international law, or when a friendless injured state is so conspicuously inferior in strength as to make such action impossible, international law recognizes the right and the obligation of all the other states to cooperate to vindicate the law of nations.³ This principle is, however, not so generally recognized as it should be. There are not a few writers of first authority who deny it altogether.⁴ The confusion arises principally, I believe, from the failure to remember that the recognition of the obligation to intervene for the vindication of international law still allows every independent state to exercise its sovereign right of decision as to when and how its obligation shall be fulfilled. In international relations, it is not possible to place upon independent states the same requirement to help in the enforcement of law as we recognize to rest upon each citizen in municipal law.⁵ In our national or municipal law, every citizen is expected to respond to the summons of the sheriff and risk his life in helping to enforce the law. But he has behind him for his protection an organized force able to avenge him if injured, and to punish him if he refuses to comply. Furthermore, the life of one individual is of small moment in the community, provided the correct principles prevail for the guidance of all men. For a nation, the conditions are not comparable. The force on the side of law may temporarily be less than the might arrayed against it, and there is no machinery to compel any state to incur the burden of enforcing the law. Civilization might not be best served if the states which had reached the highest degree of development should lightly risk the fruits of their culture whenever their common law was violated. Even though the other states may be slow to intervene with arms to vindicate the law of nations when their national interests are not sufficiently involved, the transgressor is sure to incur the efficacious penalty of discrimination from other states. Of small effect in each isolated instance, the sum total of all the discriminations of all the states will weigh heavily against the transgressor.

Governments usually go as far in enforcing the law as public opinion will support. It is therefore necessary to educate the public, first, as to the nature of international law, and, second, as to the obligation their state is under to make greater sacrifices to insure its enforcement. Under present conditions the obligation to intervene for the vindication of the law cannot be made absolute, but must be left to the discretion of each state. Reasonable action by way of remonstrance and discrimination will generally be taken in support of the innocent, as opposed to the transgressor. Occasionally a government will go further and intervene by force of arms for the vindication of the law. Such intervention is legal. It is commendable, but it must be confessed that it has generally been actuated by political considerations. The enforcement of the law is, to say the truth, never far removed from politics. Even in our local affairs we are careful to place the enforcement of the law in the hands of political appointees or of officials elected at the polls, and it would not be difficult to furnish a long list of instances where political considerations have prevented the law from being enforced.

In international affairs, the enforcement of law usually waits until some powerful state is sufficiently interested to have it vindicated. But the interests of the great states are now so widespread that it will rarely happen that not one will be found to demand the enforcement of the law; and in this way the motive of self-interest has now become still more potent to keep the actual system working in a manner reasonably satisfactory.

The recognition of the right to employ force to vindicate the law carries with it necessarily a corresponding obligation on the part of all the nations not to interfere with the recognized and orderly procedure for the enforcement of the law. Consequently, any state that has been guilty of a wilful violation of the law of nations in its refusal to make adequate redress has no right to resist such reasonable force as may be necessary to vindicate the law and obtain redress. Although we can hardly expect that a government which refuses to recognize its transgression, and to make amends, will refrain from offering such resistance as it may have in its power, this principle of the illegality of resistance to force lawfully employed for the vindication of international law is incontrovertible.⁶ Vattel well says:

"Defensive war is just when it is carried on against an unjust aggressor. That needs no proof. Self-defense against an unjust attack is not only a right which every nation has, but it is a duty, and one of its most sacred duties. But if the enemy, in carrying on an offensive war, has justice on his side, the nation has no right to resist, and defensive war is then unjust. For the enemy is only acting on his right ; he has taken up arms to obtain justice which was refused him; and it is an act of injustice to resist one who is exercising his right.

"The only thing left to do in such a case is to offer due satisfaction to the invader. If he is unwilling to accept it, the state has the advantage of having won over justice to its side, and it may thenceforth justly resist his attack, which has now become unjust, since the grounds for it are removed." (Vattel: The Law of Nations, Bk. Ill, ch. II, §§ 35, 36, Carnegie Translation, p. 246.)

Intervention for humanity, or humanitarian intervention⁷ as it is more properly called, is also an instance of intervention for the purpose of vindicating the law of nations against outrage. For it is a basic principle of every human society and the law which governs it that no member may persist in conduct which is considered to violate the universally recognized principles of decency and humanity.⁸ In our national law, the offender is arrested and punished for disorderly conduct. In certain associations he would be expelled, but international society cannot so easily be rid of the culprit. It is necessary either to assume the burden of the administration of the territory, or to constrain the unworthy sovereign to mend his ways.

Professor Arntz saw this clearly and recognized as one of two grounds justifying intervention in the internal affairs of another state the situation when its institutions "make impossible the regular coexistence of the states" (Revue internationale, 1876, vol. 8, p. 674). The importance of humanitarian intervention and the inadequate consideration which it has received oblige us to enter into a somewhat full discussion of the principles as indicated by the practice of states.

Humanitarian intervention may be defined as the reliance upon force for the justifiable purpose of protecting the inhabitants of another state from treatment which is so arbitrary and persistently abusive as to exceed the limits of that authority within which the soverign is presumed to act with reason and justice.⁹

Westlake states the basic idea of humanitarian intervention and at the same time refutes the sterile doctrine of absolute non-intervention: "In considering anarchy and misrule as a ground for intervention the view must not be confined to the physical consequences which they may have beyond the limits of the territory in which they rage. Those are often serious enough, such as the frontier raids in which anarchy often boils over, or the piracy that may arise in seas in which an enfeebled government can no longer maintain the rule of law. The moral effect on the neighboring populations is to be taken into the account. Where these include considerable numbers allied by religion, language or race to the populations suffering from misrule, to restrain the former from giving support to the latter in violation of the legal rights of the misruled state may be a task beyond the power of their government, or requiring it to resort to modes of constraint irksome to its subjects, and not necessary for their good order if they were not excited by the spectacle of miseries which they must feel acutely. It is idle to argue in such a case that the duty of the neighboring peoples is to look on quietly. Laws are made for men and not creatures of the imagination, and they must not create or tolerate for them situations which are beyond the endurance, we will not say of average human nature, since laws may fairly expect to raise the standard by their operation, but of the best human nature that at the time and place they can hope to meet with." (Westlake: International Law, vol. I, p. 319-320.)

President Roosevelt in 1904 wrote: "Brutal wrong-doing, or impotence, which results in the general loosening of the ties of civilized society may finally require intervention by some civilized nation, and in the Western Hemisphere the United States cannot ignore its duty." (J. B. Moore: Principles of American Diplomacy, p. 262; cf. similar statement in Roosevelt's Annual Message, December 6, 1904.)

Similarly, that great political thinker, Captain Maban, referring to the parable in the Bible, wrote: "that the possession of power is a talent committed in trust, for which account will be exacted; and that, under some circumstances, an obligation to repress evil external to its borders rests upon a nation, as surely as responsibility for the slums rests upon the rich quarters of a city." (Mahan: Some Neglected Aspects of War, 1900, p. 107.)

The legality of humanitarian intervention has the support of many authorities. The author of the Vindicae Contra Tyrannos, published in 1579 at the time of the religious wars in France, justifies interference "in behalf of neighboring peoples who are oppressed on account of adherence to the true religion or by any obvious tyranny" (W. A. Dunning: Political Theories from Luther to Montesquieu, p. 55). Since that time, a host of authorities have incidentally touched upon humanitarian intervention and recorded their approval of it. Only one of these, as far as I am aware, has made a thorough study of this important institution.¹⁰ The list of the authorities who recognize the legality of humanitarian intervention includes: Grotius, Wheaton, Heiberg, Woolsey, Bluntschli, Westlake, and many others.¹¹

In 1625 Hugo Grotius wrote: "There is also another question, whether a war for the subjects of another be just, for the purpose of defending them from injuries inflicted by their ruler. Certainly it is undoubted that ever since civil societies were formed, the rulers of each claimed some especial right over his own subjects. Euripides makes his characters say that they are sufficient to right wrongs in their own city. And Thucydides puts among the marks of empire, the supreme authority in judicial proceedings. And so Virgil, Ovid, and Euripides in the Hippolytus. This is, as Ambrose says, that peoples may not run into wars by usurping the care for those who do not belong to them. The Corinthians in Thucydides say that it is right that each

state should punish its own subjects. And Perseus says that he will not plead in defense of what he did against the Dolopians, since they were under his authority and he had acted upon his right. But all this applies when the subjects have really violated their duty ; and we may add, when the case is doubtful. For that distribution of power was introduced for that case.

"But the case is different if the wrong be manifest. If a tyrant like Busiris, Phalaris, Diomede of Thrace, practises atrocities towards his subjects, which no just man can approve, the right of human social connection is not cut off in such a case. So Constantine took arms against Maxentius and Licinius; and several of the Roman emperors took or threatened to take arms against the Persians, except they prevented the Christians being persecuted on account of their religion. (Grotius: De Jure Belli et Pacis, Bk. II, chap. XXV, VIII, §§ 1, 2, Whewell's Translation, Vol. II: p. 438-440).

In a recent work by Professor Edwin M. Borchard, we find a clear and emphatic statement. Referring to the minimum of rights which individuals enjoy under international law, this author remarks: "This view, it would seem, is confirmed by the fact that where a state under exceptional circumstances disregards certain rights of its own citizens, over whom presumably it has absolute sovereignty, the other states of the family of nations are authorized by international law to intervene on the grounds of humanity. When these 'human' rights are habitually violated, one or more states may intervene in the name of the society of nations and may take such measures as to substitute at least temporarily, if not permanently, its own sovereignty for that of

the state thus controlled." (Edwin M. Borchard: The Diplomatic Protection of Citizens Abroad, New York, 1915, p. 14.)

After the reader has examined the instances which we shall present, he can hardly fail to agree with the conclusion of Professor Theodore S. Woolsey, who studied this question in relation to the intervention of the United States in Cuba. Mr. Woolsey writes: ' * That intervention on the ground of humanity is justifiable is a matter of precedent, then, as well as a theory. And so far as facts go, our action in behalf of Cuba is as fair an instance of it as any of the earlier examples." (Theodore S. Woolsey: American Foreign Policy, New York, 1898, p. 75-6.)

Certain other publicists have, it is true, looked askance at humanitarian intervention, and even gone so far as to deny its legality.¹² Starting from the premise of the independence of states, they fear to recognize the right of another state to step in as a policeman, even though a neighbor state should treat its nationals in a barbarous manner. Instead, they would proclaim as sacred and inviolable the right of every state to regulate its internal affairs and then condone as

excusable violations of the law such corrective intervention as another state, urged on by public opinion, might undertake.¹³

But why, we may ask, should the independence of a state be more sacred than the law which gives it that independence? Why adopt a system which makes it necessary to gloss over constant violations of the very principles which are declared to be most worthy of respect from all? If, where such intolerable abuses do occur, it be excusable to violate at one and the same time the independence of a neighbor and the law of nations, can such a precedent of disrespect for law prove less dangerous to international security than the recognition of the right, when circumstances justify, to ignore that independence which is the ordinary rule of state life? In any event, we find support for the view we hold from the weighty authorities to whom we have referred, and we may feel still more certain of our ground after we have examined the various instances in which the powers have intervened to prevent a neighbor from continuing to commit such abuses as constituted a violation of the universally recognized and generally respected rules of decent state conduct. And when so acting, the intervening states have proclaimed the legality of their course.

States have most frequently undertaken intervention wholly or partially on the ground of humanity in some one of the circumstances which we shall now pass in review.¹⁴

Governmental persecution may be sufficiently gross to amount to inhumane conduct. Particularly frequent have been the instances of intolerance, that is, the denial to large numbers of persons of the liberty to profess their religion.

The French occupation of Syria from August, 1860, to June, 1861, was an incident typical of humanitarian intervention to prevent religious persecution. The Druses, in May, 1860, had massacred some six thousand Christian Maronites without any efforts on the part of the Porte to fulfil its obligations to protect the victims. Further massacres ensued shortly after, and stirred the sympathy of Europe. It was felt that the obligation of intervening could not b<j avoided, and on August 3, 1860, the ambassadors of the five great powers and Turkey signed at the Quai D'Orsay a protocol (agreement) for the dispatch of troops to Syria and the policing of the coast of Syria by the warships of the signatory powers. In its form the agreement provided for cooperation with Turkey because certain powers wished to sustain in every way the rights of Turkish sovereignty. For the same reason, care was taken in the agreement to preserve the collective character of the action, although in fact France supplied the 6000 troops necessary, and was the power most active in insisting that action be taken to succor the victims of Mohammedan fanaticism. The fear that France might take advantage of her intervention to secure special advantages was met by the adoption of a protocol of the same date (August 3) by which the representatives of the powers declared the disinterestedness of their governments and their intention not to seek "any territorial advantage, any exclusive influence, or any commercial concession for their subjects which might not be granted to the subjects of all the other nations. "Another safeguard was the limitation of the period of occupation to six months. At that time, the British Government was particularly suspicious of the designs of Napoleon III and very anxious to get the French out of Syria as soon as possible. To the objection that there was danger of further outrages, the British Ambassador replied that the presence of foreign vessels would exercise a sufficient moral influence to restrain the evil passions of the inhabitants of the Lebanon, and that in any event, nothing could be easier than to land a part of their crew, if necessary. (Cf. Protocol of February 19, 1861, LeClerq: Traités de la France, vol. 8, p. 172.) But the Russian Ambassador did not feel that this measure would suffice, and thought it necessary to prolong the occupation. At a later conference of the representatives of the five powers, held March 15, 1861, the Russian Ambassador supported the French proposal to prolong the occupation for three months. "This, in his opinion, was a measure which would allow the great powers to respond to the urgent appeal made to them on the ground of humanity and at the same time to protect the general interests of Europe and of Turkey." The proposal was adopted and at the expiration of the period agreed upon the French withdrew, and on June 9, at Constantinople, the representatives of the powers agreed to the regulations for the administration of the Lebanon.¹⁵

Although the Sultan gave his official consent to this occupation, it was none the less a measure to which he only consented through constraint and a desire to avoid worse. It is therefore an instance of intervention, and one in which the states were actuated by motives of humanity to prevent religious persecutions which took the form of massacres of the Christian Maronites.

Moser (J. J. Moser: Versucht der neuesten europaischen Volkerrechts, 1778, part 6, chap. 6, p. 96-7) gives as an illustration of intercession an instance in which the representations addressed by the British and Netherlands Governments to Maria Theresa were so vigorous as to exceed mere intercession and to border on intervention in favor of the Jews of Prague. Moser reproduces Lord Harrington's instructions of March 5, 1745, to the British Minister at Vienna in which he directed him to continue to make the strongest efforts to prevail upon the Queen to revoke the decree expelling the Jews from Prague. The dispatch alludes to the representations made by the Dutch Government relative to the same matter. (Moser quotes from Mercure, 1747, vol. I, p. 363.)

In recent times, the oppression of the Jews and the many instances of outrage which they have been made to suffer afford the best example of intolerance. The persecution of the Roumanian Jews has elicited a series of remarkable interventions. In 1867, when certain Jews in Boumania were made the victims of outrages, Lord Stanley in his dispatch of June 14 to the British representative instructed him: "Her Majesty's Government trust that your expectations may be realized, but you will not relax your exertions to induce the Wallachina Government to protect the Jews from persecution, whatever shape it may assume, or whatever pretence may be alleged for it. You will call special attention to the observation of the Prefect of Jassy, that he must obey the orders of the Minister of the Interior, unless overriden by orders from Bucharest, and you will urge the issue of direct orders, such as will admit of no excuse if they are disregarded. You will press on the Prince that the attention of Europe is directed to the cruelties practised on the poorer Jews in Moldavia, and that the impression on foreign governments will be mostunfavorable if effectual measures are not taken to put an end to them, whether they originate in arbitrary acts on the part of local authorities, or in the uncontrolled license of the Christian population of the province." (Parliamentary Papers, 1867, vol. 74 [3890].)

From Paris, the French Consulate at Jassy had received the following telegram of instructions: "The persecutions begun against the Jews at Jassy cause here a just and general indignation. Take prompt and energetic steps to put a stop to an iniquity which is a dishonor to the Roumanian Government." (Ibid.) The Israelite Community at Jassy, on June 16, made the following report of conditions: "The persecutions continue, though they make less noise. Commercial Jews traveling with passports not in order are thrown into chains. They seize upon individuals everywhere they find them, always under the excuse of their being vagrants.

"The people continue their hostile and menacing meetings; and if the process of the projected extirpation of the Jews is no longer done so openly, thanks to the intervention of the High Powers, it nevertheless is continued more quietly by the authorities, who deem the will of the Minister to be higher than the law.

"Bratiano has planned the destruction of our race in this country." (Ibid.)

Under the date of April 10, 1872, Secretary of State Fish instructed Mr. Peixotto, the American Consul at Bucharest:

"This government heartily sympathizes with the popular instinct upon the subject, and while it has no disposition or intention to give offense by impertinently interfering in the internal affairs of Romania, it is deemed to be due to humanity to remonstrate against any license or impunity which may have attended the outrages in that country. You are consequently authorized to address a note to the minister of foreign affairs of the Principalities, in which you will embody the views herein expressed, and you will also do anything which you discreetly can, with a reasonable prospect of success, toward preventing a recurrence or continuance of the persecution adverted to." (Moore's Digest, Vol. VI, p. 360; Foreign Relations, 1872, p. 688.)

A month later (May 13, 1872), Mr. Fish approved the action of Mr. Peixotto in joining in a remonstrance addressed by the representatives of the foreign powers at Bucharest to the representative of the Principalities against the recent maltreatment of Israelites. The dispatch in part read: "The Department approves your taking part in that remonstrance. Whatever caution and reserve may usually characterize the policy of this government in such matters may be regarded as inexpedient when every guarantee and consideration of justice appear to have been set at defiance in the course pursued with reference to the unfortunate people referred to. You will not be backward in joining any similar protest, or other measure which the foreign representatives there may deem advisable, with a view to avert or mitigate further harshness toward the Israelites residents in, or subjects of, the Principalities." The remonstrance was signed by the representatives of Austria-Hungary, France, Germany, Great Britain, Greece, Italy, and the United States. (Moore's Digest, vol. VI, p. 360; Foreign Relations, 1872, p. 691.)

In 1902, Secretary Hay called the attention of the powers to Romania's violation of the Treaty of Berlin and her unjustifiable oppression of the Jews. In this instance, the American Secretary of State alluded, it is true, to the interests of his government on the ground that Romania's action in driving to our shores a horde of miserably equipped immigrants placed a burden upon this country, but this alleged ground of action was somewhat far-fetched, since the United States could easily have overcome this inconvenience by passing legislation to exclude destitute immigrants. As the correspondence indicates, Secretary Hay's intention was to demand justice for the oppressed Jews in conformity with the principles of international law and the dictates of humanity. This action was taken, as he said in his dispatch of August 11, 1902, to Mr. MeCormick, "not alone because it [the United States] has unimpeachable ground to remonstrate against the resulting injury to itself, but in the name of humanity" (Foreign Relations 1902, p. 45; cf. p. 42-5). The context shows that this latter was the real ground of the protest which the American representative was instructed to present to Romania. A peculiar force was given to this action through its communication to the principal European powers. The answer from the British Government, dated September 2, 1902,contained the following promise of action: "His Majesty's Government will place themselves in communication with the other powers signatory of the treaty of Berlin, with a view to a joint representation to the Romanian Government on the subject."¹⁶ (Foreign Relations 1902, p. 550). But the other powers seem to have done no more than to acknowledge receipt of the communication and to give it, as the German Minister said, "such consideration as its importance deserves." (Foreign Relations, 1902, p. 442; cf. pp. 420, 684, 910-15, 936, 1048.)

In Russia also, the Jews have frequently been subjected to outrages from the populace. Horrible riots, or pogroms, occurred after the assassination of Alexander II, due to the belief of the masses that the Jews were largely responsible for the crime. (See Foreign Relations, 1882, p. 446-452). By their government, too, these unfortunate people were also subjected to many vexatious and discriminatory regulations which interfered with their freedom of travel and with the choice of the occupations in which they might engage. (See Andrew D. White 's report, Foreign Relations, 1894, p. 525-35.)

Deeply stirred by these barbarous and arbitrary acts, the United States intervened¹⁷ diplomatically to the extent of making representations against the treatment of the Jews, and attempted to use its diplomatic influence in favor of toleration (Foreign Relations, 1880, p. 873; 1882, p. 451), but this action was at first carefully limited. When Secretary of State Evarts was requested by Hebrews in the United States "to make such representations to the Tsar's Government, in the interest of religious freedom and suffering humanity, as will best accord with the most emphasized liberal sentiments of the American people," he instructed Mr. Foster, the American Minister:

"You are sufficiently well informed of the liberal sentiments of this government to perceive that whenever any pertinent occasion may arise its attitude must always be in complete harmony with the principle of extending all the rights and privileges, without distinction on account of creed, and cannot fail, therefore, to conduct any affair of business or negotiation with the government to which you are accredited, which may involve any expression of the views of this government on the subject, in a manner which will subserve the interests of religious freedom. It would, of course, be inadmissible for the government of the United States to approach the Government of Russia in criticism of its laws and regulations, except so far as such

laws and regulations may injuriously affect citizens of this country, in violation of natural rights, treaty obligations, or the provisions of international law, but it is desired that the attitude of the minister, as regards questions of diplomatic controversy, which involve an expression of view on this subject, may be wholly consistent with the theory on which this government was founded." (Foreign Relations, 1880, p. 873.)

But the United States approached the matter more vigorously from another direction, that is, through interposition to secure for American Jews established in Russia or Jews of Russian origin returning thither after naturalization the same treatment as other Americans would receive.¹⁸ The result of acquiescence in this demand would have been to accord foreign Jews in Russia a treatment better than that received by Russian Jews, and would have made it very difficult to persist in the severe discriminations against the Jews. In the form of a reasonable request that all American citizens be treated with equal regard, it was really an insistence upon a favored treatment for certain classes of Americans in Russia. The serious purpose of the American Government to force this issue was shown by a strong appeal in 1881 to the British Government for cooperative action upon the ground that aliens in Russia were "brought under the harsh yoke of bigotry or prejudice which bows the necks of the natives, " and that "enlightened appeals were disregarded and were met with intimations of a purpose still further to burden the unhappy sufferers, and so to necessarily increase the disability of foreigners of like creed resorting to Russia." Secretary Elaine considered that it became "in a high sense a moral duty to our own citizens and to the doctrines of religious freedom we so strongly uphold to seek proper protection for those citizens and tolerance for their creed in foreign lands, even at the risk of criticism of the municipal laws of other states." Accordingly he instructed Mr. Lowell, our Minister at London, to "approach the British Government in the direction of urging similar or concerted representations with the United States in behalf of the amelioration of the condition of the Jews in Russia," and the American Charge at St. Petersburg was similarly instructed freely to acquaint the British Ambassador with what was being done. (Secretary Blaine to Mr. Lowell, Nov. 22, 1881; to Charge Hoffman, Nov. 23, 1881, manuscript instructions quoted in Moore's Digest, Vol. VI, p. 352-3.)

However great the sympathy of the British Government may have been with the purpose of the action, the delicacy of the relations of the European powers doubtless made such cooperation impossible, and the British Government declined to ask an equal treatment for all British subjects. The serious objection of Russia to any move in the nature of that suggested by the American Government was shown by a note published in the Agence Generate Russe, objecting to collective action.

Basing its action on still another ground, the Government of the United States complained to the Russian Government of its harsh treatment of the Jews, which forced them to immigrate in large numbers to this country. In his instructions to the American Minister, February 18, 1891, Secretary of State James G. Elaine spoke of the action taken by the Russian Government as a step which "would not only wound the universal and innate sentiment of humanity, but would suggest the difficult problem of affording an immediate asylum to a million or more of exiles without seriously deranging the conditions of labor and of social organization in other communities." Mr. Elaine observes: "The Government of the United States does not assume to dictate the internal policy of other nations, or to make suggestions as to what their municipal laws should be or as to the manner in which they should be administered. Nevertheless, the mutual duties of nations require that each should use its power with a due regard for the results which its exercise produces on the rest of the world." (Foreign Relations, 1891, p. 737-9; cf. Ibid, 1894, p. 534.) The American representative was directed to read this instruction to the Russian Minister of Foreign Affairs. President Harrison, in his annual message, December 9, 1891, said: "This government has found occasion to express in a friendly spirit, but with much earnestness,¹⁹ to the government of the Tsar, its serious concern because of the harsh measures now being enforced against the Hebrews in Russia." Referring to the effect of these measures to drive them to America, the President continued: "The banishment, whether by direct decree or by not less certain indirect methods, of so large a number of men and women is not a local question. A decree to leave one country is, in the nature of things, an order to enter another some other. This consideration, as well as the suggestions of humanity, furnishes ample ground for the remonstrances which we have presented to Russia, while our historic friendship for that government cannot fail to give assurance that our representations are those of a sincere well-wisher." (Foreign Relations, 1891, p. XIII.) Notwithstanding the effort to make it appear that the United States was justified in protesting because of the injury which Russian persecutions caused this country, the humanitarian purpose shows through the disguise which was adopted, either for the purpose of sparing Russia's feelings, or because of the prevailing prejudice against any intervention in the internal affairs of a neighboring state. In the very protest, it was stated that other countries have closed their doors to this Jewish immigration (President Harrison's Message, Dec. 9, 1891, Foreign Relations, 1891, p. XII, cf. 745), and the United States could have adopted a similar policy had this apprehension really been the principal motive of the protests. That the real motive was humanitarian intervention is indicated in Secretary of State Frelinghuysen 's instruction of April 15, 1882, to Mr. Hoffman:

"The prejudice of race and creed having in our day given way to the claims of our common humanity, the people of the United States have heard, with great regret, the stories of the sufferings of the Jews in Russia. It may be that the accounts in the newspapers are exaggerated, and the same may be true of some private reports. Making, however, due allowance for misrepresentations, it can scarcely be doubted that much has been done which a humane and just person must condemn.

"The President, of course, feels that the government of the Emperor should not be held morally responsible for acts which it considers wrong, but which it may be powerless to prevent.

"If that be true of this case, it would be worse than useless for me to direct you, as the representative of the United States, to give official expression to the feeling which this treatment of the Jews calls forth in this country. Should, however, the attitude of the Russian Government be different, and should you be of the opinion that a more vigorous effort might be put forth for the prevention of this great wrong, you will, if a favorable opportunity offers, state, with all proper deference, that the feeling of friendship which the United States entertains for Russia prompts this government to express the hope that the Imperial Government will find means to cause the persecution of these unfortunate fellow-beings to cease.

"This instruction devolves a delicate duty upon you, and a wide discretion is given you in its execution. However much this Republic may disapprove of affairs in other nationalities, it does not conceive that it is its right or province officiously and offensively to intermeddle. If, however, it should come to your knowledge that any citizens of the United States are made victims of the persecution, you will feel it your duty to omit no effort to protect them and to report such cases to this Department." (Foreign Relations, 1882, p. 451.)

After the great exodus of Jews from Russia to the United States, it was natural that the sympathy for the hard lot of the Russian Jews should have been deepened, and the urgent earnestness of the protests increased. The most notable instance was President Roosevelt's unofficial action relative to the Kishenef Massacres (1903).²⁰ From Thayer's Life of Roosevelt, we take the following account:

"Russian mobs ran amuck and massacred many Jews in the city of Kishenef . The news of this atrocity reached the outside world slowly: when it came, the Jews of Western Europe, and especially those of the United States, cried out in horror, held meetings, drew up protests, and framed petitions asking the Tsar to punish the criminals. Leading American Jews besought Roosevelt to plead their cause before the Tsar. As it was well known that the Tsar would refuse to receive such petitions, and would regard himself as insulted by whatever nation should lay them before him by official diplomatic means, the world wondered what Roosevelt would do. He took one of his short cuts, and chose a way which everybody saw was most obvious and most simple, as soon as he had chosen it. He sent the petitions to our Ambassador at Petrograd, accompanying them with a letter which recited the atrocities and grievances. In this letter, which was handed to the Russian Secretary of State, our government asked whether His Majesty the Tsar would condescend to receive the petitions. Of course, the reply was, no, but the letter was published in all countries, so that the Tsar also knew of the petitions, and of the horrors which called them out. In this fashion, the former ranchman and Rough Rider outwitted, by what I may call his straightforward guile, the crafty diplomats of the Romanoffs." (William Roscoe Thayer: Theodore Roosevelt, (1919), p. 229-230.)

Finally, public opinion in America became thoroughly aroused, and on December 17, 1911, the American Ambassador officially notified the Russian Government of the termination of the treaty of 1832. In a previous interview with Mr. Sazanoff, the American Ambassador explained the American viewpoint in regard to the contemplated abrogation of the treaty, and said that the action of the House of Representatives "was unquestionably influenced by a sincere conviction that such action might have far-reaching results in inducing Russia to abandon not only restriction of foreign Jews, but restriction of her own Jews, ..." (Foreign Relations, 1911, p. 695-9.)

When the Russian Minister received the notice of the termination of the treaty, he expressed "emphatically his surprise at the action of the Government of the United States, which he regarded as most unfriendly" (ibid, p. 698), and he refused to permit the Ambassador "even to explain in full" (ibid, p. 699) Secretary Knox's suggestion in regard to the public announcement to be made of the action taken; and thus did the Government of the United States, in the presence of all the world, mark its disapproval of Russia's inhumane treatment of an unprotected people.²¹

An interesting case of humanitarian intervention to protect the Jews of Frankfort from the abusive exactions of the Prussians in 1866 is referred to in the Memoirs of Sir Robert Morier, from which we quote the following :

"Morier took up his new post at Frankfort the day before the Diet left that Imperial City

never to return. Though there for a short time only, it proved long enough for him to be able to join in taking steps to stop the Prussians levying blackmail on the Jews of that city, Frankfort having been treated with an untold degree of harshness, with a view of terrifying the other free cities of Germany into acquiescence in the conditions of the new [North German] Constitution. These measures were unimportant enough in themselves, but sufficiently delicate to earn for him the public, as well as private approval of Lord Stanley, who had become Foreign Secretary on the fall of the Russell Cabinet in July." (Memoirs of Sir Robert Morier, Vol. II, p. 84.)

Turkey's persecutions of the Armenians have added another instance in which the United States has felt constrained by the obligations of a common humanity to intervene diplomatically. This action is of especial interest since it took place at a critical moment of the war, when American intervention might well have had the most serious consequences for the Turkish Government and those responsible for the frightful horrors perpetrated upon the defenseless Armenians. the New York Evening Post, October 5, 1915, prints the following report from Washington: "The Turkish Government will be formally notified that unless the massacre of Armenians ceases, friendly relations between the American people and the people of Turkey will be threatened. Instructions to that effect had gone today to Ambassador Morgenthau at Constantinople for presentation to the Foreign Office. Officials here made it plain, however, that the message did not threaten a rapture in the diplomatic relations between the two countries.

"The Ambassador's instructions are merely to inform Turkey that the American people already are so stirred by the reported massacres that a continuance of the atrocities might result in a break in the friendly relations between the two peoples.

"It was explained at the State Department that the instructions to Ambassador Morgenthau direct him to offer his good offices in behalf of the Armenians, and to state to the Turkish Government that reports of atrocities upon Armenians are causing unfriendly criticism among the people of the United States."

The Council of the League of Nations has recently invited the United States to accept a mandate for the supervision of Armenia.²²

We might also class as instances of religious persecution the severities to which the Greeks were subjeced before the intervention of the powers brought them freedom (1827), and the Bulgarian atrocities (1876), which were the immediate cause and a sufficient justification of Russia's intervention. But other motives than religious persecution seem more justly entitled to claim the honor of having actuated these interventions. We cannot pass over without remark the religious persecutions of the Reformation, and the many interventions to which religious sympathies gave rise, but it is difficult to consider them as true instances of humanitarian intervention to prevent unusual persecution, for such persecutions seem at that period to have been the rule rather than the exception. We ought therefore to compare them with those modern interventions of the Holy Alliance to support Legitimacy, and the interventions of the Wilson administration to support constitutional Government, which is equivalent to saying that they are not interventions at all, but interferences of a political complexion for the extension of certain opinions, to be justified, if at all, by the circumstances in each case and the results achieved.

Sir Frederick St. John, in his Reminiscences of a Retired Diplomat (p. 16-17), gives the following account of the action which the British Mission in Tuscany about 1855 took to prevent the religious persecution of the Protestants. It serves also to illustrate the care that was taken to give an aspect of friendly intercession to what was substantially intervention:

"My office of private secretary relieved me from the routine duties in the chancery, and my occupations were chiefly of a social character, such as those above described; but I was occasionally employed in more serious matters, such as contributing to the relief of victims of the religious persecution which was then [about 1855] so rampant in Tuscany. The method employed was the following: Instances of imprisonment of persons discovered to have attended Bible meetings, at that time held in all parts of the grand duchy, were verbally reported to me by the members of the central committee of proselytes, with every detail as to name, date and locality; this was for the information of my chief, who thereupon would call on the Tuscan minister whom it concerned, and adjure him for the sake of Tuscany 's good name to order the liberation of the prisoners, before the foreign press could get wind of the occurrence and publish it to the world. I cannot now recall a single case of failure ; and I attribute the great success of Lord Normanby in this matter to his unequalled prestige in the country of his adoption as a residence, as well as to his great intimacy with the Grand Duke - who, with all his bigotry, was known for his kind heart and dread of giving any cause for scandal. I must mention that such was the fear of detection, that, although I received weekly visits from members of the proselyte and proselytising brotherhood during my three years of service as a medium of communication, I was never visited twice by the same individual; while several times I was approached by persons whom I had known by sight, but had never suspected of Protestant proclivities." ( Sir Frederick St. John : Reminiscences of a Retired Diplomat, London, 1905, p. 16-17.)

The cruel and unnecessary suppression of the national institutions and aspirations of a subject people is an abuse of power which shocks the civilized world in every fibre. The indignation of public opinion spurs on to action governments even which are sluggish and without ambitions. This reluctance is sometimes due to the fear that intervention in defense of the rights of nationality or self-determination may be turned against them to encourage portions of their own empires to seek an inconveniently great degree of independence of status. It is natural, therefore, that governments should prefer to urge other grounds to justify the humanitarian intervention which they have undertaken.²³

Formerly, religious sentiment was closely connected with the racial characteristics and the nationalistic aspirations of a people. In consequence, political oppression and attempts to assimilate or suppress alien races generally took the form of religious persecution.²⁴

In truth, persistent religious persecution has survived only in those countries like Turkey or Russia that regard those who profess another faith in the light of aliens. In the nineteenth century, the great growth of national states and the keen rivalries of great powers led certain of the less developed and more reactionary powers like Russia and Prussia to attempt the complete absorption of the peoples or nations under their jurisdiction. A similar desire to preserve her influence led Austria to block the efforts of the people of the small Italian states to achieve their national unity. These various attempts at the suppression of the nationalistic aspirations of a subject people have shocked the moral sense of Europe. If on the one hand international law cannot be said to have recognized the right of a people who possess distinct national characteristics to be independent, or even to be granted an autonomous regime, on the other hand it may be said that international law does not allow these aspirations to be suppressed with unrestricted severity.

Whatever justification can be found for the interference of the American Government in the Irish troubles of 1848 must rest upon the right of self-determination. Under date of September 4, 1848, Mr. Isaac Toucey, Secretary of State ad interim, sent Minister Bancroft the following instructions: "It is the wish of the President and, he instructs you to urge upon the British Government the adoption of a magnanimous and merciful course towards those men who have been implicated in the late disturbances in Ireland." (Executive Document No. 19, 30 Congress, Bancroft Collection, New York Public Library, Vol. 33, p. 242.)

In America also an active propaganda - meetings, collection of funds, and fitting out of the agitators - was carried on without any repression from the governmental authorities, to the great irritation of the British Government, which proceeded to employ measures of reprisal against Americans traveling in Ireland. Several Americans were imprisoned and searched under secret orders which were not disclosed. This action was taken apparently by way of retaliation against Americans. (Cf. Bancroft Collection of Documents on Foreign Relations, New York Public Library, vol. 33; cf. also Parliamentary Papers, 1852, vol. 54, Buol to Palmerston, - refers to this discrimination against the United States.)

The motive of the interference of France and Great Britain in the affairs of Naples, 1857, was the protection of the political agitators who were striving for Italian national unity and freedom from Austrian tutelage.^24b

In 1863, Great Britain, France, and Austria made concurrent representations or protests to Russia in regard to her oppressive treatment of her Polish subjects. The intricate nature of the prolonged negotiations complicated by the divergencies of view between the separate powers cannot unfortunately be fully considered within the limits of the space at our disposal and we must refer the reader to the sources we have examined for the verification and amplification of our statements.²⁵

Alexander I of Russia at the Congress of Vienna planned to reconstitute the Kingdom of Poland under his own suzerainty, but England objected because she feared the preponderance of Russia on the Continent.²⁶

At the same time English public opinion wished to secure for the Poles some adequate guarantee for the preservation of their national institutions. It was eventually agreed to include in the Final Act articles in which Russia, Prussia, and Austria made certain promises in regard to the treatment of their annexed Polish possessions.²⁷

The Russian Tsar in fulfilment of his promise granted the Poles a constitution, but in 1830 when the French Revolution shook Europe, the Poles rose in insurrection and demanded their independence. The uprising was suppressed and the constitution abolished. Lord Palmerston, then Secretary for Foreign Affairs, was supported by the Government of Louis Philippe in interceding for the Poles and in registering a mild protest.²⁸

In the early (eighteen) sixties the Polish question again became acute, and the Russian Government attempted to anticipate the coming revolt by drafting the Polish leaders into the army in violation of the constitution of 1861 which the Russian Government had granted the Poles.²⁹ This arbitrary act infuriated the Poles and incited all who were able to escape to engage in an internecine war for Polish independence.

Liberal Europe was aroused and the pressure of public opinion as well as other political considerations induced the Liberal Powers to enter a vigorous protest against the Russian measures of repression. France and Great Britain were later joined by Austria. The latter had little sympathy for the grounds upon which the western powers based their intervention but she feared the growing intimacy of Russia and Prussia and wished to avoid a dangerous isolation in which she would find no counterbalancing support. Austria had another motive. She was also glad to purchase immunity from agitating her own Poles by the more liberal policy which she adopted in her treatment of them.³⁰

Without entering any further into the interesting details of this important instance of humanitarian intervention, undertaken for the purpose of preventing the oppression of the Poles, we may now consider what the evidence is to show that this was a veritable instance of intervention, in which the protesting powers indicated by their acts their evident expectation of constraining Russia to modify her treatment of the Poles. That the action of France, England, and Austria was an instance of intervention relying upon the armed force of the cooperating states and not a mere intercession such as occurred in 1832 is shown by the following circumstances: In the first place the language employed in the notes, especially the official statements of the British Secretary for Foreign Affairs, was so minatory as to seem a presage of war in the event the Russian government should not yield.³¹

In the second place the efforts made to organize a collective action on the part of the cooperating powers when Russia had disregarded the first separate representations of France and Great Britain affords still stronger evidence that there was a serious intention to constrain Russia to heed the representations addressed to her.

Any implication of menace, which the statements relative to Poland might contain, would naturally be greatly increased by giving them the collective support of several powers. England, France and Austria reached an agreement to present their respective notes of protest to the Russian Government upon the same date.³²

This concurrent action lacked, it is true, some of the force which it would have possessed if the powers had shown their unity of council and purpose by presenting identical notes.³³ But in this instance the effect of their concurrent action was somewhat increased by the

supporting representations which certain of the smaller states, Italy, Spain, Portugal, and Sweden, made in response to the invitations of the intervening powers.³⁴

It is not possible to consider the action of these smaller states as intervention, since they were unwilling to appear to go beyond the ordinary friendly representations which are free from any thought of ultimate recourse to arms.³⁵

We have said enough to show that the concurrent representation of the cooperating powers might reasonably and presumably be regarded as an intervention by the Russian Government itself and by public opinion in all other states including the intervening states. Henry Adams, then in London with his father, the American Minister, wrote May 8, 1863, ".. and the Polish question is becoming so grave that we are let up a little" (A Cycle of Adams Letters 1861-5, Vol. I, p. 296).

For a moment Russia felt really apprehensive,³⁶ and Prince Gortchakoff expressed a willingness to consider the representations of the intervening powers, and by his language seemed expressly to invite suggestions as to the best solution of the difficulty upon the basis of and in conformity with the provisions of the Treaties of Vienna (British State Papers, Vol. 53, p. 892, 896-7, cf. 898). It was not long, however, before Prince Gortchakoff became convinced that Great Britain would not fight for Poland and that Earl Russell's peremptory words would not be sustained by the ministry or the British public.³⁷ He must also have calculated upon the estrangement between the Western Powers and the advantage Russia derived from Prussia's assistance. It was likewise apparent that Austria did not want war if she could avoid it.

This was Gortchakoff 's opportunity to pay back Earl Russell in his own coin. He left the British note unanswered for some time and then declined to accede to the suggestion which the intervening powers had made. The note which Baron Brunnow was instructed to deliver to Earl Russell left only the choice of an humiliating acquiescence or recourse to arms. (See British State Papers, Vol. 53, p. 901-907, cf. 907-910, 917). As Lord Russell himself recognized "...the question came to be whether the three powers should together urge their demands by force or relinquish the attempt." (Spencer Walpole's Lord Russell, Vol. I, p. 383) . But the recollections of the Crimean war were still too vivid and the distrust of France too deep for the British ministry to pick up the gauntlet.³⁸

And thus disappeared all hope of effective action to prevent the Russian Government from oppressing the Poles by denying them a reasonable degree of autonomy and the continued enjoyment of their national language and institutions. The government of the "autocrat of all the Russias" unchecked by the Liberal Powers and aided by Prussia crushed out the desperate resistance of the Polish patriots.

The net result of the false start of the powers was to humiliate Great Britain³⁹ and to mislead the unfortunate Poles, who might reasonably believe that the Liberal Powers would not withdraw after they had so far committed themselves by the peremptory and categorical language of their representations.⁴⁰

It remains for us to show that the intervention of Great Britain, France, and Austria is to be classed as humanitarian. It cannot be doubted that the wish to protect the Poles from Russian oppression and to secure for them a reasonable recognition of their national aspirations was the motive back of the governmental initiative of the Western or Liberal Powers. It is reasonable to assume that this was the original impulse which caused the intervention when we note the extraordinary sympathy shown for the Polish insurrectionists in all parts of Europe.

The people of England and France and of the other countries of Europe had not forgotten the ruthless manner in which Nicholas I, in 1832, had crushed out the Polish uprising. Everywhere the Polish patriots found a strong and popular support. The excitement aroused in England, says Lord Redesdale, amounted to intoxication (Memories, Vol. II, p. 217). In the official representations which Napoleon III made at St. Petersburg, the question of Poland is spoken of as one which by exception is supported by all factions in France (British State Papers, Vol. 53, p. 827). From Stockholm, the British representative reported that Prince Czartoriski was given a warm welcome at a great banquet attended by two hundred of the notable citizens, and that he was received by the sovereign (Ibid, p. 853-8). From Berne came the report of Swiss sympathy and indignation at the brutal conscription of the Polish leaders (Par. Papers 1863, Vol. 75 [3150] No. 94). It was to be expected that Italy, the proponent of the rights of nationalities, would be deeply moved by the events in Poland (British State Papers, Vol. 53, p. 875, cf. ibid, p. 880).

Evidently this sentiment in favor of the insurrectionists was too widespread and too profound to be ignored by governments dependent upon popular support.⁴¹

Unfortunately the cooperating powers did not understand the perfect justification which humanitarian considerations could give to their concurrent intervention. The inevitable consequence of this misunderstanding was that they weakened the force of their action and wasted their strength in futile efforts to discover some other common ground upon which to base their demands. But despite all their efforts Great Britain and France did not, as will be seen, succeed in discovering any ground other than that by which they set so little store humanity. Neither England or France could base its action on the ground that the events in Poland were a menace to national peace and security such as to justify intervention on the generally admitted ground of self-preservation,⁴² for it was easy for the Russian vice-chancellor to point out that the prolongation of the insurrection was due to the material assistance and the moral support which the Poles received from abroad.⁴³ The failure of the intervening powers to police their territory and to prevent the Polish patriots from using it as a base of hostile operations would have to be justified before they were at liberty to blame Russia for negligence to which they were themselves patently contributory.⁴⁴

For the reasons just given, the Western Powers could not make much of a case when they appealed to Russia to refrain from prolonging a condition which was likely to disturb the peace of Europe.⁴⁵ Here also it was necessary to find some ground to justify the hostile use of their territory by the insurgents before they could blame Russia for the disturbance of the European peace. Until they had absolved themselves they were to be regarded as in part responsible for the disturbance of which they complained, and this defect in their logic was not lost upon Prince Gortchakoff. The Russian vice-chancellor remarking upon Lord Russell's appeal to Russia as a member of the Society of European States to fulfil her duties of comity towards the other states, replied that Russia was too directly interested in the peace of Poland not to appreciate its international obligations. "It would be difficult," he added, "to affirm that she had in this respect met with a scrupulous reciprocity." At the close of this note he appealed to the powers who desired to see Poland pacified to strive on their part to check the spread of moral and physical disorders in Europe and thus to remove the principal source of the disturbances which alarm them for the future (see British State Papers, Vol. 53, p. 897, Cf. 833, 880-1, 895, 903, 907).

Russia's disregard of the stipulation contained in Article I of the Final Act of Vienna seemed to offer a justifiable basis for representations in behalf of the Poles. The British Government that had been mainly instrumental in securing the adoption of this Article in 1815, referred to it in 1863 as it had in 1832 and made it the principal ground of protest against Russian

tyranny. (See British State Papers, Vol. 53, p. 806, 834, 836, 863-4, 898, 912-916, 918. For action in 1831-2, see ibid, Vol. 37, p. 1417, 1422, 1430, 1437, 1439-1444.) Unfortunately this basis of action was neither wise in policy nor sound in law. It was not politically expedient because the French Government could not be expected to show much enthusiasm in supporting the provisions of a treaty which was known to have been dictated to France at the sword's point. There had, furthermore, been so many modifications and violations of the Treaty of Vienna that no one could be certain what provisions were still in force and in how far any power was justified in making counterbalancing modifications to compensate for those which were inimical to its own interests. The most serious legal objection to the argument based upon the treaty was the obvious fact that a treaty cannot create a right of interference in the internal affairs of a sovereign independent state even though the government thereof signs and ratifies the act or sponsion which attempts in express words to confer such a right.⁴⁶

Although the Governments seem not to have understood this principle of international law, their ignorance could not save them from confusion and contradiction when they attempted to make the treaty a justification for acts which they would otherwise have considered as constituting an unjustifiable interference in the internal affairs of Russia.

It is not surprising that Prince Gortchakoff was willing to meet the British Government on this ground which was to be sure no terra firma, but a veritable quagmire (British State Papers, Vol. 53, p. 896, 897; ibid, Vol. 37, p. 1419, 1421, 1424, 1431-2). With a footing so insecure Earl Russell could hardly succeed in his battle of words to find a legal justification for the British intervention.⁴⁷

But when all the specious grounds of support for intervention on the basis of the Treaty of Vienna have been refuted, it is still possible to consider the provisions of Article I of the Final Act as Russia's promise that she would grant to the Poles such reasonable recognition of their rights of self-government and nationality as should accord with the prevalent sentiments of humanity. Viewed in this light, Article I of the Treaty of Vienna would not authorize an unjustifiable interference in the internal affairs of an independent state, but would be merely the formulation of the rights which international law guarantees to a subject people. In the event of a failure to grant this minimum of right, any state would have the right, and all the nations would have the obligation, in so far as the circumstances would allow, to undertake an intervention on this ground of humanity. That is for the purpose of compelling the transgressing suzerain to fulfill his internationally recognized obligations towards the Poles.⁴⁸

Again we are brought back to humanity as the basis of the action against Russia which the British Government vainly thought to find in the treaty alone.

Notwithstanding these attempts to find a ground of justification more satisfactory than humanity, the intervening powers did, withal, concurrently and sometimes incidentally, refer to considerations of humanity. But they did it hesitatingly almost shamefacedly as though this, the only juridical basis upon which their action could be defended, was not one which they cared to present as the real justification of their intervention.⁴⁹

It is to be regretted that the right of intervention upon the ground of humanity should have been so little understood. If the cooperating powers had justified their action upon the ground of humanity to prevent the oppression of the Poles, they might have overcome every argument of Russia, and they would have had back of them a very strong popular support in all parts of Europe. On this firm foundation, the intervening governments could have cooperated to secure the ends which they had in view. All the subtle and specious exchange of arguments could have been brushed aside, and Russia by her acts would have stood forth as a transgressor of the law of nations until such time as she was ready to conform to that law by granting the Poles a reasonable autonomy and recognition of their national aspirations.

Even although the intervening governments were un- mindful of the true justification of their intervention, the statesmen directing the affairs of the intervening states seem to have felt out the law which they did not understand. By their acts they were carrying out unwittingly what we must consider to be clearly an instance of intervention on the ground of humanity. Gropingly and in a blundering fashion the cooperating powers felt their way along the right path. In their notes amidst irrelevant and extraneous verbiage we find embedded the arguments necessary to justify their action upon humanitarian grounds.

To make this clear and to state more precisely the grounds of the action taken, we need only to reproduce a few extracts selected from the various notes of protest.

The repeated reference to humanitarian considerations which we find in the representations of the cooperating powers were not confined to any one of the classes of acts which may be considered to justify humanitarian intervention, but the principal aim of their action was to prevent the oppression of the Poles through the abusive denial to them of a reasonable degree of autonomy and the right to the retention of their language and racial or religious institutions.⁵⁰

As a fitting conclusion to this examination we can do no better than to reproduce the attempts to formulate and define the nature of Russia's obligation to refrain from the oppression of her Polish subjects: The first document is Article I of the Final Act of the Congress of Vienna (see above, p. 91) in which the Poles were promised a constitutional union with Russia and a "distinct administration." The Poles were further promised "Representation and national institutions" which were, it is true, by the terms of the Act to be "regulated according to the degree of political consideration that each of the governments to which they belong shall judge expedient and proper to grant them."⁵¹

The overt acts by which Russia oppressed the Poles were well described by Lord Palmerston in a dispatch to Lord Durham, July 3, 1832: "The Treaties of 1815, to which Russia was a party (not only the General Act of Congress of Vienna, but the separate Treaty between Russia and Prussia), clearly stipulate that the nationality of the Poles shall be preserved. But statements have reached His Majesty's Government which, if true, tend to show a deliberate intention on the part of the Russian Government to break down the nationality of Poland, and to deprive it of everything which, either in outward form or in real substance, gives to its people the character of a separate nation.

"The abolition of the Polish colors; the introduction of the Russian language into public acts; the removal to Russia of the national library, and public collections containing bequests made by individuals upon specific condition that they never should be taken out of the Kingdom of Poland; the suppression of schools and other establishments for public instruction; the removal of a great number of children to Russia on the pretence of educating them at the public expense; the transportation of whole families to the interior of Russia; the extent and severity of the military conscription; the large introduction of Russians into the public employments in Poland; the interference with the National Church; all these appear to be symptoms of a deliberate intention to obliterate the political nationality of Poland, and gradually to convert it into a Russian province." (British State Papers, vol. 37, p. 1440.)

In response to Prince Gortchakoff 's intimation that Russia was "ready to enter upon an exchange of ideas upon the ground and within the limits of the Treaty of 1815," Earl Russell before making any definite proposals found it "essential" so he said to point out that there were "two leading principles upon which," as it appeared to the British Government, "any future government of Poland ought to rest" (British State Papers, Vol. 53, p. 898). Earl Russell states the first of these to be:

" …. The establishment of confidence in the government on the part of the governed" (Ibid, p. 898). Earl Russell then referred to the views of Alexander I relative to Poland and laid particular emphasis upon the expression "…. with a national administration congenial to the sentiments of the people," which the Tsar had used in describing his plan for erecting the Duchy of Warsaw "together with the Polish provinces formerly dismembered into a kingdom under the dominion of Russia" (British State Papers, Vol. 53, p. 898).

"The next [second] principle of order and stability," Earl Russell considered to be: "… the supremacy of law over arbitrary will" (Ibid, p. 899). Continuing, Earl Russell said: "Where such supremacy exists, the subject or citizen may enjoy his property or exercise his industry in peace, and the security he feels as an individual will be felt in its turn by the government under which he lives.

"Partial tumults, secret conspiracies, and the interference of cosmopolite strangers will not shake the firm edifice of such a government.⁵² (Ibid, p. 899.) Under the circumstances then existing Earl Russell stated that it appeared to his government that ''nothing less than the following outline of measures should be adopted as the basis of pacification.

"1. Complete and general amnesty.

" 2. National representation, with powers similar to those which are fixed by the Charter of the 15th-27th November, 1815.

"3. Poles to be named to public offices in such a manner as to form a distinct national Administration, having the confidence of the country.

"4. Full and entire liberty of conscience; repeal of the restrictions imposed on Catholic worship.

"5. The Polish language recognized in the Kingdom as the official language, and used as such in the administration of the law and in education.

"6. The establishment of a regular and legal system of recruiting.

"These 6 points might," Earl Russell added, "serve as the indications of measures to be adopted, after calm and full deliberation.

"But it is difficult, nay, almost impossible, to create the requisite confidence and calm while the passions of men are becoming daily more excited, their hatreds more deadly, their determination to succeed or perish more fixed and immovable" (British State Papers, vol.53, p. 899-900).

The British Government speaking through Viscount Castlereagh, Viscount Palmerston and Earl Russell defined the limitations which international law placed upon Russia to prevent the oppression of her Polish subjects and to assure to them a reasonable recognition of their national institutions and aspirations.

In so far as these limitations to prevent that abusive use of power which we call oppression were correctly stated they will apply to and will limit the action of any empire over the alien races and peoples held under its paramount authority.

It is natural to apply them now to Ireland and to see in how far Great Britain has herself observed the rules which she proposed in the case of Poland.

The United States, in 1898, intervened in Cuba on the ground of humanity to put an end to the shocking treatment which the military authorities were inflicting upon the non-combatant population in their futile efforts to suppress the insurrection.⁵³ This humanitarian intervention was undertaken in response to the widespread feeling that the stubborn and prolonged resistance of the Cubans justified their claim to a larger measure of independence than Spain seemed willing to accord.⁵⁴ The United States had other grounds for intervening, as will generally be found to be the case in instances of intervention for humanity.⁵⁵

The most recent case in which a popular appeal for intervention on the ground of humanity to prevent what is alleged to be the ruthless suppression of reasonable nationalistic aspirations is that of Ireland. The student will find it interesting to apply the language of the intervening powers in Poland in 1863 to the case of Ireland in 1921. There have been undoubted

widespread feeling that the stubborn and prolonged resistance of the Cubans justified their claim to a larger measure of independence than Spain seemed willing to accord.⁵⁴ The United States had other grounds for intervening, as will generally be found to be the case in instances of intervention for humanity.⁵⁵ The most recent case in which a popular appeal for intervention on the ground of humanity to prevent what is alleged to be the ruthless suppression of reasonable nationalistic aspirations is that of Ireland. The student will find it interesting to apply the language of the intervening powers in Poland in 1863 to the case of Ireland in 1921. There have been undoubted injustices and abuses of force to record in the long and miserable history of British rule in Ireland. There have been periodic outbreaks and insurrections, and usually there have been acts of reprisal and barbarity on both sides, so that we may fairly say that the presumption that Great Britain has treated Ireland with due consideration is shaken to such a degree as to permit other states to examine the question whether it is not incumbent upon them to intervene. To answer this query it will be necessary to decide whether the fault lies with Great Britain for the continuance of an unjust treatment or for the failure to act with sufficient promptness in according necessary reforms.⁵⁶

The Irish element in the United States and their sympathizers, including of course all the strongly anti-British groups, have brought to bear upon the government a powerful influence for intervention, but it would appear that they have met with no success beyond the adoption of resolutions in Congress. At the time of the discussion of the ratification of the Versailles Peace Treaty with Germany, the following reservation (No.15) was amongst those adopted: "In consenting to the ratification of the Treaty with Germany the United States adheres to the principle of self-determination and to the resolution of sympathy with the aspirations of the Irish people for a government of their own choice adopted by the Senate June 6, 1919, and declares that when such government is attained by Ireland, a consummation it is hoped is at hand, it should promptly be admitted as a member of the League of Nations."⁵⁷

We shall discuss the justification of such action more fully when we consider the limits which the principle of non-interference imposes (see below, 13.) Sir Edward S. Creasy has formulated the ground of justification for intervention in favor of self-determination:

"Where we intervene in behalf of a grievously oppressed people, which has never amalgamated with its oppressors as one nation, and which its oppressors have systematically treated as a alien race, subject to the same imperial authority, but in other respects distinct, the distinction being the distinction between the privileged and burdened, between honored and degraded, between fully protected and ill protected by law in primordial rights of security for person and property and the distinction being hereditary, permanent, and practical. ''And even when a case appears to fall within this third class of exceptions, we must scrutinize it very carefully, before we admit it to that character; and great care must be taken lest there be a violation of the principles of rights of property, of dominion, or of Empire, whether acquired by compact or by prescription..."

Before we approve of Intervention in behalf of an oppressed subject race, it ought to be clear that the non-amalgamation of the two races has been due entirely to the haughty injustice of the dominant race, and that no fair hope of equal laws and equal franchises has been held out to the subjugated and down-trodden nation. Unless these limitations to the exception are strictly attended to, interventions in behalf of what it is now common to term oppressed nationalities are likely to prove the sources of as much unjust war and misery to mankind, as have ever been brought about by interventions in behalf of what used to be termed the right divine of kings, and of the sacred cause of legitimate government." (E. S. Creasy: First Platform of International Law, p. 303-4.)

It will be noticed from the context that Creasy implies that intervention would only be justifiable when undertaken to help an oppressed race to resist new acts of tyranny and encroachments upon its rights, but no state would be justified in inciting a subject people to revolt against existing wrongs or inveterate abuses.

We have already seen that violations of the laws of war, in a conflict between nations are, when sufficiently serious or numerous, a just ground for the intervention of third states. In the case of civil wars or insurrections, similar violations have frequently led to intervention on the ground of humanity. Even Hall (4 ed., § 92, p. 303), who is so severe a critic of humanitarian intervention, seems to admit internecine war as a cause which would be an exception to the general rule that "a state must be allowed to work out its internal changes in its own fashion."

Sheldon Amos, speaking of insurrection, says: "Gross acts of inhumanity persisted in on either side may, on grounds of humanity, properly precipitate intervention." (Amos: Political and Legal Remedies for War, 1880, p. 158. See also Heffter, Europaeisches Voelkerrecht, § 46.) The collective intervention of England, France and Russia to put a stop to the long civil war in Greece (1827) was timed to prevent the complete subjugation of the Greek people, and for that reason the motive of the intervention would seem to have been to protect the rights of self-determination, rather than to put an end to the conflict and the uncivilized methods by which it was conducted.⁵⁸ But it has usually been classed as an instance of humanitarian intervention upon this latter ground, and in deference to the many authorities who have considered it as such we will so treat it.⁵⁹

In 1875 and 1876, Europe was deeply stirred by a recurrence in Turkey of persecutions and outrages. Mr. Morley has described the situation as follows: "Fierce revolt against intolerable misrule slowly blazed up in Bosnia and Herzegovina, and a rising in Bulgaria, not dangerous in itself, was put down by Turkish troops dispatched for the purpose from Constantinople, with deeds described by the British agent who investigated them on the spot, as the most heinous crimes that had stained the history of the century. The consuls of France and Germany at Salonica were murdered by the Turkish mob. Serbia and Montenegro were in arms. Moved by these symptoms of a vast conflagration, the three imperial courts of Russia, Austria, and Germany agreed upon an instrument imposing on the Turk certain reforms, to be carried out under European supervision. To this instrument, known as the Berlin memorandum, England, along with France and Italy, was invited to adhere (May 13). The two other Powers assented, but Mr. Disraeli and his cabinet refused a proceeding that, along with more positive acts, was taken by the Turk and other people to assure the moral support of Great Britain to the Ottoman, and probably to threaten military support against the Russian.

"This rejection of the Berlin memorandum in May marked the first decisive moment in British policy." (Morley : Life of Gladstone, Vol. II, p. 548-9.)

The atrocities committed by the Turks stirred the sympathy of the people in all parts of Europe. In Russia the sentiment for intervention was especially strong because of the deep religious feeling of the masses and the traditional hatred of the Turk. Furthermore, the Russian Government in lending its support might with reason expect to secure some rights of protection over the Christian population of Turkey - an aim it had long cherished. But in Great Britain the Disraeli government was not willing to see Turkey in any danger of coming under the control of Russia, and Lord Derby, the Secretary of State for Foreign Affairs, turned a deaf ear to all appeals for cooperation to organize collective intervention on the ground of humanity.

The governments of Russia, Austria, and Germany tried at first to draw up a plan of reform, and submitted it to Great Britain, France, and Italy. The two latter accepted, but Lord Derby hesitated until it was found that the Sultan was willing to accept the project (Andrassy Note, January 31, 1876). Then came the murders of the French and German Consuls at Salonica, and the three imperial governments agreed upon the Berlin memorandum. It was accepted by France and Italy, but Lord Derby declined and the memorandum was never presented.

Early in July, 1876, Serbia and Montenegro, previously restrained by Russia, declared war on Turkey. In the course of the negotiations for an armistice, Russia mobilized 200,000 men on the Turkish frontier. The next step was a conference of the powers in Constantinople, December, 1876, to January, 1877, at which Lord Salisbury represented Great Britain. This conference broke up without reaching any result.

After the close of the conference, the Porte entered into negotiations with the revolted provinces of Serbia and Montenegro. The great powers meanwhile signed, March 31, 1877, an agreement known as the London Protocol, which set forth the conclusions of the powers relative to the pacification of the Turkish provinces. But Lord Derby accompanied his signature with the following declaration: "Inasmuch as it is solely in the interests of European peace that Her Britannic Majesty's Government have consented to sign the protocol proposed by that of Russia, it is understood beforehand that in the event of the object proposed not being attained, namely, reciprocal disarmament on the part of Russia and Turkey, and peace between them, the protocol in question shall be regarded as null and void." (Foreign Relations, 1877, p. 573.)

After such an invitation, it was not to be expected that the Turkish government would do other than reject the terms of the powers.

The Disraeli government was evidently sparing no effort to shield the Turk and to minimize the crimes of which he was guilty.⁶⁰ Lord Granville wrote Gladstone (February 27, 1877, Life of Lord Granville by Lord Edward Fitzmaurice, Vol. II, 1905, p. 164), "Derby last Tuesday again attributed the 'horrors' to the feebleness of the Turkish Government, whereas it was the only thing in which they have shown any energy." Russia declared war and invaded Turkey to perform her manifest duty of protecting the Christian population of Turkey from the inhumane treatment to which they were being subjected.⁶¹ The Gortchakoff circular dispatch of April 7-19, giving the reasons for Russia's making war, discussed the ill-treatment of the Christian population and the futile efforts of the powers to persuade Turkey to inaugurate reforms, and concluded: "In assuming this task, our august master fulfils duties imposed upon him by the interests of Russia, whose peaceful development is hindered by the permanent disturbances of the East. His Imperial Majesty has the conviction that he responds at the same time to the sentiments and interests of Europe." (Foreign Relations, 1877, p. 586.)

Lord Derby in reply, March 1, 1877, defended the Turkish government and blamed Russia for not allowing further opportunity for negotiations. He also charged that Russia by thus intervening alone had violated the treaty of Paris of March 30, 1856. Lord Derby's dispatch concludes: "In taking action against Turkey on his own part, and having recourse to arms without further consultation with his allies, the Emperor of Russia has separated himself from the European concert hitherto maintained, and has, at the same time, departed from the rule to which he himself had solemnly recorded his consent. It is impossible to foresee the consequences of such an act. Her Majesty's Government would willingly have refrained from making any observations in regard to it; but as Prince Gortchakoff seems to assume, in a declaration addressed to all the governments of Europe, that Russia is acting in the interest of Great Britain and that of the other powers, they feel bound to state, in a manner equally formal and public, that the decision of the Russian Government is not one which can have their concurrence or approval." (Foreign Relations, 1877, p. 587.)

The Bulgarian atrocities brought Gladstone from his retirement to champion the cause of the downtrodden Christians, but for many reasons he did not succeed in overturning the policy of the government until the general election, when the return of the Liberal party may in some measure be considered as a vote of censure on Disraeli's failure to allow England to support her part of the burden of intervening to prevent the abominable atrocities perpetrated by the Turks on the Christians under their sway.⁶² The English historian, J. R. Green, well says in a letter quoted by Morley : "I begin to see that there may be a truer wisdom in the 'humanitarianism' of Gladstone than in the purely political views of Disraeli. The sympathies of people with peoples, the sense of a common humanity between nations, the aspirations of nationalities after freedom and independence, are real political forces ; and it is just because Gladstone owns them as forces, and Disraeli disowns them, that the one has been on the right side, and the other on the wrong in parallel questions such as the upbuilding of Germany or Italy. I think it will be so in this upbuilding of the Sclave."⁶³ (John Morley, Life of Gladstone, Vol. II, p. 561.)

The violation of the laws of civilized warfare have led to several other interventions.⁶⁴ In 1835 the British Government intervened to prevent the Carlists from shooting their prisoners. (See Abdy's Kent, p. 244, note 2; British State Papers, Vol. 24, p. 396-416.) When the Nicaraguan Revolutionists under Zelaya bombarded Managua (1893) without notice, killing and injuring persons near the American legation, a strong protest was presented against this as an "act of barbarism," but when General Zelaya justified the act on the ground that Managua was a fortified place from which the enemy had. . ."fired on his forces who wishing to avert hostilities in reality remained in front of the city several hours without firing," and that they had detained a flag of truce, the American Minister accepted the explanation as a reasonable one. (Moore's Digest, Vol. VII, p. 181-2.)

The following incident which occurred in Italy may perhaps be considered typical of this class of interventions: "On the failure of Lord Minto's mediation, the Sicilians proceeded to decree the separation of the crown of Naples and Sicily, and proposed to the Duke of Genoa to become their king, which he, however, declined. The King of Naples, on the arrival of this news, despatched ships and troops against Messina and Palermo. The bombardment of these towns was attended by such acts of violence and cruelty on both sides that the English and French fleets interfered to procure an armistice. The period for cessation of hostilities expired, however, without any arrangement being arrived at. The fight was renewed; and the Sicilian revolt was finally put down by the middle of the year 1849." (Extract from Ashley's Lord Palmerston, Vol. I, p. 57 ; Cf . Stapleton : Intervention, p. 84-5.)

In these cases in which the insurrectionists are subjected to cruelties not permitted by the laws of war, there is, as we have seen, a just ground for humanitarian intervention, quite apart from any consideration of material injury done to neighboring states and their nationals, but when prolonged strife and anarchy seriously affect the latter, there arises still another justification for intervention by way of impeachment of the effective sovereignty of the titular government over the territory in question. (See discussion relative to the recognition of insurgents and belligerents, § 14.)

To conclude our consideration of humanitarian intervention to put an end to civil wars which are conducted in a manner to shock public opinion, we shall quote from John Stuart Mill's article discussing intervention: "A case requiring consideration is that of a protracted civil war, in which the contending parties are so equally balanced that there is no probability of a speedy issue; or if there is, the victorious side cannot hope to keep down the vanquished but by severities repugnant to humanity, and injurious to the permanent welfare of the country. In this exceptional case it seems now to be an admitted doctrine, that the neighboring nations, or one powerful neighbor with the acquiescence of the rest, are warranted in demanding that the contest shall cease, and a reconciliation take place on equitable terms of compromise. Intervention of this description has been repeatedly practiced during the present generation, with such general approval, that its legitimacy may be considered to have passed into a maxim of what is called international law." (John Stuart Mill: Dissertations and Discussions, vol. Ill, p. 172. "A Few Words on Non-intervention," reprinted from Fraser's Magazine, December, 1859, p. 773-4.)

Humanitarian intervention has frequently been employed for the protection of individuals against an abusive treatment, either the arbitrary confiscation of their property or the restraint of their personal liberty without justification in law. When the authorities of an independent state persist in administering the law with injustice and cruelty so excessive as to constitute an intolerable abuse and to shock the opinion of other states, it has led in certain instances to intervention on what we may properly designate as the ground of denial of justice. The dangers and burdens which the repression of an occasional abuse would entail, as well as the remembrance of the fact that every state has given some causes of complaint, prevents intervention except in the case of persistent abuses or extraordinary crimes., To this latter category belongs the assassination of King Alexander and Queen Draga of Serbia.

On the night of the 10th of June, 1903, a military uprising occurred at Belgrade. Officers made their way into the Konak and massacred King Alexander and Queen Draga, and hacked them with savage ferocity. According to the official report of the autopsy, the King received forty wounds and the Queen sixty-five. (See the Temps of June 17, 1903.) General Zinzar Markovitch, President of the Council, and General Pavlovitch, Minister of War, the two brothers of the Queen, Nicolas and Nicodeme Lunjevitch, were also among the number of the victims.⁶⁶ The horror caused by these events throughout Europe was profound, and the condemnation was unanimous. An ordinary conflict between the two opposing factions, the Obrenovitches and the Karageorgevitches, would not have astonished Europe. There were causes enough, as Europe well knew, to explain the revolution at Belgrade, but that was no justification for the scenes of carnage which took place on the night of the 10th of June. To have deposed King Alexander would have been reasonable, not so his assassination.⁶⁷ The governments joined in the general reprobation of the murder itself. M. Delcasse, the Minister for Foreign Affairs, as soon as he was informed of what had occurred, called upon the Serbian Minister to express to him the profound condolences of the French Government. (See Journal des Débats of June 13, 1903). A similar course was adopted by the King of Greece, his ministers, and the diplomatic corps ac credited to him. Court mourning was ordered in Russian Spain, and in Romania. Several of the states that recognized the government of Peter I expressed their condemnation of the events of the night of June 10. In the House of Commons, the Prime Minister, Mr. Balfour, stigmatized the act as a crime which dishonored the capital of Serbia. In the House of Lords, Lord Lansdowne discussed the means by which the Government might seek to ''express its indignation." In the Hungarian Chamber, similar sentiments were expressed. But in the Italian Senate, Admiral Moriii made a declaration which may be considered to express the views of the different powers. "The government," said he, "shares the sentiments of horror which this tragic occurrence has aroused in Italy as in all parts of the civilized world. Nevertheless, even though this feeling dominates all other impressions in the presence of this terrible tragedy, the Government must remember that the events which took place at Belgrade, notwithstanding their atrocity, relate to internal affairs."

It was not for other states to take notice of them. Similar views were expressed by Count Goluchowski before the Budget Commission of the Austrian Delegation. (See Temps, January 13). This was also the opinion of the powers. But if the other states were not called upon to take action to secure the adequate punishment of the culprits, should they hold aloof from the new government established in Serbia? This was a question which soon arose.

A provisional government was soon formed under the presidency of M. Avokoumovitch, and it undertook to maintain order until the election of a new sovereign by the nation. In a communication to the press, the provisional government expressed the conviction that by so doing it would secure "for the new order of things the sympathy of the European powers." But the latter refused to recognize the provisional government and to enter into official relations with it. They directed their representatives at Belgrade to limit their action to the protection of their nationals. This course could be adopted without inconvenience, since it was not expected to be prolonged beyond a brief period, and it would give satisfaction to public opinion, which accused the provisional government of complicity in the murders, because of the fact that it was established so soon after the murder, and because it contained among its members some of those who had participated in the conspiracy.

The situation was changed after the Skoupchtina had chosen Peter Karageorgevitch king by unanimous vote.⁶⁸

The powers then decided to recognize him, and they did so without delay, but not all of them with an equal grace. The Tsar and the Emperor of Austria led the way and congratulated Peter I upon his election. The King of Italy and the Prince of Montenegro were also among the first to express their good wishes, as was to be expected on account of family ties. The other powers quickly followed the example of the two empires most directly interested in Balkan affairs. They acknowledged the receipt of the announcement of King Peter's accession to the throne, and addressed their felicitations to him. Great Britain was somewhat slower than the others to recognize the new King. Edward VII delayed his reply for five days. The different views of the powers were made evident by the instructions which they gave to their diplomatic representatives at Belgrade. The full powers of these diplomats had come to an end with the death of Alexander I, the sovereign to whom they had been accredited. This was explained by Mr. Balfour in the House of Commons, and Lord Lansdowne in the House of Lords. It had been suggested in the press, and the English statesmen had considered the recalling of their agents from Belgrade to indicate their condemnation, but this was not done, and the members of the diplomatic mission were allowed to remain for the purpose of reporting upon events, and protecting national interests.

After the election of Peter I, and before his entry into Belgrade, the Russian Minister renewed official relations by a visit to the Serbian Minister for Foreign Affairs, and he was present, with the Austrian Minister, when the king arrived to take the oath of office. The representatives of the other powers did not take part in this ceremony. They had received orders from their governments not to appear. Several of them even left Belgrade. Great Britain, in this instance, also went further than the others in expressing disapprobation, since her minister was the first to leave.

In the instructions which the powers had given to their ministers they committed no impropriety. The diplomatic agents upon the death of the king had lost their official character, and their absence from this ceremony was natural. But even though they kept within the limits of the law, the effect of this absence was to manifest the sentiments of reprobation which the powers entertained because of the crime of June 10. Nevertheless, as Peter I was the recognized King of Serbia they did not delay in renewing the letters of credence of their representatives at Belgrade. Certain of the powers, although they did not consider that they

should concern themselves with what was a question of internal affairs, felt, nevertheless, that they ought to express their opinions and give their advice to the Serbian Government. Emperor Francis Joseph, in his telegram in reply to the announcement of the election of Peter I, wished that he might "happily accomplish the noble mission which was confided to him by helping his country to recover the good opinion which she had lost in the eyes of the civilized world in consequence of the odious and universally abhorred crime recently committed." The Russian Government, in its official organ, Messager du gouvernement, published a communication in which the Government of the Tsar demanded the punishment of the assassins, and Edward VII, in his telegram of June 30th, expressed to Peter I his hope to see reestablished the reputation of his country upon which recent events had left so regrettable a stain.

The counsel of the powers was without effect. Notwithstanding the good intentions manifested by King Peter upon his election, the regicides were not prosecuted because a decision of the Skoupchtina during the interregnum had covered them by an amnesty. This fact and the favors shown to the officers who had participated in the assassination led to a new military plot which, however, did not succeed. In several European capitals, the Serbian officers were ostracized. At St. Petersburg the officers who were sent to escort the returning children of King Peter were not received, on the ground that they had been implicated in the assassination of the former sovereigns. A rumor even was circulated that when King Peter expressed a desire to visit the German Court, Emperor William had replied that he would refuse to receive the patron of regicide officers. Finally, the entire diplomatic corps left Belgrade to avoid coming in contact with the regicide officers who were attached to the person of the King during the reception on New Year's day. To lessen the effect of this action, the King thought best to absent himself also from his capital on the pretext that he was celebrating at Tapoli the centenary of the war of deliverance. The Charges d'Affaires at Belgrade merely wrote their names in the visitor's book at the palace.

Some months after the occurrence of these events, the American Secretary of Legation at Athens, in a dispatch of April 7, 1904, reported to Secretary Hay: "… the transfer of several of the officers concerned in the murder of the late King and Queen." The dispatch concludes as follows: "The result of this measure has been that the chief objection of the powers against renewing diplomatic relations with Serbia has been removed, and Russia immediately announced the appointment of M. Goubastoff, at present minister to the Vatican, to succeed M. Tcharykoff as minister at Belgrade. Italy has also informed King Peter that the Italian minister will immediately ask for an official reception, and it is expected that the other countries will soon follow the example of Italy and Russia." (Foreign Relations, 1904, p. 800.)

Although an occasional instance of intervention in the case of an extraordinary crime or transgression may properly be classed as humanitarian and justified in law, ordinary intervention to prevent injustice is in practice restricted to instances in which a government has been guilty of persistent misconduct or a prolonged neglect to remedy unjust conditions within its jurisdiction. A typical instance of action to remedy persistent injustice was the collective intervention of the powers in Morocco in 1909 because of the employment of torture to obtain evidence from witnesses.

From Professor Antoine Rougier, we borrow the following interesting account of the collective intervention of the powers in Morocco: "During the summer of 1909, Moulay-Hafid undertook a successful campaign against the Eoghui, or claimant to the throne of Morocco, Bou-Hamara. The

Roghui and a number of his adherents fell into the Sultan 's hands. He declared his prisoners guilty of rebellion, and punished them with the utmost severity, so as to impress the native population. The most usual punishment passed upon the rebels was to cut off their hands and feet. The punishments often involved the most refined torture, terminating in a slow death. The traditional torture with salt which had been given up in Morocco many years ago was reintroduced. As for the Roghui, while waiting for his sentence, he had been shut up in an iron cage like a wild beast and displayed to the gibes of the populace.

"These acts, reported by the press, aroused the sympathy of Europe. A certain number of the members of the French Parliament addressed themselves to the Minister for Foreign Affairs and asked that France should intervene in Morocco to put an end to these scenes of cruelty, and to save the Roghui from the punishment which apparently was reserved for him. The minister willingly consented and gave instructions to this effect to the French Minister at Tangiers, M. Regnault. Similar opinions were expressed in most of the countries of Europe. The Spanish Minister for Foreign Affairs, in particular, gave corresponding instructions to his representative to the Sherifian Government. (See Journal des Débats, Aug. 29, 1909.)

"As early as August 30, 1909, two consuls at Fez, those of France and England, M. Gaillard and Mr. MacLead (see Matin, September 4, 1909) had addressed remarks to the Sultan in a purely friendly and private capacity, and in accordance with the informal and unofficial instructions of their respective governments. When Moulay-Hafid seemed little disposed to give heed to them, the members of the diplomatic corps at Tangiers drafted a collective letter in which they demanded that the Sultan abandon torture in Morocco, namely all bodily punishment producing mutilations or slow death, and that in the future he observe ' the laws of humanity.' This letter was carried by a special messenger and it was delivered to the Sultan by the Consular Corps at Fez, presided over by the dean of the corps, and when it was delivered it was accompanied by verbal representations." (See Journal des Débats of September 4, 10, 11, and 15, 1909.) "This second proceeding [demarche], undertaken by the representatives of the European powers, undoubtedly amounted to a diplomatic intervention in Sherifian affairs [administration]. The result in any event was unfortunate. The Sultan gave to the assembled consuls all the assurances for which they had asked and he solemnly promised to observe in the future the laws of humanity. Soon after their departure he ordered the Boghui, his enemy, to be immediately put to death, and addressed a long memorandum to a paper in Tangiers (La Depeche marocaine of Sept. 10, 1909) to justify the measures of repression employed against the adherents of Bou-Hamara.⁶⁹ The Minister for Foreign Affairs, in making a report of this incident to the Council of the Ministers, could do no more than recognize the failure of the European intervention.⁷⁰ (Translated from A. Rougier in Revue générale de droit international public, vol. 17 (1910), p. 98-9.)

From the reminiscences of an experienced diplomat, we draw another illustration : Sir Frederick St. John, British Minister to Central America in the early eighties, convinced himself after a careful examination that the then President of Guatemala, Barios, was a bloodthirsty tyrant who did not hesitate to make away with his victims and to subject them to the most revolting cruelties. The British Minister was deeply stirred by what he learned, and convinced that there was justification for a report to the Foreign Office of what was going on in Guatemala. "When my report reached home," writes Sir Frederick, "it was printed and communicated to several Continental Governments, with the object of concerting as to what steps should be taken in common ; but, with one exception, none of my foreign colleagues corroborated my statements; notwithstanding that they had been the principal source whence I derived my information, which, from a much longer residence than mine, and a wider and more intimate acquaintance with the natives, they were qualified to give." One of the diplomatic representatives was sufficiently disloyal to communicate Sir Frederick 's report to President Barios who behaved with such insolence to the British Minister that his government ordered him by telegraph, "to leave the country at once, and come home." "The reason of this repudiation," remarks Sir Frederick, "was obvious. None of my foreign colleagues were in the regular diplomatic service, and must have felt that, if recalled by their Governments, they would receive no appointment elsewhere.

"My own position was different; but, on the other hand, I exposed myself to the suspicion that I had been actuated by a desire to obtain another post. I can only affirm that nothing was farther from my thoughts. I had just set up a very costly establishment on my marriage, and it was my interest to remain for some time at my post and recover from my excessive outlay."

When the British Minister left Guatemala, the American Minister, Mr. Hall, accompanied him for a considerable distance, evidently for the purpose of shielding him against outrages from the local authorities on account of the report which he had made to his government.

"On arriving in London," writes Sir Frederick, "I reported myself at the Foreign Office, where it at once became evident to me that my account of what was going on in Guatemala met with little credence ; and I was advised by an 'Assistant Under-Secretary of State' Ho go to the country and rest.' He afterwards informed a relative of mine that I was suffering from 'President on the brain.'

"I pondered over this official non-medical opinion, and came to the conclusion that my foreign colleagues at Guatemala were wise in their generation in withholding from their governments the information I had, in a thoughtless moment, given to mine, and of which they were as cognizant as myself." (Sir Frederick St. John: Reminiscence of a Retired Diplomat, p. 231-6.)

Intervention to prevent injustice cannot legally be made a ground for interfering in the internal political affairs of an independent state to establish representative institutions or any other form of constitution or government. However morally justifiable interference for such a purpose may be, it remains an act of policy and must be defended as such. But an interfering government is ever prone to consider and to assert that its interference in favor of constitutionalism or legitimacy is an intervention justifiable according to the principles of international law.

In recent decades, when absolutist governments have considered themselves fortunate to preserve their possessions, the liberal states, such as England, and more recently the United States, have interfered in favor of representative institutions.⁷⁰

When Secretary Knox notified the Nicaraguan Charge of the refusal of the United States to continue the recognition of Zelaya 's Government, among the reasons given in the note of December 1, 1909 (Foreign Relations, 1909, p. 455; Cf. Moore's Principles of Diplomacy, p. 266), was: "It is equally a matter of common knowledge that under the regime of President Zelaya republican institutions have ceased in Nicaragua to exist except in name." It is only fair to state that this was but a part of the description of intolerable conditions which were the real and a sufficient justification for the intervention of the United States. President Wilson seems to have gone much further, and to have made interference to preserve constitutionalism a basic principle of his administration. Upon this ground, he refused to recognize General Huerta when he was de facto in control of Mexico City and a great part of the country.⁷¹ (Cf. J. B. Moore, Principles of American Diplomacy, p. 213-238. See also correspondence, Mexico, in Foreign Relations, 1913). More recently the Tinoco Government in Costa Rica was regarded as beyond the pale, apparently because it had acquired control through force and not in accordance with constitutional provisions and election.⁷²

Sir Henry Maine, in his Lectures on International Law (p. 63), has remarked upon the tendency to interfere in constitutional affairs: "Before, however, the European peace finally broke up, the current had turned in the other direction; and Great Britain, whose foreign affairs were now directed by Lord Palmerston, employed its influence to assist states which desired to obtain Constitutions. In addition to the desire for popular government the spirit of nationality had now come into play; and the ultimate result was the intervention of Napoleon III in Italy and the destruction of the Italian despotisms. Therefore all the Powers in Europe, during the peace, did in turn act upon principles from which the inference might be drawn that they denied the right of a state under certain circumstances to adopt what political Constitution it pleases; nevertheless," he adds, "this rule of law in the long run prevailed." From Professor Lingelbach's discussion of the principles of intervention, we quote the following passage: "In the Quadruple Treaty of 1834⁷³ the two countries [Great Britain and France] guaranteed their aid against Don Carlos and Don Miguel, the representatives of the reactionary and despotic tendencies in Spain and Portugal, affording a striking illustration of how these two states, in their eagerness to support constitutionalism, went almost as far in interfering in the internal affairs of other states as did Metternich himself. The claim to the right of intervention in support of constitutionalism must rest on precisely the same principle as do the acts of the Holy Alliance." (W. E. Lingelbach: The Doctrine and Practice of Intervention in Europe, Annals of the American Academy of Political and Social Science, 1900, vol. XVI, p. 16.)

What is politics to-day may become the law of tomorrow, but as yet there is under international law no right of intervention to foster or to impose representative institutions.

In many instances the great and highly civilized states have interposed to secure for their nationals a better treatment than certain backward states were according their own nationals. To justify this course, the theory has been advanced that the state which admits aliens may be assumed to promise and guarantee them those rights which are recognized as indispensable for all human beings in civilized states.

Sir Roundell Palmer (later Lord Selborne) ably stated this view in a speech on the "Greek Massacre", which he delivered in the House of Commons May 20, 1870: "With regard to all Englishmen travelling in a friendly State pretending to civilization, we have a right to look for the observance and the enforcement by that State of the principle which is briefly stated by Chancellor Kent, in his 'Commentaries on Public Law,' where he says 'that when foreigners are admitted into a State upon free and liberal terms, the public faith is pledged for their protection.' That does not, of course, mean that an exceptional protection, greater than that which well-constituted governments ordinarily extend, and ought to extend to their own citizens, is pledged to the citizens of foreign States; but it does mean that those foreigners who come within their limits have the public faith pledged to them for the protection of a bond fide settled government, capable of repressing violence, outrage, and crime, in that manner and in that degree in which human governments in civilized countries ordinarily are capable of discharging those functions. And it is manifest that if foreigners were not entitled to look for that protection, all possibility of respecting the independent territorial sovereignty of foreign States would be at an end, and every

nation would be compelled to apply its own power for the protection of its own citizens in foreign countries." (Hansard, vol. 201, p. 1123, quoted by Creasy: First Platform of International Law, p. 307 and 336.)

It seems hardly fair however for the advocates of the theory of perfect rights and absolute independence to destroy the child of their imagination by creating by implication and construction an undertaking on the part of an independent state to guarantee to aliens advantages which it is unwilling or unable to accord its own citizens. In refutation of such a theory and in defense of the right of sovereignty, it would be a sufficient answer to quote from Secretary of State Marcy's instructions of April 6, 1855, to the American representative at Vienna: "The system of proceeding in criminal cases in the Austrian government, has, undoubtedly, as is the case in most other absolute countries, many harsh features and is deficient in many safeguards which our laws provide for the security of the accused ; but it is not within the competency of one independent power to reform the jurisdiction of others, nor has it the right to regard as an injury the application of the judicial system and established modes of proceedings in foreign countries to its citizens when fairly brought under their operation. All we can ask of Austria, and this we can demand as a right, is that, in her proceedings against American citizens prosecuted for offences committed within her jurisdiction, she should give them the full and fair benefit of her system, such as it is, and deal with them as she does with her own subjects or those of other foreign powers. She cannot be asked to modify her mode of proceedings to suit our views, or to extend to our citizens all the advantages which, her subjects would have under our better and more humane system of criminal jurisprudence." In the course of these same instructions, Marcy said: "That feature in the criminal law of Austria which interdicts to the accused under arrest intercourse and free communication with his friends is certainly revolting to our notions of justice and humane treatment, but it is not peculiar to that government. Several other countries in Europe have the same provision in their system of criminal law... I am not attempting to justify the Austrian criminal code, …; but condemnable as it may be, we have not the right to alter or suspend it, nor can we convert the fair application of it to one of our citizens when brought within its jurisdiction into an international offence." ⁷⁴ (Manuscript instruction given in Moore's Digest, Vol. VI, p. 275.)

Without contradicting Marcy's correct statement of the legal principle under international law, Elihu Root is the authority for a statement of the right of aliens to a favored treatment in the exceptional circumstances which we are considering. In his Presidential Address before the tenth meeting of the American Society of International Law, in the course of his discussion of "The Basis of Protection to Citizens Residing Abroad," Mr. Root said:

"There is a standard of justice, very simple, very fundamental, and of such general acceptance by all civilized countries as to form a part of the international law of the world. The condition upon which any country is entitled to measure the justice due from it to an alien by the justice which it accords its own citizens is that its system of law and administration shall conform to this general standard. If any country's system of law and administration does not conform to that standard, although the people of the country may be content or compelled to live under it, no other country can be compelled to accept it as furnishing a satisfactory measure of treatment to its citizens. In the famous Don Pacifico case, Lord Palmerston said, in the House of Commons:

" 'If our subjects abroad have complaints against individuals or against the government of a foreign country, if the courts of law of that country can afford them redress, then, no doubt, to those courts of justice the British subject ought in the first instance to apply ; and it is only on a denial of justice, or upon decisions manifestly unjust, that the British Government should be called upon to interfere. But there may be cases in which no confidence can be placed in the tribunals, those tribunals being, from their composition and nature, not of a character to inspire any hope of obtaining justice from them. It has been said: "We do not apply this rule to countries whose governments are arbitrary or despotic, because there the tribunals are under the control of the government, and justice cannot be had; and, moreover, it is not meant to be applied to nominally constitutional governments, where the tribunals are corrupt.' "

" 'I say, then, that our doctrine is, that, in the first instance, redress should be sought from the law courts of the country ; but that in cases where redress cannot be so had and those cases are many to confine a British subject to that remedy only, would be to deprive him of the protection which he is entitled to receive ……

" 'We shall be told, perhaps, as we have already been told, that if the people of the country are liable to have heavy stones placed upon their breasts, and police officers to dance upon them; if they are liable to have their heads tied to their knees, and to be left for hours in that state; or to be swung like a pendulum, and to be bastinadoed as they swing, foreigners have no right to be better treated than the natives and have no business to complain if the same things are practiced upon them. We may be told this, but that is not my opinion, nor do I believe it is the opinion of any reasonable man.' "

"Nations to which such observations apply must be content to stand in an intermediate position between those incapable of maintaining order, and those which conform fully to the international standard." ⁷⁵ (Proceedings of the American Society of International Law, 1910, p. 21-2.)

If we accept Mr. Boot's statement and how can we do otherwise the difficulty disappears. The consequence of this rule is that the law of nations is recognized supreme, and requires every state that would preserve its independence to remove the grounds which, under the supreme law of nations, would justify an intervention.⁷⁶

If space would permit, we might amplify this discussion, but this is unnecessary if the reader is convinced that: In accordance with the principles of international law, every state is required to police its own territory in such a manner as to secure for all its inhabitants, nationals as well as aliens, a reasonable protection and the enjoyment of a minimum of rights, recognized by that law as absolutely indispensable for all civilized human beings." The failure to meet this obligation is a delinquency which justifies interposition of the alien's government to secure redress. The natives of the delinquent state, when they are subjected to abuse, are expected to revolt and establish a government able to maintain them in their rights, and it is only exceptionally that other states may be expected to intervene to help them to obtain their rights. Interposition to secure a privileged treatment or status for aliens brings out in bold relief the obligation of every state to accord a minimum of rights to all those under its jurisdiction, and when the failure to fulfil this obligation in so far as concerns its own nationals causes a misery which shocks public opinion in neighboring states, it leads to, and affords a justification for humanitarian intervention. Unless this obligation we have been considering were a part of the law of nations, it would not be logical for another state to demand for its own citizens a better treatment than could be secured by the natives. There is something so patently unjust about the claim to exact for aliens a better treatment than for those who possess the territory that some writers have wished to apply the principle of national treatment to all foreigners who enter the territory voluntarily, but they fail to perceive that the state which sinks below a certain standard is only allowed to maintain its precarious independence upon the condition that at least it live up to its international obligations to the degree of protecting aliens in the enjoyment of a minimum of security to their lives and property. The great states are constantly exerting pressure to maintain their nationals in the enjoyment of this minimum, but they are sometimes restrained from action by their own political embarrassment or a belief that the government of the state in question is unable to secure for their nationals the minimum they are entitled to demand. In this latter event, there arises a just ground for intervention by way of self-help to secure the protection which is due, and this serious step usually leads to annexation or the extension of some form of supervision over the backward state. Interposition to secure a favored treatment for

aliens has shown how clearly international law recognizes the obligation of every government to administer justice in so far as is reasonably possible under the circumstances. Those states that are not able to guarantee the irreducible minimum to their own citizens are required to do so in the case of aliens or else to confess that they are not entitled to rank as independent states fulfilling the obligations of international law.

The concurrent and cooperative representations of Great Britain and the United States to the Belgian Government (1906-09) in behalf of the aborigines of the Congo constitute one of the most remarkable instances of humanitarian intervention. On December 2, 1905, Mr. Henry Lane Wilson, the American Minister at Brussels, transmitted to the Secretary of State, then the Honorable Elihu Root, a copy of "La Verité sur le Congo," "containing," as Mr. Wilson said "... a resume in the English language of the report of the special commission to investigate the administration of King Leopold in the Congo. "The report," states Mr. Wilson, "seems to be made in a spirit of perfect fairness, and the findings of the commission will doubtless be accepted as unprejudiced and just conclusions." A mere reading of this report without any knowledge of the facts justifies the favorable impression which it had created upon the American Minister. It recognized certain inevitable abuses which must occur in any organization such as that of the Congo. It justified the necessity for enforced labor to compel the payment of taxes, and it congratulated the administration on its humanitarian action in refraining from supplying alcohol to the natives who "would have overcome their innate laziness in order to procure it." (Foreign Eelations, 1905, p. 88.)

Reference was made to the favorable opinion of "Messrs. Stapleton and Millman, two missionaries settled in the Falls district," who declared that "they were perfectly satisfied with the moral and material condition of the country." The prevalence of certain barbaric customs, such as the mutilation of the dead, was remarked upon, but the administration of the Congo was praised for its efforts to eradicate these abuses, and for its success in repressing the ravages of the Arab slave dealers. The report stated that "the obligation to work, if not excessive, and if applied in a paternal and equitable way, violence being always omitted, will be an efficient manner to civilize and transform the native population." (Ibid, p. 92.)

On February 20, 1906, Secretary Boot, in reply to a letter which he had received from Mr. Denby relative to the treatment of the natives of the Congo, declared: "…. the United States has no treaty right of intervention. We could not rightfully summon or participate in any international conference looking to intervention, adjudication, or enforcement of a general accord by other African powers against the Congo State." ( Foreign Relations, 1906, Part I, p. 88-9. )

The Belgian Minister at Washington cabled his Government a summary of Mr. Root's letter, and shortly thereafter, the American Minister at Brussels notified his Government of the satisfaction which the letter above referred to had afforded the Belgian Government. In his report, Mr. Wilson said: "The full text has been printed by almost every respectable newspaper in Belgium, and the editorial comments have been uniformly expressive of high appreciation and

approval of the position assumed by Mr. Root.

"I enclose a copy and translation of an editorial excerpt from Independence Beige, the leading daily paper of Brussels, and also a translation of a part of an article by Kurt Wolff in the German magazine Handel und Industrie, bearing upon the subject treated by Mr. Root in his letter to Mr. Denby.

"The Congo Government are greatly pleased with the attitude of the United States, as outlined by Mr. Root, as it has recently had to meet attacks not only from foreign sources, but also from Belgium. It has issued a pamphlet in English containing Mr. Root's letter, and has had the same translated into French and German." (Foreign Relations, 1906, Part I, p. 94.)

A few months after this, on April 12, 1906, Senator Morgan presented an appeal to Congress from the Congo Reform Association on behalf of the natives of the Congo, which was printed and distributed as a Senate Document (No. 316, 29th Congress, 1st Session). To this were annexed a number of statements from missionaries in the Congo State and affidavits purporting to reproduce the evidence which certain witnesses had already given before the Commission of Inquiry appointed by King Leopold, which evidence, notwithstanding the ex parte character of the Commission the Congo Government had "failed to make accessible to the public and to other governments" (Ibid, p. 2). The evidence submitted was of a nature to show that the aborigines of the Congo engaged in collecting rubber had been subjected to a barbarous treatment in order to terrorize them into bringing in the required supplies of rubber.

⁷⁸ The appeal of the Congo Reform Association, signed by a distinguished and philanthropic group of citizens,⁷⁹ urged the necessity of international action. The report declared:

"With reference to the condition thus disclosed we would respectfully urge that international action is a necessity. The Congo Government evidently is disqualified for dealing satisfactorily with the existing situation, in view of its alleged responsibility for the wrongs reported, and of its acknowledged commitment to maintenance of the system of territorial monopolization to which it is declared these wrongs are directly traceable." (Senate Document 316, p. 2.)

While it was admitted that the United States did not "share the supervisory powers belonging to the signatories of the General Act of the Berlin conference," it was, the appeal declared, "…. equally clear …." that the attitude taken by the United States permitted it with perfect propriety to "... suggest to the powers the importance of meeting again for consideration of the grave reports now current, …." As regards the powers and obligations of the United States under the Brussels act, the Committee pointed out that the Brussels conference "represented a joint cooperative effort for relief of conditions in the Congo territory. While dealing primarily with measures for 'repression of the African slave trade,' it was animated by a purpose of larger scope disclosed by the declaration of its aim of 'effectively protecting the original population of Africa and securing for this vast continent the benefits of peace and civilization.' (Ibid, p. 3.) All the powers were alike committed, in the opinion of the Committee, "to the cooperative purpose represented by the conference," (Ibid, p. 3) and amongst them the United States since it was a signatory of the General Act of Brussels. The appeal of the Committee continues:

"We recall that the President of the United States, in making publication of the General Act of Brussels, states that it was duly ratified, together with the protocol of January 2, by the United States Government, and adds that the Act is "made public to the end that the same, and every article and clause thereof, may be observed and fulfilled with good faith by the United States and the citizens thereof.

"We would urge that under the General Act of Brussels our government is entitled to suggest to the powers the propriety and importance of instituting an inquiry to determine whether the government of the Congo State, by its permission of conditions reproducing the worst horrors of the slave trade, is not in violation of the spirit, and of certain specific engagements, of its agreement under the Act of Brussels; and that it may inquire further whether the system of monopolization of territory and products maintained and enforced by the Congo Government is not itself fatally hostile to the discharge of the engagements contracted by that Government in the Act of Brussels and thus fatal to the purpose of the powers as represented by that Act. It would further appear that our government, having the power, is under obligation to take this course in view of the extreme gravity of current reports.

"It is noteworthy that in its treaty with the Congo State our Government makes mention of the obligations which that state has contracted by virtue of the Act of Brussels and indicates its desire to facilitate discharge of these obligations. (Art. X.)" (Senate Document 316, p. 4.)

After stating what were considered to be violations of the rights of commerce granted to American citizens by the treaties with the Congo State, the Committee expressed in the following words its belief in the justification of humanitarian intervention on the part of the United States: "It is apparent that yet another form of action is open to our government, which has certain rights by virtue of its membership in the family of nations. The reserved right belonging to individuals and nations to protest against iniquity and to intervene for the protection of helpless victims of oppression is inalienable with our government." (Ibid, p. 4.)

They further drew attention to the advantage which the United States derived from its disinterested situation: "The position of our government, as defined by its relation to the conferences, would seem to give us a unique advantage, in that we have conspicuously declined to accept any form of political benefit in this territory, and may, therefore, act for the protection of its people without suspicion of other than high and generous motives. We recall that in entering the conference at Berlin our representative, Mr. Terrell, said:

"'The Government of the United States has wished to show the great interest and deep sympathy it feels in the great work of philanthropy which the conference seeks to realize. Our country must feel beyond all others an immense interest in the work of this assembly.' " (Senate Document 316, p. 5.)

The Committee also quoted the following words of a prominent member of the Conference, relative to the cooperation of the United States:

"We attach the highest value to the cooperation of the United States in our work. We know that their traditional policy is to stand aloof from the treaties and political arrangements of European nations, but the work which we are carrying on is purely humanitarian; its only object is the extinction of the slave trade and the improvement of the negro's lot, an object for which the United States has so often poured out blood and treasure." (Ibid, p. 5.)

The Committee concluded: "With an unfaltering confidence that the action taken by our Government will be in accord with these generous sentiments, and that through it this people, disfranchised of the sacred right of life, liberty, and the pursuits of happiness, may rise at length from their low estate to that place in the commonwealth of nations for which development under a just rule may fit them, our communication is respectfully submitted." (Senate Document 316, p. 5.)

It would seem that the carefully gathered testimony of this distinguished group of philanthropists, and the incontrovertible statement of the principles which they set forth as a basis for the action of the United States, must have influenced Secretary Root, for not long after, he completely changed the attitude he had previously taken, when in reply to Mr. Denby he refused to intervene (see above), and on December 10, 1906, he sent the following instructions to the American Charge at London: "Moved by the deep interest shown by all classes of the American people in the amelioration of conditions in the Congo State, the President has observed with keen appreciation the steps which the British Government is considering toward that humanitarian end. You will say so to Sir Edward Grey, inviting from him such information as to the course and scope of the action which Great Britain may contemplate under the provisions of the General Act of the Congo and in view of the information which the British Government may have acquired concerning the conditions in Central Africa, and you will further express to Sir Edward Grey the desire of the President to contribute by such action and attitude as may be properly within his power toward the realization of whatever reforms may be counseled by the sentiments of humanity and by the experience developed by the past and present workings of Congo administration. The President's interest in watching the trend toward reform is coupled with the earnest desire to see the full performance of the obligation of articles 2 and 5 of the General Africa slave-trade Act of Brussels of July 2, 1890, to which the United States is a party, in all that affects involuntary servitude of the natives."⁸⁰ (Foreign Relations, 1907, Part II, p. 793.)

On February 15, 1907, the Senate adopted the following resolution introduced by Senator Lodge:

"Whereas it is alleged that the native inhabitants of the Basin of the Kongo have been subjected to inhuman treatment of a character that should claim the attention and excite the compassion of the people of the United States : Therefore, be it "Resolved, That the President is respectfully advised that in case he shall find that such allegations are established by proof, he will receive the cordial support of the Senate in any steps, not inconsistent with treaty or other international obligations, or with the traditional American foreign policy which forbids participation by the United States in the settlement of political questions which are entirely European in their scope, he may deem it wise to take in cooperation with or in aid of any of the powers signatories of the treaty of Berlin for the amelioration of the conditions of such inhabitants." (Foreign Relations, 1907, Part II, p. 806-7.)

The gravamen of the charge against the Congo authorities, as summed up in the American memorandum of a later date (April 7, 1908), was as follows: "The dissatisfaction with the present administration of the Congo has grown very largely out of its policy toward the native races a policy which was doubtless not intentionally cruel nor purposely at variance with the acts of Brussels and Berlin, but which, in the opinion of competent investigators, is enslaving, degrading, and decimating the native population. It may be admitted that there has been much exaggeration of the true condition of affairs and that many charges have been refuted, but the fact nevertheless remains that conditions prevail which were neither contemplated nor anticipated when the Independent Congo State was called into existence by the powers." (Foreign Relations, 1908, p. 560.)

The testimony of the acts of brutality which aroused public opinion and evoked official protest was disclosed in the official reports published by the British and American Governments. It confirmed the statements in the appeal of the Congo Reform Association. This evidence showed the extreme cruelty and injustice of the treatment of the natives, who were compelled, under the severest penalties to bring in a certain amount of rubber as a payment of taxes.⁸¹

Separately and concurrently, the British and American representatives at Brussels made emphatic and repeated representations, and urged the adoption of reforms which should, in the opinion expressed by the Government of the United States in the memorandum above referred to, have for their object:

"1. The exemption of the native population from excessive taxation.

"2. The inhibition of forced labor.

"3. The possibility of the natives becoming holders, in permanent tenancy, of tracts of land sufficiently large to afford sustenance.

"4. To make it possible for traders and settlers of all nationalities to secure unoccupied tracts of land, needed for the prosecution and development of peaceful commerce, at reasonable prices, in any part of the Congo.

"5. The procurement and guaranty of equal and exact justice to all inhabitants of the Congo through the establishment and maintenance of an independent judiciary." (Foreign Relations, 1908, p. 560-561.)

Early in 1907, the British Government had expressed its desire that Belgium should annex the Congo⁸² in order that the Free State might be placed under the parliamentary control of Belgium. It is easy to understand the reluctance of King Leopold of Belgium to do this. To let his right hand know, as it were, what his left was doing. The demand that Belgium should annex the Congo found support in Belgium also, where opinion had been aroused by the evidence of the atrocities committed in the Congo. Those who urged annexation did so on the ground that this would establish a responsible parliamentary government for the regions in question, and put an end to the abuses of uncontrolled and irresponsible exploitation of the natives for purely commercial purposes.

Although we do not find in the diplomatic correspondence any indication that the intervening governments intended actually to have recourse to force,⁸³ the language employed was of a nature to make Belgium understand that if it did not give heed to the emphatic protests of the intervening powers, and make an effort to reform the abuses in the Congo, the supervisory powers might call a conference, at which it was possible that they might either partition the Congo Free State, or place it under some other sovereign.

The Belgium Government also could not fail to understand that unless it put an end to the abuses in question, it would incur the condemnation of two powerful governments, and that the whole Belgian people would be pilloried as accomplices of the inhumanity of the Congo regime. It would be said that Belgium was really responsible for the continuance of the barbarous treatment of the aborigines. That the purpose of these representations was intervention, and not merely a proffer of friendly advice, is shown by the pains taken to give the action of the powers a collective form.⁸⁴ This is all the more significant in view of the traditional policy of the United States not to take part in joint representations of any kind.

Even though it is true, as the diplomatic correspondence shows, that the intervening governments constantly based their protests upon the failure of the Congo to fulfill treaty stipulations, the true ground of action was, nevertheless, humanitarian. This is shown by the articles of the treaty and by the references to traditional policy of the United States not to take part in joint representations of any kind.

Even though it is true, as the diplomatic correspondence shows, that the intervening governments constantly based their protests upon the failure of the Congo to fulfill treaty stipulations, the true ground of action was, nevertheless, humanitarian. This is shown by the articles of the treaty and by the references to humanity throughout the correspondence,⁸⁵ and by the emphasis which is laid upon the disinterested character of the American action.⁸⁶ If the United States had no national interest to serve, humanity stands forth as the sole ground of her intervention.

On March 10, 1908, Minister Wilson made the following report relative to the proposed treaty of annexation: "Referring to my No. 306, with which are transmitted copies and translations of the amended treaty of annexation of the Congo, the 'expose des motifs' of the ministry, and the royal decree suppressing the Foundation of the Crown, I have the honor to advise the Department that the results secured through the conclusion of this convention would appear to be such as should satisfy international opinion and allay the opposition which existed in Belgium to the project of annexation as conceived by the original treaty.

"The celebration of this treaty and its subsequent ratification by the Belgian Parliament will assure two definite and important results, which stand out clearly in the foreground.

"First, the Domain or Foundation of the Crown which is only another name for the regime implanted by the King in the Congo, which, it is alleged, is responsible for the conditions which have provoked international protest and action is suppressed, and the Sovereign's autocratic rule of these regions, through a system of secret bureaucracy, is ended.

"Second, the Government of the Congo, through a responsible ministry with parliamentary control of the budget, in accordance with a colonial law framed under the pressure of an active and vigilant Belgian, as well as international opinion, should make it certain that these regions, with the native population and vast natural resources, will be ruled and administered in harmony with the beneficent prescriptions of the Berlin and Brussels acts.

"Assuming that the treaty of annexation will be approved by Parliament, the first of these objects has been attained, and from the constitution of the committee of seventeen, and the evident temper of the dominant majority in Parliament which has doubtless been quickened in its conscience by the influence of public opinion in America and England the second will not be long delayed.

"It does not appear to me that the terms upon which Belgium acquires the Congo are of great importance from an international standpoint. "These are considerations which it would appear have to do only with Belgian interests. Our interest in the Congo question being purely humanitarian in character, we have been concerned only in the abolition of the regime which is held to be responsible for conditions repugnant to civilization and to the humanitarian spirit of this age, and in the substitution therefore of a constitutional government to be interpreted and executed in a spirit of benevolence and humanity.

"There was some dissatisfaction with the treaty when it was first laid before Parliament, owing to the apparent intention to give the King absolute control of the expenditure of the $10,000,000 voted to him in recognition of his work in the Congo.

"This objection, however, was met by a declaration of the prime minister that each annual installment of this sum was to be approved upon by Parliament, in accordance with the Belgian constitution.

"I am of the opinion that the treaty, as now submitted, will receive a substantial majority in Parliament, and that future consideration of the Congo question will relate to the character of the colonial law." (Foreign Relations, 1908, pp. 549-550. )⁸⁷

A recent intervention on the ground of humanity very similar to the intervention in the case of the Congo was undertaken by Great Britain and the United States because of the Putumayo atrocities in the rubber districts in the wilds of Peru.

The Department of State, as early as 1907, received from the American Consul at Iquitos information of the inhumane treatment of the Peruvian aborigines employed in collecting rubber in the Putumayo district on the upper Amazon.

The reasons which the Department of State considered as a sufficient excuse to intervene upon the ground of humanity were later stated by Secretary Knox when, on February 4, 1913, he transmitted for presentation to Congress the evidence of the atrocities which had been committed:

"This report," wrote Mr. Knox, "while exhibiting the condition of virtual slavery to which the native tribes were subjected, showed that the cruelties so disclosed were not the work of American citizens, nor affected American interests, and it would seem, did not call for representations to any of the three governments concerned in the disputed territory. Indeed, the prospect that the controversy as to the sovereignty in that quarter was about to enter on an acute state might have made it a delicate matter for a neutral government to impute territorial responsibility to any one of them." (Foreign Relations, 1913, p. 1242.)

Acting Secretary of State Wilson, in his instructions of April 6, 1912, to Mr. Stuart J. Fuller, American Consul at Iquitos, informs him of the subsequent events which had led the Department of State to reopen the American Consulate at Iquitos, and to undertake an investigation of the treatment of the aborigines in the Putumayo district. We quote this document in full:

"In arriving at the decision to reopen the American Consulate at Iquitos, Peru, the Department has had primarily in view the advisability of securing information as to the labor conditions along the effluents of the upper Amazon, and particularly the Putumayo River. Reports transmitted to the Department by Mr. Eberhardt formerly American Consul at Iquitos, during 1907 and 1908 indicated that those directing the gathering of rubber in the territory claimed by Peru to be within her jurisdiction were responsible for practices of exploitation of the native Indians which threatened the complete extinction of the primitive races. Subsequent to the receipt of the reports of Mr. Eberhardt by the Department the British Government, which was

in possession of information concerning the horrible condition existing in the forests of the Putumayo within the concession of a British corporation, directed His Britannic Majesty's Consul General at Rio de Janeiro, Sir Roger Casement, to make personal examinations of the situation. Previous to this time this government had been in consultation with the British Embassy at Washington, with a view to cooperation in representations to the Government of Peru in order that the Peruvian Government might undertake a thorough investigation of the subject and obtain such first-hand information regarding the brutal extermination of the native inhabitants of one of the important outlying Provinces of Peru as would impel it to take the remedial measures that the circumstances appeared imperatively to demand. Owing to the imminence during the early months of 1910 of an outbreak of hostilities between Ecuador and Peru because of conflicting claims of these countries regarding the territory of which the Putumayo region was a part, the Government of the United States at that time deemed it wise to postpone communication with the Government of Peru on the matter until the outstanding dispute, which it was then hoped was approaching settlement, had been terminated. It was felt that, the international situation having become tranquilized and the question regarding the title over the upper Amazon region decided, such representations as the Government of the United States might determine to make in the matter would more certainly produce the results which it was desired to bring about.

"During the early part of 1911 the Department was informed, through the British Embassy at Washington, that as a result of the efforts of the British Minister at Lima, acting under instructions from his government, the Peruvian Government had appointed a commission to proceed to the Putumayo region and report on conditions there found to exist. The Department, to which the cause of the defenseless natives of the Putumayo had so strongly appealed for humanitarian reasons, had received information from time to time of the views of the British Government in the matter and in regard to the steps which the British Minister at Lima had been instructed to take. During the months of April and May of the past year the British Ambassador at Washington transmitted, for the confidential information of the Department, copies of three reports of His Britannic Majesty's Consul General at Rio de Janeiro, which presented the horrible details collected by personal observation of the methods employed in the collection of rubber by the employees of the rubber company in the Putumayo district. These reports relate the appalling brutalities and atrocities from which the native rubber gatherers of the forest of the Putumayo were suffering. Copies of these pamphlets and other reports of more recent dates are attached for your information and for the files of the Consulate.

"On the 17th of July last the American Minister at Lima was instructed to express to the Peruvian Foreign Office, at a favorable opportunity, the pleasure that was felt by this Government upon learning of the steps initiated by Peru, inspired by the high ideals of serving humanity, to put an effective end to the excesses in the Peruvian rubber forests of the Amazon Valley by dispatching a judicial investigating commission to the Putumayo. The Minister was also directed to ex press the hope that adequate and vigorous measures would follow to put an end to the reported barbarous system in vogue, which threatened to accomplish the complete extinction of a defenseless people. It was at this time pointed out that Peru would undoubtedly understand the friendly spirit prompting a mention of this matter by the Government of the United States and would realize that there was no disposition or intention present to offend by referring to a matter concerning the internal affairs of Peru.

"It has subsequently developed from information before the British Government, that the action taken by the Peruvian Government in organizing this commission has almost entirely failed of its object. The corrupt influence of those responsible for the conditions in the Putumayo has been seemingly so powerful as to defeat the laudable ends of the Central Government. As a result a few of the underlings have been arrested while no serious effort has been made to apprehend or punish the leaders. It is alleged that the local administrative and judicial authorities residing at Iquitos have afforded such improper protection to those guilty of the atrocities systematically practiced upon the natives as to make it impossible to bring the criminals to justice without a thorough carrying out of drastic administrative local reforms. Unless the Central Government of Peru takes a vigorous and earnest stand it is to be apprehended that the practices which, it is understood, have been temporarily suspended as a consequence of the measures already taken by the Government, may be resumed in all their former intensity until the native tribes will have become completely exterminated.

"The Department has been in recent close communication with the British Foreign Office, following several personal conferences with Sir Roger Casement at the Department. It appeared that the British Government was seriously contemplating the publication of the evidence on the Putumayo in its possession in the belief that such publicity might provide an effective remedy to the shocking situation. However, at the suggestion of this Government, the publication of the reports was withheld pending further representations to the Government of Peru on the subject. The Department therefore, informed the American Minister at Lima of the apparently well-founded rumor that no really serious efforts are being made to prosecute those responsible for the atrocities in the Putumayo, and to instruct the Legation to cooperate with the British Legation in taking the matter up again unofficially and informally with the Peruvian Minister for Foreign Affairs. In these representations the American Minister was directed to advise the Government of Peru that it was understood that the official reports on the situation in the Putumayo probably could not be withheld much longer from publication, the details of which inevitably would be exploited in all parts of the world by the press. The American Minister was directed to say that unless drastic and effective action demanded by the circumstances was taken by Peru previous to the publication of this evidence, which appeared imminent, such an exposure of the situation as almost surely must follow might induce public opinion of the world to believe that Peru had shown herself unable effectively to exercise sovereign rights over a region to which Peru lays claim and the ultimate rights to (sic) which Peru desires to submit for determination to arbitration.

"The British and American representatives at Lima had a conference during the early days of February with the Peruvian President and Minister of Foreign Affairs. The Peruvian Government stated that it was endeavoring by all means within its power to bring to justice those charged with the crimes in the Putumayo, and welcomed suggestions as to a system of reforms which would guarantee adequate protection to the Indians within its jurisdiction. The difficulties of the problem presented to the central administration were emphasized the unsatisfactory communication between Lima and Iquitos; the difficulty of finding men worthy of being entrusted with the administrative functions in that outlying region; the barrier presented by the topographical character of the wild region of the upper Amazon; and the almost absolute impossibility of counteracting the influence of those identified with the continuation of the present iniquitous system.

"Under the circumstances at present existing and after careful consideration of the reports which were received from the American Legation at Lima and the information transmitted by the British representative, kindly furnished through the British Embassy here, the Department has informed Ambassador Bryce that it deferred to the judgment of the British Government in fixing the time for the publication of the Casement reports. The Embassy at the same time was informed that the Department could not but believe that the Peruvian Government should properly regard any publicity given to the matter as in accord with the purposes so frequently enunciated by the Peruvian Government of doing everything within its power to put an end to the inhuman treatment of the Indian populations. Further, it was felt by the Department that the publication was strongly recommended in view of the efforts that are being made to procure funds by public subscription making it possible to establish in the Putumayo region missions for work among the Indians. The British Government now states that it will proceed with the immediate publication of the reports in its possession regarding the situation of the Putumayo.

"You will make yourself thoroughly conversant with the local situation upon arriving at your post and keep the Department fully and promptly informed regarding this subject, in which the Department is taking the keenest interest.

"You will, upon consultation and cooperation with the British Consul at Iquitos, make arrangements to visit, at intervals which may in your judgment appear advisable, the rubber stations along the Putumayo region in order that the Department may have before it your views, based upon personal observation. For this purpose a special allowance of not to exceed $500 is hereby granted you." (Foreign Relations, 1913, p. 1243-6.)

The method and object of the investigation by Mr. Stuart J. Fuller, the American Consul at Iquitos, are given in his report of July 31, 1912, as follows:

"When I have been asked, and a reply seemed necessary or politic, I have stated that I have neither desire nor instructions to interfere in any way whatsoever with the administration of justice or the internal affairs of Peru, but that in the course of duty it falls to me as a consul to keep my Government informed as to labor as well as other commercial conditions in the district in which I may be stationed, no matter what part of the world, and that I shall report on these in the Putumayo as well as in the other rivers of the district; and that as public subscriptions are being collected abroad by persons with the same high ideal of serving humanity that has actuated the Peruvian Government in the steps it has inaugurated to put an end to excesses in the Putumayo region, for the announced purpose of sending missionaries to that region, information is desired as to the condition that American citizens coming on this mission may meet with and the conditions under which the money will be expended."⁸⁸ (Foreign Relations, 1913, p. 1263.)

In the same report, Consul Fuller says of the concurrent investigation by the British Consul, Mr. George Babbington Mitchell, who accompanied him:

"My British colleague has based his action in the matter on four grounds:

"1. The responsibility of an English company, still in existence though in process of liquidation, for the atrocities in the past and their share in the responsibility for conditions in the present.

"2. The presence in the region of British subjects.

"3. The collection in Great Britain of subscriptions with the object of sending missionaries o the region.

"4. The general idea of serving humanity by reporting to his government the true conditions, to be published if they see fit." (Foreign Relations, 1913, p. 1263.)

The Peruvian Government and the companies in control of the rubber district put what obstacles they could in the way, to prevent the consuls from procuring from the natives themselves full information of the actual conditions in the district.⁸⁹

From the reports of Consuls Eberhardt, Fuller, Mitchell, and Casement, the prevalence of horrible conditions in the Putumayo district was established beyond any possibility of doubt.⁹⁰

We do not wish to dwell upon the appalling brutalities to which the Peruvian aborigines were subjected. Consul Eberhardt, in his report (1907) explains how the indebtedness of the Indians for the food which was supplied them resulted in a system of peonage, and these peons, held in a bondage of debt, could be transferred from one employer to another. If the poor Indian attempts to run away, he is tracked in the forest by hostile Indians who bring him back, dead or alive. Consul Eberhardt relates all manner of cruelties practiced upon these peons: the beating and kicking of Indian women, the dashing of a baby's brains against a tree because it "… seemed to interfere with her [the mother's] bringing in a sufficient amount of rubber..," the disemboweling of a pregnant woman with the stroke of a sharp machete, and other horrors of a similar nature. (Foreign Relations, 1913, p. 1247-9. Cf. Ibid, p. 1242-4. See also "Slavery in Peru," House Document No. 1366, 67th Congress, 3rd Session.)

Testimony of similar atrocities are published in the reports of the other consuls.

Consul Fuller gives the following account of the labor situation in Peru: "In the second place, for a full comprehension of the existing situation it is necessary to examine into the general labor situation throughout this part of Peru. An important factor in this phase of the situation is found in the ancient, deep-rooted, and almost universal attitude of the Peruvians, who, while they may not approve of cruel and inhuman treatment, generally regard the Indians as placed here by Providence for the use and benefit of the white man and as having no rights that the white man need respect.

"This attitude of the people has found concrete expression in the universal system of peonage, an old institution, well established, recognized by law, and which has come to be the basis on which the rubber business (the sole industry of trans-Andean Peru) almost entirely rests. The system of advancing supplies, necessities and luxuries, to peons and rubber gatherers is universal in this part of Peru and has led to the establishment of what is virtually a slave trade. The trades encourage the "patrons" operating rubber sections to continually enlarge their spheres of operations, so that they will have more rubber to sell and can buy more imported goods. Labor being comparatively scarce and expensive throughout the district, it is to the patron 's interest to get those working for him hopelessly into his debt, which means that he can retain their services as peons until they pay this off. It is difficult to maintain that this system of servitude is not recognized, since it is universal and, while never discouraged by the authorities, is certainly in many cases upheld.

"It simply means that the native who is unable to pay for the advance he has been encouraged to take is seized by the patron who designedly advanced him more than he could pay for, and is compelled to work off the debt. As he must be lodged and fed in the meanwhile, the cost of this is added to his old debt, and, by further advances, care is taken to keep the debt at a point where it can never be overtaken. As these claims are transferable, the person of the debtor being also transferred to the new creditor, the Indians and their families are really bought and sold, passing from hand to hand under a system that bears a striking resemblance to actual slavery." (Report of Oct. 28, 1912, Foreign Relations 1913, pp. 1251-2.)

The Indians are, according to Consul Fuller 's report, "... mild, docile, inoffensive, and childlike, just as they are reported to have been by Robuchon the explorer, by Consul Eberhardt, and by Sir Roger Casement." (Foreign Relations, 1913, p. 1269.) He remarks, "I doubt whether they know the difference between proper treatment at the hands of the whites and maltreatment, for the simple reason that the first idea of the white man they had was bad usage. In case of any trouble they would not be likely to appeal to the authorities. They would not understand how, and they have no conception of government. The only way to protect them is to watch over them and their interests." (Ibid, p. 1269-1270.)

In his report of October 28, 1912, Consul Fuller remarks: "As to the past, the truth is that the district was the ash barrel of both Peru and Colombia, and the concessionaires, though cognizant of this, were so anxious to make money that they took into their employ without investigation any of the ashes who professed a willingness to work. The deplorable result is already known to the Department. It was due to the criminal negligence of the Peruvian and British concerns, who in turn controlled the district, and the total absence of Government supervision. The British directors who entrusted the conduct of their business here entirely to Peruvian hands cannot rely on that as relieving them from responsibility in the matter." (Foreign Relations, 1913, p. 1278).

After it was evident that the Peruvian Government would not undertake any adequate measures of reform from sentiments of humanity, the hope seems to have been entertained that the fear of losing the territory in question might stimulate the zeal of the Government, and check the gross outrages committed by the agents of the companies upon the aborigines. (Ibid, p. 1245, p. 1273-4.)

Peru was given to understand that her claim to the sovereignty of the regions in question might be impeached with success by the other claimant governments if it were admitted that Peru could not police the territory to which she laid claim. (Ibid, p. 1245.)

For the purpose of bringing the pressure of public opinion to bear upon Peru, the British Government had proposed to publish the Casement report containing evidence of the atrocities committed in the Putumayo district, and after the American Government withdrew its objections, a blue book was issued, July, 1912.⁹¹ The London Times, in an editorial of July 15, 1912, commented severely upon the atrocities revealed in this publication (Foreign Relations, 1913, p. 1240).

The House of Representatives took notice of this statement, and in a resolution of August 1, 1912, directed the Secretary of State, "if not incompatible with the public interest, to transmit to the House of Representatives all information in the possession of his Department concerning the alleged existence of slavery in Peru, and especially all information tending to show the truth or falsity of the following statement made in an editorial in the London Times of July fifteenth, nineteen hundred and twelve: 'The bluebook shows that in an immense territory which Peru professes to govern the worst evils of the plantation slavery which our forefathers labored to suppress are at this moment equaled or surpassed. They are so horrible that they might seem incredible were their existence supported by less trustworthy evidence." (Foreign Relations, 1913, p. 1240.)

In response to this resolution, Secretary Knox transmitted the correspondence and documents from which we have been quoting in the preceding pages.

February 6, 1913, Ambassador Bryce addressed the following note to the Secretary of State:

"Sir: With reference to previous correspondence relative to the Putumayo atrocities, I have the honor to transmit to you, herewith, two copies of a dispatch from His Majesty's Consul at Iquitos reporting on the recent visit to the Putumayo district, which he carried out in the company of the United States Consul, Mr. James Fuller.

"In communicating this report to you I am to ask you to be so good as to furnish His Majesty's Government with a copy of Mr. Fuller's report on the visit and to favor me with the expression of your views on the general question and on the action which the two Governments should or can now take.

"I am also to inform you that in the opinion of His Majesty's Government the Peruvian Government should be given an opportunity of offering any observations they may desire to make on the reports of the two Consuls before these reports are published." (Foreign Relations, 1913, pp. 1287-8.)

In his reply, Secretary Knox said :

"Before transmitting this correspondence to the President, the Department of State conferred with the Peruvian Minister, apprizing him of the general tone of Mr. Fuller's findings. Mr. Pezet thereafter described the measures recently adopted by the Peruvian Government with a view towards ending the mistreatment of the Putumayo Indians and made renewed assurances, on behalf of his Government, to the effect that it would henceforth rigorously enforce law and order throughout the rubber-producing district of Peru.

"In your Excellency's note under acknowledgment you were good enough to ask for an expression of my views regarding the Putumayo question and the action now called for thereon. In reply I may say that, in view of the rigorous policy apparently animating the present administration in Peru, the remoteness of the district and the attendant obstacles in the way of effective reform I am of the opinion that any further action on the part of His Majesty's Government or of the American Government would appear inopportune, at least at the time being, inasmuch as it might be instrumental in stirring up public sentiment in Peru to such an extent as to hinder whatever real desire now exists there for bettering the conditions under which the Indians labor." (Foreign Relations, 1913, p. 1288.)

Again on September 10, 1913, the British Ambassador, Sir Cecil Spring Rice, wrote the Secretary of State:

'"On February 25 Mr. Knox forwarded to my predecessor a Congressional document containing, among other correspondence regarding the Putumayo question, the report of the American Consul at Iquitos, Mr. Fuller, on conditions in that region of Peru.

"I need not recall to your mind the particulars of this question which has engrossed the attention of our two governments for the last two years, but I have now been instructed by Sir E. Gray to inquire what conclusions you have arrived at in regard to Mr. Fuller's report.

"I should therefore be much obliged if you could give me your views on the question and could indicate to me the policy which you think it best to adopt in the present position of affairs." ( Foreign Relations, 1913, p. 1289.)

No further action is disclosed in the correspondence published in Foreign Relations for 1913, recently published by the Government. For some reason not stated in the correspondence, the Department of State at that time was unwilling to cooperate with Great Britain in undertaking a humanitarian intervention which would have had a salutary effect upon Peru and other countries which, in violation of international law, condone and protect the perpetrators of atrocities upon defenseless aborigines.

Several decades before slavery itself was recognized as contrary to international law, the slave trade was held to be illegal by a consensus of opinion on the part of the powers who undertook measures of cooperation for its suppression.⁹² The willingness of the great powers to intervene to suppress the slave trade has been shown upon several occasions. Layard, the British Ambassador at Madrid, when approached by the American representative in regard to humanitarian intervention in Cuba, expressed a readiness to support the views of the United States, saying that England also had abundant cause to intervene in Cuba on account of the slave trade (Callahan: Cuba and International Relations, 1899, p. 423).

At the close of his career in 1864, Lord Palmerston, then Prime Minister, wrote the following letter to Sir John Crampton, the British Ambassador at Madrid: "I have been reading your account of your representation to the Spanish minister about the slave trade, carried on for the supply of Cuba. Your arguments are perfectly just, and your statements are all borne out by facts. If you have occasion to talk with him again on these matters, you may say, as a proof that the feeling against the slave trade is not confined in England to enthusiasts and West Indian proprietors, that there are no two men in England more determined enemies of the slave trade than Lord Russell and myself, and certainly we are neither of us bigoted enthusiasts nor West Indian proprietors, but we have both labored assiduously and with much success for the extirpation of that abominable crime.

"During the many years that I was at the Foreign Office, there was no subject that more constantly or more intensely occupied my thoughts, or constituted the aim of my labors ; and though I may boast of having succeeded in accomplishing many good works and among them materially assisting the Spaniards to get rid of their tyrannical dynasty, and to establish Parliamentary Government yet the achievement which I look back to with the greatest and the purest pleasure was the forcing the Brazilians to give up their slave trade, by bringing into operation the Aberdeen Act of 1845. The result, moreover, has been greatly advantageous to the Brazilians, not only by freeing them from a grievous crime, but by very much improving their general condition..." ⁹³ (The Life of Viscount Palmerston, by Evelyn Ashley, II: 263-4).

In 1862-1864, the British Government intervened to prevent the importation into Peru of Polynesians as laborers under conditions of extreme cruelty approximating a condition of slavery.

The British Minister, in his report of May 29, 1863, enclosed a copy of a declaration of the Diplomatic and Consular body at Lima, in regard to the abuses committed on the Polynesians. The declaration as translated into English read as follows :

"The Diplomatic and Consular Corps resident in Lima met on the 13th of May, 1863, in this

city, and declared :

"1. That the Diplomatic and Consular Corps deplore as deeply as the Government of Peru, the horrible abuses committed in the Polynesian Islands by expeditions that tried to obtain laborers, in violation of the laws and of the licenses given to bring those laborers to this Republic.

"2. That they are happy to express their satisfaction at the suitable measures taken by the Government of Peru to prohibit said traffic, carried on in violation of the laws and of the licenses conceded.

"3. That they are also happy to assure their respective Governments, that the measures taken by the Government of Peru have supported morality, justice, and humanity.

"In continuation, they decided that this act be copied in the records of the diplomatic corps, and that after being signed, a copy be presented to his Excellency the Minister of Foreign Affairs and President of the Council of Peru, by the Charges d'Affaires and Consuls-General of France and the United States of Colombia ; every member of said corps, moreover, sending a copy to his own government."

"(Signed)

CHRISTOPHER ROBINSON, Envoy Extraordinary and Minister Plenipotentiary of the United States of America.

THOMAS ELDREDGE, Chargé d'Affaires and Consul-General of Hawaii.

EDMUND P. DE LESSEPS, Chargé d'Affaires and Consul-General of France.

WILLIAM STAFFORD JERNINGHAM, Chargé d'Affaires and Consul-General of Great Britain.

JUAN DUARTE DA PONTE RIBEYBO, Chargé d'Affaires of Brazil.

PBOSPERO PEREIRA GAMBA, Chargé d'Affaires and Consul-General of the United States of Colombia.

CELEDONIO URREA, Chargé d'Affaires of Ecuador.

J. CANEVARO, Consul-General of Italy.

W. BRAUNS, Consul-General of Hamburgh.

G. ESCARDO, Consul-General of the Argentine Confederation.

A. EVARISTO DE ORNELLAS, Consul-General of Portugal.

J. GILDEMEISTER, Consul-General of Bremen.

A. GREULICH, Consul of Frankfort.

TH. MULLER, Consul of Prussia and Hanover.

F. OYAGUE, Consul of Venezuela."

In the form of a congratulation that the system had been abolished, this declaration evidently was intended to register a formal disapproval of the traffic. Notwithstanding this, the British Charge, in the same note in which he enclosed the declaration above given remarked: "None of these being British subjects, I do not see how far I am authorized in interfering except by moral reprobation of acts evidently inhumane in their consequences, and which ought to be properly punished by those to whom it legally pertains to inflict the deserved castigation." But the British Minister for Foreign Affairs took a different view. Lord John Eussell in his instructions of March 18, 1864, wrote: "In your dispatch of the 12th May last you enclosed to me a note from the Peruvian Government, stating that that Government had abolished the system which had been adopted for the introduction into Peru of natives of the Polynesian Islands, and which had given rise to such horrible abuses.

"I received this intelligence with satisfaction, and approved of the steps taken by you in carrying out the instructions which you had received from me in the matter.

"You will continue to bear the subject in mind, as it is not impossible that, although the system has been abolished, steps may be taken indirectly to carry out the objects contemplated by the parties concerned, thus causing fresh evils and crimes. In such case, it will be your duty again to remonstrate on the part of Her Majesty's Government, and I shall be glad to learn that your diplomatic and consular colleagues have cooperated in your representation." (Parliamentary Papers, 1864, vol. 66 [3307].)

In 1888-89, the European powers instituted a pacific blockade of the coasts of Zanzibar, generally stated to have had the purpose of preventing the exportation of slaves (see T. E. Holland: Studies in International Law, p. 139-140 ; Hogan : Pacific Blockade, p. 130-137.)

But P. L. McDermott, an official of the British East Africa Company gives the following account based upon the official documents and his own knowledge of the events recorded: "An important consequence of the troubles on the German coast was the establishment by Great Britain and Germany of a joint blockade of the mainland coast of the Zanzibar dominions ostensibly 'against the importation of arms and the exportation of slaves.' In a despatch from the Foreign Office, dated November 1st, Colonel Euan-Smith was informed 'that Her Majesty's Government had agreed with that of Germany, in view of the rebellion against his (the Sultan's) authority which had broken out on the mainland under the influence of the slave-dealers, to establish, in conjunction with his Highness, a blockade over the coast of his continental dominions, in order to cut off the importation of munitions of war to his insurgent subjects, and to put a stop to the exportation of slaves.* This diplomatic phraseology, however, obscured the main object of the blockade as well as the causes which gave rise to it. The rebellion had broken out, not against the authority of the Sultan, but against that of the German Company, and had no connection indeed had not before been alleged to have any connection with the business of the slave-dealers. Nor, indeed, from the antecedent attitude of German subjects on the mainland (between whom and their Government natives could not be expected to distinguish) towards slavery and the slave trade was there any reason for the slave-dealers to apprehend much interference with their special traffic as a consequence of the establishment of German administration."⁹⁴

Even before the states of Europe had formally recognized the illegality of slavery itself, they had given evidence, by their practice of granting asylum to fugitive slaves, that they did in reality so regard it.

The Act of Brussels, relative to the African Slave Trade, was signed July 2, 1890, by the representatives of the principal powers and the states most concerned in the slave trade. The preamble declared the purpose of the stipulations of the convention as follows:

"Equally animated by the firm intention of putting an end to the crimes and devastations engendered by the traffic in African slaves, of effectively protecting the aboriginal populations of Africa, and of assuring to that vast continent the benefits of peace and civilization;

"Wishing to give a fresh sanction to the decisions already taken in the same sense and at different periods by the powers; to complete the results obtained by them; and to draw up a collection of measures guaranteeing the accomplishment of the work which is the object of their common solicitude; …."

In one hundred articles, provision is made for carrying out these humanitarian aims of the signatory powers.

This important convention has been of great service in facilitating the cooperative action of the powers in putting an end to the ancient and accursed traffic in slaves.⁹⁵

The illegality of the institution of slavery under international law has not been recognized as clearly as has the illegality of the slave trade. All the great and all the civilized states have, it is true, abolished slavery from their territory until it is now at last restricted to Turkey, Persia, and a few minor Mohammedan States; but slavery of itself has not even yet been formally declared to be contrary to international law. It is still tolerated in those backward countries either because it would not be for the best interests of the population, including the slaves, to eliminate it forthwith, or because the powers have been deterred from extirpating it by the expense, or by the political consequences of the reform. Nevertheless, we may safely affirm that slavery to-day is contrary to international law, and a justifiable ground for humanitarian intervention, whenever the powers are assured that such action is practicable.⁹⁷

Although the great states have not intervened with force of arms to put an end to slavery, they have had recourse to a limited, we might say a negative form of intervention which has consisted in granting to fugitive slaves an asylum on their warships.

More than two centuries ago, we find isolated instances of such asylum, which were then, strictly speaking, violations of the law of nations, although they were morally justifiable as protests against a law out of harmony with the humane sentiments professed by all civilized states.

Richard Hill, envoy to the Duke of Savoy, in a letter from Genoa, dated January 10, 1705, writes: "Sir, it is a great mortification to me, and to all the Queen's officers here, to see one of the Queen's subjects, and a warrant officer in the fleet, in chains in the Duke of Tursis's galleys. This poor man was gunner of the Newport, and being deluded and invited into a galley, was chained to an oar, and being treated like a slave, because one of the Duke of Tursis's slaves had deserted, and saved himself aboard one of the Queen's ships. I have been negotiating this poor man's liberty ever since I am here, but as yet without success." (Correspondence of Richard Hill, ed. by W. Blackley, Lon don, 1845, Vol. II, p. 676-7.) It appears from the correspondence that the fugitive slave above referred to was treated as a deserter, and at the first port touched at was given his liberty and a passport to go whither he wished.

In the course of time, the slave trade was abolished, and the great states either directed their officers to grant fugitive slaves an asylum, or authorized them to use their discretion. Sir George Campbell was correct in his statement, made in 1876, that the granting of asylum was in conformity with "the great majority and weight of opinion of the most important countries."⁹⁸

In 1876, public opinion was deeply stirred to learn that the instructions issued to naval officers authorized them, when in foreign ports of slave holding states, to deliver over to the local authorities slaves who had sought an asylum under the British flag. The consequence was that Disraeli's Government appointed a remarkable commission of statesmen and jurists to investigate and report upon the matter.

This Royal Commission on Fugitive Slaves, in the course of their report, stated: "It may, we conceive, be safely affirmed that a ship of war entering the waters of a friendly state is by the common practice of nations regarded as exempt, speaking generally, from the jurisdiction of the local authorities, and is at the same time under an international obligation, speaking generally, to respect the local law. "We are unable, however, to report that the extent of the immunity on the one hand, or the limits of the obligation on the other, have been so clearly and completely settled by international usage that they can be stated with absolute confidence and precision. There is room for a difference of opinion with respect to them, and such a difference of opinion exists. In like manner, with reference to the principles of international law applicable to the reception of fugitive slaves, a difference of opinion exists, ..."

In view of this difference of opinion, the commission considered it best "to refrain from attempting a definition." Instead they concurred in certain recommendations and they expressed their belief that if these recommendations were adopted" the measures necessary for giving effect to them would not afford reasonable cause of complaint to foreign countries."

The report then discusses the practice of other nations with reference to the reception of fugitive slaves. Portugal and Holland surrendered them; Italy and Germany apparently did not; while the Secretary of the Navy of the United States gave as his opinion "that at present, no officer would for a moment think of giving up a slave who had taken refuge on board his vessel in order that he might return to his condition of slavery."

The French and Russian officers were allowed a wide discretion and responsibility. From evidence laid before the Commission, it appeared "that in former years Britain's naval officers deemed themselves entitled to exercise a wide discretion with reference to cases of slaves seeking refuge on board their ships." Of late years, the Commission found that this discretion had been limited, but that the instructions issued had "materially varied in character."

Coming to the main point, that is, "in what cases a slave ought to be retained on board a ship," the Commission reported: "Naval officers should be instructed that although ships of the Royal Navy should not be made a general asylum for fugitive slaves, they are not debarred from using their own discretion in retaining such fugitives on board and affording them protection on the principles which we shall proceed to recommend for their guidance."

"In the exercise of this discretion, the officer should be guided, before all things, by considerations of humanity. Whenever in his judgment humanity requires that the fugitive should be retained on board, as in cases where the slave has been, or is in danger of being cruelly used, he should retain such fugitive."

The fourth of the recommendations which the Commission made in the belief they would indicate "the best course to promote the humane and enlightened policy" which Great Britain had "consistently pursued" with a view to the mitigation and eventual abolition of slavery is a repetition of what has been quoted: "In dealing with this question, the officer should be guided, before all things by considerations of humanity. Whenever, in his judgment, humanity requires that the slave should be retained on board, as in cases where the slave has been, or is in danger of being cruelly used, the officer should retain him. In other cases he should do so only where special reasons exist." (Parliamentary Papers, 1876, vol. 28, Report of the Royal Commission on Fugitive Slaves [c.-1516] p. XVIII.)

In the other recommendations of the Commission there is evident the same humanitarian purpose, and the same evident intention to authorize the naval officer to intervene to the extent of affording an asylum when necessary to protect the fugitive slave from inhumane treatment.

On the other hand, the report states : "Naval officers should understand that, whilst entrusting them with this discretion, their government does not claim a right to interfere actively with the institutions of slavery in countries where it is upheld by the local law, ..." and in another place the Commission emphasized the inconvenience which would result from such an attempt, and they consider that "... it must always be remembered that states within whose territories slavery continues to exist can refuse to admit British ships of war into their ports and waters, should they deem this extreme measure necessary to the protection of national or private interests."⁹⁹

The distinguished group of jurists who signed the Report on Fugitive Slaves recommending that the British officers should be authorized to offer an asylum when necessary to prevent the cruel treatment of the fugitive slave believed apparently that the granting of this asylum would be a violation of "the theory of international law."¹ But like practical Englishmen, they threw over their theory when it proved embarrassing.

If the Commission were right in adhering to the theory of the perfect right of every state to do as it deemed best within its own territory, then Lord Chief Justice Cockburn, a member of the Commission, was consistent in refuting the conclusion that the "harboring" of a slave "was not a violation of the local law,"² and we can sympathize with the separate opinion expressed by six distinguished members of the Commission,³ that Great Britain had "no right to force its own laws on an independent state, nor (except in such extreme cases as those hereinafter referred to) to authorize its subjects to violate the law of the latter because it disapproves of that law …."

Following out consistently the theory that each sovereign state was supreme within its jurisdiction, they were logical in considering that "although slavery had happily become abhorrent to the British nation, and has been abolished in British territories, yet the rights conferred upon the owners of slaves by the laws of their own countries have been, on more than one occasion since the abolition of slavery by this country, recognized and enforced by English courts of justice. Upon this fact, as well as upon the principles of international law, we think that the commanding officers of British ships of war, in foreign territorial waters would do wrong if they afforded protection to all slaves indiscriminately who might be found on board their ships."

But in the conclusion which they reach, and in the recommendation with which they concur the Commissioners desert logic, and declare that "a rigid adherence to that theory by the commanding officers of British ships in foreign territorial waters, in all cases what ever, would be neither practicable nor desirable." (5th Recommendation, quoted in the preceding note.) It would seem that a theory of international law, the observance of which in so important a matter was neither practicable nor desirable, should be modified and be made to recognize that humanitarian intervention is a just ground for overriding local regulations when the latter are not in conformity with those principles of justice which are recognized and enforced by all the civilized states.

Sir Robert Phillimore, Professor Mountague Bernard, and Sir Henry S. Maine, three international jurists of high repute, who were members of the Royal Commission on Fugitive Slaves, did not adopt the reasoning of the Commission, although they signed the report and joined in approving the recommendations which it contained. They filed a separate opinion expressing their conviction that the officer who gave an asylum to a fugitive slave would not violate international law, nor the local law to which he could not be considered as subjected. The importance of this opinion justifies us in laying it before the reader:

"We should have been content to sign the report without expressing any opinion, beyond what is contained in it, on the first question. But since it has been thought right that opinions should be expressed on that point, we will state the considerations which in our view justify, so far as international law is concerned, the conclusions of the report, confining ourselves to such considerations, and not entering into a detailed examination of precedents or authorities.

"At the same time, we think that a careful and discriminating examination of such authorities would support the views we are about to express.

"The question is substantially this: what instructions the government may, without doing violence to any international obligation, give to its officers respecting the reception of fugitive slaves in foreign waters!

"[I] It is true, as a general proposition, that a naval officer, entering with the ship under his command the waters of a friendly state, ought to respect the local laws, and to refrain from lending his assistance to any violation of them. It is right that he should receive instructions to this effect, and such instructions British officers now receive. They are directed by the Queen's Regulations to 'cause all those under their orders to show due deference to the established rights, ceremonies, customs, and regulations' of the places they have occasion to visit; and they are prohibited in general from receiving on board, whilst lying in the ports of a foreign country, persons who may seek refuge for the purpose of evading the local laws to which such persons may have become amenable.

"The foregoing proposition, however, is only a general expression of what, in given circumstances, one maritime state may fairly and reasonably expect at the hands of another ; and it would be an error to regard it as a canon of international law, absolute, inflexible, and admitting no qualification. It admits, and indeed requires, at least one material qualification. Where the execution of the local law would be plainly repugnant to humanity or justice, the sovereign with whose commission the ship sails cannot reasonably be held bound to instruct his officers to enforce the law, or permit it to be enforced, on board of her. He may rightly instruct them not to enforce it there, and not to permit it to be enforced."

"It is a general assumption, on which governments must habitually act, that the laws of civilized states, framed to secure public order and private rights, will not so operate as to be in conflict with humanity or justice. But this general assumption must and does sometimes give way, whether from the necessary imperfection of human laws, or from particular defects which cannot be immediately removed in the institutions of particular states, or from real differences of national sentiment as to what is humane or just differences which the progress of civilization, tending though it does continually to produce a general uniformity, has not yet entirely effaced. In cases of this kind, which though exceptional, are by no means rare it is not a sufficient answer to point to the local law and to the sovereign authority which enacted it. Where British subjects are interested, this country deems it no infringement of an international obligation to insist, against the local law, on its own view of what justice or humanity demands, and even, if need be, to exact redress by force. Where no British interest is involved, the British Government has the right to say at least that the authority delegated by it to its officers shall not be used to do what is plainly inhuman or unjust.

"This qualification of the general rule is demanded by the national self-respect of every state which commissions a ship of war; and it is consistent with the ordinary principles on which the intercourse of civilized states proceeds.

"That there is no unqualified obligation to assist or permit on board a ship of war the enforcement of the local law is assumed in the instructions which British naval officers receive with regard to political refugees, and has been assumed in the cases where, before the issue of those instructions, the refusal to give up a refugee has been approved by the British Government.

A political refugee may be an object of partisan rancor and passion ; but he is also commonly a criminal in the eye of the local law, the administration of which is in the hands of a government inimical to him.

"Laws which uphold slavery are local not only in the sense that they have legal force in particular countries, but in the further sense that they create a status not recognized in other countries. The right to own a slave as property in a slave-holding country may be recognized elsewhere, and it has been recognized in English courts of justice; but the right to compel the obedience of a slave cannot be enforced in any place where slavery is not legal. But this is far from being the whole account of the matter, though it may perhaps be all that a court of law could properly take notice of. The state, in judging what instructions (as between itself and other states) it may rightly give to its officers, is not confined to the considerations which might be urged before a court of law. Slavery is not only an institution of this strictly local character, but, so far as it operates to keep human beings forcibly and against their will in the condition of mere objects of property, is regarded by nearly the whole of Christendom as repugnant to justice. In, Brazil and Cuba it survives only because the total and immediate abolition of it involving, as this would, the destruction of a large mass of proprietary rights has not hitherto been found practicable. The deliberate conviction of Great Britain on the subject has been shown in many ways, by her legislation, by the sacrifices she has undergone, by the uniform and unremitting exertions of her Government. It is an institution also which, from its nature, cannot by any restraints of law or custom be so regulated and controlled as to prevent it from sometimes operating in ways repugnant to humanity, and that not alone by the infliction of mere bodily suffering.

"International law, it is to be observed, is not stationary; it admits of progressive improvement, though the improvement is more difficult and slower than that of municipal law, and though the agencies by which change is effected are different. It varies with the progress of opinion and the growth of usage ; and there is no subject on which so great a change of opinion has taken place as slavery and the slave trade. Bynkershoek, in one of his latest works, published in 1737, maintains that, as a conqueror may in the exercise of an extreme right do what he pleases with his captive, he may, though the practice has fallen into desuetude, put him to death, or, as a consequence of that right, may sell him into slavery. (Quaest, Juris Publici, Bk. i. c. 3.) Such a doctrine would now be held not merely unlawful, but atrocious; and the trade in negro slaves, which was formerly competed for as a legitimate source of profit, has in a great number of treaties been assimilated to the crime of piracy."

These considerations are sufficient to justify Great Britain in instructing her officers not to enforce slave laws, or permit them to be enforced, on board her ships of war in foreign territorial waters, either altogether or in particular circumstances in which the claims of humanity or justice assert themselves more plainly and imperatively than in others. Which of these two courses she should adopt may be a question of prudence, and perhaps also of humanity itself; but we do not think it can be solved by reference to a positive rule of international law. Against either of them slave-holding states have, as is pointed out in the report, an extreme remedy in the power of excluding British vessels from their ports. But in exerting that power, should they deem it necessary to do so, they would be protecting themselves or their subjects, not against a violation of international law, for there would be none, but only against apprehended loss.

"It is difficult, no doubt, in practice, to draw with theoretical precision the line of demarcation between an active interference with slavery and the refusal to enforce the master's right over his slave. An officer who declines to give up a fugitive does to some extent interfere with the local institution of slavery. He not only protects from injury, but takes away from the slave-owner, the terrified man or helpless girl who by the local law is a marketable object of property; and it makes little practical difference - to the owner none - whether the slave has scrambled on board with the officer's leave or without it. But in these cases it may fairly be said that he interferes no more than he inevitably must unless he is to be actively instrumental in forcing the fugitive back into slavery; if he were to go further, to incite slaves to escape, hold out to them inducements to do so, or use force or contrivance to liberate them, this would be an interference of a different kind. In the Recommendations of the Report this distinction is kept in view, and an officer who should be careful to observe it would find little difficulty in doing so."

Turning next to a careful consideration of the juridical situation of public vessels in foreign ports, the separate statement of opinion concludes as follows:⁴

"[III.] In conclusion, we are of opinion that Her Majesty's Government may, without transgressing any international obligation, give such instructions to officers commanding Her Majesty's ships with respect to the disposal of fugitive slaves who may seek refuge on board their vessels as the Government may judge most consonant to humanity and prudence.

"Officers acting on such instructions would be responsible to the authority from which they received their orders, and would not be responsible to the foreign territorial authority.

"Her Majesty's Government could not deny to any foreign Sovereign the right to interdict the entrance of British ships of war into his ports, although it might not admit that the exercise of the right was under the circumstances necessary or reasonable, and might indeed, should it think proper to do so, reciprocally exclude from its own ports the vessels of any Power which had recourse to this measure."

Slavery has given rise to other passive or negative forms of intervention. The cooperative action of extradition has sometimes been refused in the case of slaves. The case of John Anderson is an example of this form of humanitarian intervention.

"In September, 1853, John Anderson, a negro slave, born in the United States, ran away from his master. About three weeks later, he met and spoke to a planter named Diggs, who recognized him. Anderson asked Diggs where Charles Givens lived, saying he belonged to M 'Donald, and wanted Givens to buy him that he might be near his wife. Diggs charged him with being a runaway slave, and refused to let him go. The law of Missouri declared that any slave found more than twenty miles from his home should be deemed a runaway, and that any person might apprehend a negro being, or suspected of being, a runaway; and it provided a reward for so doing. Diggs, however, told Anderson to come and get his dinner, and he would then go with him to Givens. On the way, Anderson tried to make his escape, and Diggs then called to four negroes who were with him to give chase, saying they should have the reward. Anderson, being overtaken, drew a knife, threatening to kill any one who touched him. The negroes kept off, but Diggs struck at him with a stick, which caught in a bush and broke, and then Anderson stabbed him in the breast. Diggs, turning to flee, caught his foot in a tree and fell, and Anderson then stabbed him in the back, and after being chased a short distance by the negroes, succeeded in making his escape to Canada. Diggs shortly after died of his wounds. Anderson lived unmolested in Canada until 1860, when he was recognized, and was arrested on the application of the officers of the State of Missouri." (Sir Edward Clarke: The Law of Extradition, 3 ed., London, 1888, p. 95 to 96.)

When the case came to trial on a habeas corpus the chief justice held that the fact that, if acquitted, Anderson would be returned to slavery, was not material (Ibid, p. 97). The prisoner was later released by the courts chiefly on technical grounds. (See J. B. Moore: Extradition, Vol. 1, p. 642.)

In the meantime, however, "the case had created much excitement in England, and the Secretary for the Colonies addressed a dispatch to the Governor of Canada, instructing him not to issue his warrant for the extradition of Anderson, even if the judgment of the Queen's Bench were upheld on appeal. Her Majesty's Government, he said, were not satisfied that the decision of the Court at Toronto was in conformity with the views of the treaty which had hitherto guided the authorities in this country; and they desired an opportunity of further considering the question, and, if possible, of conferring with the Government of the United States upon the subject." (Clarke, Ibid, p. 98.)

Clarke in a footnote (Ibid, p. 217) remarks: "…. The crime charged against him [Anderson] upon the facts stated was murder by the law of England as well as by that of the United States. The question whether the circumstances showed sufficient provocation to reduce it to manslaughter, was one for the jury, and one with which the Canadian courts had nothing to do. Nor had these courts any right to inquire into the justice or policy of the legislative enactment under which the arrest was attempted to be made. That was a matter for the consideration of the foreign country, and would not, however it was resolved, affect the nature of the crime. An illustration may be given in the English Act, 14 & 15 Viet., cap. 19, by which if three poachers are out together at night armed, any person is authorized to apprehend them. It is very probable that American judges would disapprove of that Act, as part of what they might consider an iniquitous system of game laws ; but, so long as it remains upon the English Statute-book, a poacher killing a person so attempting to apprehend him would unquestionably be guilty of murder, and England would have an indisputable right to claim him under the treaty. So far as this question was decided in the case of Anderson, it was decided rightly. This was in the decision of the Queen's Bench (Canada) in favor of the surrender, ante, p. 95. See also Reg. v. Sattler, 1 Dears and Bell, C. C., 525."

This principle, to which Sir Edward Clarke refers, applies only in a case like that of the poachers in which the legislation in question may be considered as a reasonable exercise of the Sovereign powers of the state. In the case of slavery, however, this is not the case, for slavery being contrary to international law, not only is no state obligated to help another state to enforce it, but it is in duty bound to intervene within reason by affording a refuge to the escaped slave.

Justice M'Lean of the Canadian Court of Queen's Bench was correct in the view he expressed in his dissenting opinion that "as the law of Canada did not recognize slavery, Anderson could not be held to have committed murder in resisting unlawful detention." (Clarke: Extradition, 3 ed., p. 98.)⁵

The relations between the United States and Great Britain were troubled from time to time by the refusal of the latter to extradite or to punish slaves who had mutinied against the officers of American vessels transporting them, and taken refuge in the Bahamas or other British ports.

We take verbatim the following concise statement of the case of the Creole from the account given in Stowell and Munro's Cases⁶:

In the course of the thirties in a number of instances (The Comet, Encomium, Enterprise, and Hermosa), when American vessels transporting slaves from one American port to another were driven by stress of weather or other accident to take refuge in British ports, the local authorities had liberated their human cargo in spite of the vigorous protests of the American Consuls. Because of this action the United States made vigorous protests to the British Government without receiving the redress it claimed.

In 1840 the Senate adopted a resolution declaring that, where a vessel on the high seas, in time of peace, engaged in a lawful voyage, was forced by stress of weather or other unavoidable circumstances into the port of a friendly power, the country to which she belonged lost "none of the rights appertaining to her on the high seas, either over the vessel or the personal relations of those on board.

"The excitement created by these incidents culminated in the case of the brig Creole, which sailed from Hampton Roads for New Orleans on the 27th of October, 1841, having on board one hundred and thirty-five slaves. On the night of the 7th of November a portion of the slaves revolted, wounded the master, chief mate, and two of the crew, and murdered one of the passengers, and having secured possession of the vessel, ordered the mate, under pain of death, to steer for Nassau, where the brig arrived on the 9th of November. The slaves were afterwards liberated, under circumstances disclosed below in the opinion of Mr. Bates, umpire of the mixed commission under the treaty between the United States and Great Britain of 1853, to which commission the cases of the Enterprise, Hermosa, and Creole were ultimately submitted, on claims for damages.

In the cases of the Comet and Encomium, which respectively occurred in 1831 and February, 1833, Great Britain in the latter part of President Van Buren's Administration paid an indemnity of $116,179.62. But in the cases of the Enterprise, Hermosa, and Creole, which occurred after August 1, 1834, when the act of Parliament of August 28, 1833, for the abolition of slavery in the British colonies took effect, the British Government refused to acknowledge any liability on the ground that the slaves on entering British jurisdiction became free. The United States, on the other hand, maintained that if a vessel were driven by necessity to enter the port of another nation the local law could not operate so as to effect existing rights of property as between persons on board, or their personal obligations or relations under the law of the country to which the vessel belonged. In the case of the Creole this argument was emphasized by the fact that the vessel was brought into British jurisdiction by means of a crime against the law of the flag. The case gave rise to animated discussions in the British Parliament as well as in the Congress of the United States, and came near breaking up the negotiations between Mr. Webster and Lord Ashburton in 1842.

Bates, umpire in the case of the Creole under the convention between the United States and Great Britain of February 8, 1853, rendered the following opinion:⁷

"This case having been submitted to the umpire for his decision, he hereby reports that the claim has grown out of the following circumstances:

"The American brig Creole, Captain Ensor, sailed from Hampton Roads, in the State of Virginia, on the 27th October, 1841, having on board one hundred and thirty-five slaves, bound for New Orleans. On the 7th November, at nine o'clock in the evening, a portion of the slaves rose against the officers, crew, and passengers, wounding severely the captain, the chief mate, and two of the crew, and murdering one of the passengers; the mutineers, having got complete possession of the vessel, ordered the mate, under threat of instant death should he disobey or deceive them, to steer for Nassau, in the island of New Providence, where the brig arrived on the 9th November, 1841.

"The American Consul was apprised of the situation of the vessel, and requested the governor to take measures to prevent the escape of the slaves, and to have the murderers secured. The consul received reply from the Governor, stating that under the circumstances he would comply with the request.

"The consul went on board the brig, placed the mate in command in place of the disabled master, and found the slaves all quiet.

"About noon twenty African soldiers, with an African sergeant and corporal, commanded by a white officer, came on board. The officer was introduced by the consul to the mate as commanding officer of the vessel.

"The consul, on returning to the shore, was summoned to attend the governor and council, who were in session, who informed the consul that they had come to the following decision:

" '1st. That the courts of law have no jurisdiction over the alleged offenses.

" '2d. That, as an information had been lodged before the governor, charging that the crime of murder had been committed on board said vessel while on the high seas, it was expedient that the parties, implicated in so grave a charge, should not be allowed to go at large, and that an investigation ought therefore to be made into the charges, and examinations taken on oath ; when, if it should appear that the original information was correct, and that a murder had actually been committed, that all parties implicated in such crime, or other acts of violence, should be detained here until reference could be made to the Secretary of State to ascertain whether the parties should be delivered over to the United States Government; if not, how otherwise to dispose of them.

" ' 3d. That as soon as such examinations should be taken, all persons on board the Creole, not implicated in any of the offenses alleged to have been committed on board the vessel, must be released from further restraint.'

"Then two magistrates were sent on board. The American Consul went also. The examination was commenced on Tuesday, the 9th, and was continued on Wednesday, the 10th, and then postponed until Friday, on account of the illness of Captain Ensor. On Friday morning it was abruptly, and without any explanation, terminated.

"On the same day, a large number of boats assembled near the Creole, filled with colored persons armed with bludgeons. They were under the immediate command of the pilot, who took the vessel into the port, who was an officer of the government, and a colored man. A sloop or larger launch was also towed from the shore and anchored near the brig. The sloop was filled with men armed with clubs, and clubs were passed from her to the persons in the boats. A vast concourse of people were collected on shore opposite the brig.

"During the whole time the officers of the government were on board they encouraged the insubordination of the slaves.

"The Americans in port determined to unite and furnish the necessary aid to forward the vessel and negroes to New Orleans. The Consul and the officers and crews of two other American vessels had, in fact, united with the officers, men, and passengers of the Creole to effect this. They were to conduct her first to Indian Quay, Florida, where there was a vessel of war of the United States.

"On Friday morning, the consul was informed that attempts would be made to liberate the slaves by force, and from the mate he received information of the threatening state of things. The result was, that the attorney-general and other officers went on board the Creole. The slaves, identified as on board the vessel concerned in the mutiny, were sent on shore, and the residue of the slaves were called on deck by direction of the attorney-general, who addressed them in the following terms: 'My friends,' or 'my men, you have been detained a short time on board the Creole for the purpose of ascertaining what individuals were concerned in the murder. They have been identified and will be detained. The rest of you are free, and at liberty to go on shore, and wherever you please.

"The liberated slaves, assisted by the magistrates, were then taken on board the boats, and when landed were conducted by a vast assemblage to the superintendent of police, by whom their names were registered. They were thus forcibly taken from the custody of the master of the Creole, and lost to the claimants. "I need not refer to authorities to show that slavery, however odious and contrary to the principles of justice and humanity, may be established by law in any country ; and, having been so established in many countries, it cannot be contrary to the law of nations.

'The Creole was on a voyage, sanctioned and protected by the laws of the United States, and by the law of nations. Her right to navigate the ocean could not be questioned, and as growing out of that right, the right to seek shelter or enter the ports of a friendly power in case of distress or any unavoidable necessity.

"A vessel navigating the ocean carries with her the laws of her own country, so far as relates to the persons and property on board, and to a certain extent, retains those rights even in the ports of the foreign nations she may visit. Now, this being the state of the law of nations, what were the duties of the authorities at Nassau in regard to the Creole? It is submitted the mutineers could not be tried by the courts of that island, the crime having been committed on the high seas. All that the authorities could lawfully do, was to comply with the request of the American Consul, and keep the mutineers in custody until a conveyance could be found for sending them to the United States.

"The other slaves, being perfectly quiet, and under the command of the captain and owners, and on board an American ship, the authorities should have seen that they were protected by the law of nations; their rights under which cannot be abrogated or varied, either by the emancipation act or any other act of the British Parliament.

"Blackstone, 4th volume, speaking of the law of nations, states: 'Whenever any question arises, which is properly the object of its jurisdiction, such law is here adopted in its full extent by the common law.'

"The municipal law of England cannot authorize a magistrate to violate the law of nations by invading with an armed force the vessel of a friendly nation that has committed no offense, and forcibly dissolving the relations which by the laws of his country the captain is bound to preserve and enforce on board.

"These rights, sanctioned by the law of nations, viz: the right to navigate the ocean, and to seek shelter in case of distress or other unavoidable circumstances, and to retain over the ship, her cargo, and passengers, the laws of her own country - must be respected by all nations; for no independent nation would submit to their violation.

"Having read all the authorities referred to in the arguments on both sides, I have come to the conclusion that the conduct of the authorities at Nassau was in violation of the established law of nations, and that the claimants are justly entitled to compensation for their losses. I therefore award to the undermentioned parties, their assigns, or legal representatives, the sum set

opposite their names, due on the 15th of January, 1855." The total amount awarded was $110,330. (Extracted and condensed from Moore: Digest of International Law, vol. II, pp. 350-61.)

Sir Frederick St. John, who was at the time attached to the British Embassy at Constantinople, gives the following account of how the British Ambassador gave an asylum in the Embassy to a slave girl to save her from the harsh provisions of Turkish law: "A curious incident occurred in the summer of 1880 while the Embassy was at Therapia. One of the dragomans came up the Bosphorus from town specially to report than an odalisk (a slave lady) from the harem of the deposed Sultan Murad had escaped from the house of a pasha, in whose custody she had been placed, taken refuge in the British Embassy palace, and threatened to stab herself should an attempt be made to expel her.

"Mr. Goschen directed that I should at once accompany our dragoman back to town and interview the lady. I found a very beautiful, delicate-looking young Circassian, dressed in European clothes, which she had borrowed from the wife of our Embassy porter in exchange for the garb of the poorest of beggar-women, in which she had arrived. I put her, by means of the dragoman, through an interrogatory, and this was her story. On the deposition of the present Sultan's brother she was, as above stated, placed with the family of a pasha holding office at court; but finding life intolerable in such custody (no particulars were given me) she determined to escape and take refuge at the British Embassy. So, after exchanging dresses with an old woman engaged to wash down the stone stairs at early dawn, she sallied forth, for the first time in her life alone, into the streets, and, not knowing the way, wandered about for hours, till so exhausted that she entered a coffee-shop and, holding out a coin, asked that a carriage might be fetched, as she felt too ill to walk, and thus reached the Embassy.

"Having concluded her story, she repeated to me the threat that any attempt to expel her should be followed instantly by self-immolation; and by way of emphasizing her determination she half unsheathed a gleaming weapon wherewith to carry out the ghastly threat.

"I had heard enough, so I withdrew from her presence and hurried back to Therapia, where the Ambassador and his family had just commenced dinner. I was invited to join in the meal, and while so engaged I recounted my interview to eager listeners.

"It was decided that I should next morning return to Pera in the ambassadorial coach, with an assortment of ladies' garments, including a hat and thick veil, wherewith the better to disguise this interesting refugee as I conducted her to the landing-place at Galata, where a British man-of-war's steam-launch would be in readiness to convey her up the Bosphorus to Therapia.

"On quitting the Ambassador 's residence, and on rejoining after dinner my colleagues in the secretaries' house at the other end of the Embassy gardens, I went over the same ground with reference to my interview with the beautiful odalisk, whose charms I exaggerated not more than five per cent, over the truth (being only on one side Irish) ; but it was enough to make each one of them regret that he had not been the one selected (by a discriminating chief) to carry out so delicate a mission.

"On my arrival in town the next morning, an eleven miles' drive, I intimated to the lady, through the porter's wife, what had been the Ambassador's decision - which was that she should reside in the Embassy house at Therapia till otherwise determined. On her acceptance of my proposal I directed the porter to extract a certain bundle out of the carriage, and then withdrew.

"After the lapse of twenty minutes or so I was invited by the porter 's wife to reenter the room, where I found a perfectly unrecognizable and fashionably dressed European lady, with whom I reentered the carriage and drove down to Galata; but it was a market day, and the narrow alley leading from the main street to the landing-place was so crowded with vendors and their wares that we were forced to alight and walk the rest of the distance.

"This was the critical moment. I made her take my arm, and, as we threaded our way though a Mohametan crowd, I became painfully conscious that were I followed by a spy, and denounced as eloping with a lady from the palace, my shrift would be but short. Vendors and purchasers were, however, far too interested in their deals to heed a passing giaour couple, and so we safely reached the spot where the steam-launch, with more than the usual number of bluejackets - armed to the teeth - was in waiting.

"After assisting the veiled one to embark, and seeing the steam-launch well off, I returned to the carriage and drove to the Porte at Stamboul - where, as previously instructed, I informed Artin Bey, the secretary-general of the Foreign Department, of all that had occurred. He is a most intelligent Armenian, with a wonderful volubility of speech, but what I had to impart to him simply paralyzed his tongue. I can see him now, gaping at me in silence as I left the room.

"In the afternoon of the following day he arrived at Therapia, charged by the reigning Sultan, Abdul Hamid, to see Mr. Goschen and demand the release of the absconded one. I was present at the interview. He assured the Ambassador, from the Sultan, that if the lady were returned she should be forgiven for her escapade and every care taken of her. Mr. Goschen replied that only with her free consent should the Sultan 's wish be complied with.

"Artin Bey thereupon besought Mr. Goschen that he might be allowed to speak with the lady. After some hesitation the request was granted, on condition that I was present at the interview - which lasted two hours, during the whole of which time Artin Bey appeared to use all the eloquence at his command to induce the lady to obey the Sultan's behest, but in vain. To every fresh appeal, while reclining on a cushion with her face to the wall - for she was unprovided with a yashmak - the lady replied with a shake of the head, as the tears streamed down her cheeks. At last he rose and departed, evidently much disconcerted, 'but returned the next day with further offers from the Sultan. She was to choose her own residence, her own attendants, and receive an ample allowance. To these conditions, after a three hours' interview, during the whole of which time I was present, she at last agreed; and, on her consent being communicated to Mr. Goschen, he made the condition that before the lady departed he should be furnished with a document, signed by the Ottoman Minister of Foreign Affairs, to the effect that the Sultan promised never to give cause to the Ambassador to regret having surrendered the lady, whose residence should be made known to the Embassy, in order that inquiries might from time to time be instituted, and the fact ascertained that she was contented and happy.

"On the following day Artin Bey returned, this time in a special steamer; and, after submitting the document in the form required, departed with the lady. From all we heard afterwards she appears never to have had cause to regret having accepted the Sultan's offers." (Sir Frederick St. John: Reminiscences of a Retired Diplomat, p. 194-8.)

In view of the growing abhorrence of slavery and the numerous precedents denying its legality, it is easy to understand the disappointment of the United States at its failure to secure the sympathy of the European powers in the war to prevent secession and the establishment of a slave-holding state determined to perpetuate that institution.

The Senate of the United States, in its report of February 28, 1863, relative to the offer of Napoleon III of "mediation," expressed "regret that foreign powers have not frankly told the chiefs of the Rebellion that the work in which they are engaged is hateful, and that a new government such as they seek to found, with slavery as its corner stone, and with no other declared object of separate existence, is so far shocking to civilization and the moral sense of mankind that it must not expect welcome or recognition in the commonwealth of nations." The President was requested to transmit this declaration and protest to the American representatives abroad for communication to the governments to which they were accredited.⁸

An amusing incident showing some of the inconveniences of international intercourse between states of unequal culture appears from the following letter which Mr. Hammond of the Foreign Office sent to Lord Lyons May 30, 1867:

"We should like to know as soon as possible at what time we may calculate on seeing the Sultan and what members of his family or of his government he brings with him, and the rank and description of his suite and their numbers. It is to be hoped they will not be too numerous, and that as he is to be lodged in the Palace, the usual habits of Orientalism will for the time be laid aside and the services of his Harem be dispensed with during his visit. It would shock the people in this country to hear of the Sultan being attended by persons not proper to be mentioned in civilized society, and no small inconvenience might result if he was known to have slaves in his suite, for it would be impossible to answer for the enthusiasts of Exeter Hall with so fair an opportunity before them for displaying their zeal and doing mischief." (Lord Newton's Life of Lord Lyons, vol. I, p. 172.)

In fit conclusion, we wish to quote here once again Hall's opinion that ". . .the personal freedom of human beings has been admitted by modern civilized states as a right which they are bound to respect and which they ought to uphold internationally." (W. E. Hall: International Law, 4 ed., § 108, p. 343.)

Slavery has now almost entirely disappeared and is not likely much longer to constitute a problem in international law, but the principles upon which humanitarian interventions for the prevention of involuntary servitude have so frequently been based seem destined to play an important role in the future, by reason of the close analogy between the condition of slavery and that economic thraldom in which human beings are made to toil beyond the limits of reasonable endurance. It has sometimes happened that laborers, including pregnant women, and children of tender age, have been forced by economic pressure to work in sweatshops and elsewhere under conditions which shock the right sentiment of humanity. The same irresistible force of public opinion which in the past has demanded intervention to repress the abhorrent slave trade and to discountenance slavery will probably drive on governments to adopt a similar course and to intervene for the purpose of reforming the conduct of states where the conditions of labor are so intolerable as to shock the humane sentiments of other states.

We shall see further along an application of this kind of intervention in the legislation adopted by certain states for the purpose of compelling other states to protect passengers voyaging under their flag and prevent an abusive or inhuman treatment of seamen.

Asylum has often been granted in warships and legations to political refugees. In certain states which are subject to frequent revolutions and periods of turmoil when factional animosities prevail over all considerations of justice and patriotism, it has been customary to offer an asylum in legations and consulates to political fugitives.

It may be argued that this is justifiable as an intervention on the ground of humanity to prevent the unnecessary slaughter of men whose qualities of leadership are needed by the country. On the other side it is argued that this intervention tends to preserve the refugees to fight another day, and so to prolong the miseries of the whole country in order to save a few lives.

From Professor Moore 's interesting study of Asylum in Legations and in Vessels, we take the following extract summarizing certain instances of political asylum granted in certain European States in time of disturbance: "During the disorders at Naples in 1849, Lord Palmerston said that while it 'would not be right to receive and harbor on board of a British ship of war any person flying from justice on a criminal charge, or who was escaping from the sentence of a court of law,' yet a British man-of-war had always been regarded as a safe place of refuge for persons fleeing 'from persecution on account of their conduct or opinions,' whether the refugee 'was escaping from the arbitrary acts of a monarchical government or from the lawless violence of a revolutionary committee.' (British State Papers, vol. 50, p. 803.) In August of the preceding year the Duke of Parma, whose life was threatened, was embarked at Civita Vecchia on the British man-of-war Hecaté, (Ibid, vol. 41, p. 1316), and in the same month the British admiral ordered H. M. S. Bulldog to the same port to receive the Pope, should commotions render it desirable for His Holiness to seek refuge on board (Ibid, vol. 41, : 1324). During the revolution in Greece in 1862, King Otho and his queen were afforded protection on the British Frigate Scylla (Ibid, vol. 58: 1034), while a member of the cabinet and his family were received on the Queen and several persons were sheltered on the French man-of-war Zénobie. The instructions given by Vice-Admiral Sir William Martin on that occasion to the commanders of British ships of war declared that their duty was 'limited to the protection of the lives and property of British subjects and to affording protection to any refugees whom you may be informed by Her Majesty's minister would be in danger of their lives without such protection.' ( Ibid, vol. 58, p. 1057.) Under these instructions, the reception of refugees by the British commanders was carefully restricted (Ibid, p. 1087)."

A rather exceptional instance of asylum in a battleship was that which the British Government was ready to offer the Pope shortly after the outbreak of the Franco-German war to carry him safely to England. Had the Pope actually taken refuge on a British warship, it might have been classed as an instance of humanitarian intervention to prevent any danger to the person and dignity of the head of the Roman Catholic Church. (See Parliamentary Papers, 1871, vol. 72 [c. 247] p. 4-5.)

It is in certain states of America that this form of humanitarian intervention has most frequently been employed. In some instances, the states concerned have made energetic protest. On the whole the United States has tended to support the opinion which is against the granting of

political asylum. The French Government expressed a different view, when in the case of four ex-ministers of Peru who sought refuge in the French Legation, Nov. 6, 1865, M. Drouyn de Lhuys instructed the French consul temporarily in charge of the legation that the right of asylum was too much in conformity with feelings of humanity for France to consent to abandon it, but that it was solely requisite to facilitate the departure from the country of persons who could not remain there without personal danger and danger to the country itself. (Extract quoted from Sir Ernest Satow: Diplomatic Practice, London, 1917, vol. I, 291-2; J. B. Moore: Asylum, Political Science Quarterly, March, 1892, vol. vii, p. 29-37, gives a more full account.)

Mr. Hovey, who was the American Minister to Peru shortly thereafter, during the revolutionary distress which still prevailed, was so impressed with the abuses which asylum covered that he refused to grant it until his government should expressly instruct him to do so. Mr. Hovey 's views are expressed in his dispatch to Secretary Seward, January 28, 1867:

"In my dispatch No. 4, dated December 28th, 1865, I addressed the Department of State in relation to the question of diplomatic asylum, stating that I should refuse to exercise that power until I was otherwise directed. I have not as yet received an answer to that communication, and have concluded from your silence that the government approved my course.

"On the 12th day of the present month I received a note from his excellency Senor Don Toribio Pacheco, minister of foreign affairs, inviting me to a conference for a definite agreement as to the principles of international law in relation to this important subject. Being indisposed at the time I addressed a note to his excellency, in which I reiterated the substance of my No. 4, above referred to, alluding therein to the authorities of Wheaton, Woolsey, and Polsin, denying the doctrine of asylum, but saying to his excellency that if other foreign ministers were permitted to exercise the right in Peru, I should expect to be entitled to the same.

"Being invited to a diplomatic conference of the 21st instant, I attended the same, and offered the following resolutions:

"1. The diplomatic body here assembled resolve that they, and each of them, jointly and severally, acknowledge and recognize Peru as a Christian nation.

"2. As each Christian nation should, by international law, be entitled to all the rights properly claimed by others, therefore -

"Resolved, That Peru is entitled to the same rights and privileges, through her diplomatic agents abroad, that we, as representatives near the government of Peru, are respectively entitled to here, and that we cannot, in justice, claim more than our respective governments accord to the representatives of Peru.

"3. Therefore resolved, That we recognize the law of nations, as relating to the question of asylum, to be the same as practiced in the United States, and in England, France, and other Christian nations of Europe.

"The representatives present, of France, England, Brazil, Bolivia, Chili, and Italy, contended for the right of asylum, and opposed the resolutions.

"The Peruvian government insists on being placed upon a footing with civilized nations of the world. You will thus see that I have alone supported the position assumed by the authorities of Peru. I do not believe that the history of Peru can furnish a single example where the innocent have been shielded by asylum; nearly all the cases of which I have heard are those applying strictly to citizens of Peru charged with conspiracy or treason.

"One case, that of Captain Carwell, an Englishman, turned upon the point of his contempt of court in an order made for the delivery of property. Refusing to obey the warrant of the court, he fled for protection to the English legation, from whence, after eleven months, he made his escape, still refusing to obey the orders of the court, and taking with him the property in dispute. "Another case, which transpired shortly before my arrival, was that of General Canseco, vice-president of the republic, charged with conspiracy against the government; he remained in the legation of the United States some three or four months, where he was in daily communication with his co-conspirators. At length he agreed with President Pezet to exile himself to Chili upon the payment of one year 's salary ; he received the pay, was permitted to depart, landed in two days upon the coast of Peru, and a few weeks afterward returned with an invading army to the walls of Lima.

"The third case involves the question now pending between France and Peru, and arose by asylum being given by the French legation on the 20th of December, 1865, to three Peruvians, charged by the central court with peculation, conspiracy, and treason.

"Two of the same gentlemen applied to me and were refused. This gave rise to my dispatch No. 4, already alluded to, on this question.

The French chargé d'affaires, Mr. Emile Vion, refused to acknowledge the right of the government to arrest them, although the officers of the law demanded them under writs from the central court. The chargé d'affaires referred the case to the Emperor of France, and his action was approved; but the chargé d'affaires was ordered to solicit the settlement of the question of asylum by the Peruvian government and the diplomatic corps resident in Lima. As no person arrested by the government upon any charge has as yet suffered the extreme penalty, it is apparent that the plea of cruelty or barbarity cannot be sustained as the cause for giving asylum. Peruvians were dealing with Peruvians, and should, in my opinion, have been left to their own laws and courts. The practice of giving asylum has been and still is a prolific source of revolutions in, and the instability of, the South American republics. The traitor, who would for his own ambition steep his country in blood, feels assured that if he fails in his rebellion he has only to flee to the house of some minister, and that there he will find a refuge beyond the reach of justice. Thus encouraged, and the high crime of treason varnished over with the soft name of "political offence," he launches recklessly into his ambitious schemes, and the country is kept in continual commotion. If there should be a single unfriendly minister to the government here, (and there always is), his legation at once becomes the asylum and headquarters for the conspirators against the government. Is it strange, then, that revolutions here are so common? In my opinion, that man will prove a benefactor to South America who breaks down this ancient relic of barbarism and aids in bringing the guilty to the quick punishment of the laws against which they may have offended.

"With childlike faith Peru trusts, at least for moral aid, to the United States, and I submit that, by placing her upon a level with other Christian nations, the chances of her advancement would be greatly increased, as permanent governments would more securely follow." (Diplomatic Correspondence, 1867, Pt. II, p. 736-8.)

But the international practice of the principal states has continued to recognize the legality of political asylum in certain states of Latin America, and the two most recently published volumes of the Foreign Relations of the United States show that that Government also recognized by its practice the legality of humanitarian asylum when used in a nonpartisan manner to save the life of political refugees and to permit them to escape from the country.

The general practice of the United States in regard to what Secretary Knox designated as "temporary refuge," in contradistinction to "permanent asylum," was embodied in his instructions to the Consul General at Guayaquil, Ecuador, April 5, 1910, as follows: "You may in your discretion afford temporary refuge where such is necessary in order to preserve innocent human life." (Foreign Relations, 1912, p. 399, note.)

Early in January, 1912, it would appear that the American Minister advised the Consul General at Guayaquil, and the Commander of the Yorktown "to receive no political refugees," but in his dispatch of January 30, 1912, Secretary Knox instructed the American Minister:

"You are correct in assuming that what is technically known as 'the right of asylum' in a strict sense is not claimed by this government. However, there is an evident distinction between this case and that where temporary refuge is given within the residence of a consular or diplomatic representative in order to preserve innocent human life. The general practice of the Department on the subject of temporary refuge is embodied in an instruction to the Consul General at Guayaquil which you will find in the files of the Legation. [See instruction of April 5, 1910, above.]

"In the case of temporary refuge, the Department finds it expedient to give a certain latitude to the judgment of the official who is called upon to determine, within his discretion, the course recommended by broad considerations of humanity in each individual case. It is accordingly the general rule of the Department to place all emphasis upon the responsibility of the consular or diplomatic officer in the matter and to permit him, within these limitations, at his discretion to afford temporary refuge where such is necessary to preserve innocent human life." (Foreign Relations, 1912, p. 399.)

In his dispatch of March 18, 1912, the American Chargé, Bingham, at Quito, Ecuador, reports the disturbed condition of affairs, and the possibility of further violence resulting in a "state of affairs closely resembling anarchy." Chargé Bingham's report continues: "As a proof that much anxiety is felt by all classes, I have the honor to inform the Department that several individuals have requested asylum in this legation in case of further disturbance in Quito. To everyone who has asked for asylum I have replied that the Department of State deprecates the granting of asylum except where it is absolutely necessary from the point of view of humanity, to save life; that I could not discuss a hypothetical question of future danger but must decide each case on its merits as it arose ; and I strongly urge the individuals in question to adopt every other means of securing their safety in case of trouble instead of coming to this Legation, as I desired to hold absolutely aloof from all internal question." (Foreign Relations, 1912, p. 406.)

In China, during the disturbances of 1911, the American Vice Consul at Foochow telegraphed: "The right of asylum may be requested by the mandarins. Instructions requested." (Foreign Relations, 1912, p. 173.)

Acting Secretary of State Adee replying the same day that this arrived, November 7, 1911, sent the following instructions: "The right of consular asylum is not claimed by this government, but you may use your discretion as to granting temporary refuge where such is necessary to preserve innocent human life, carefully avoiding action that might appear partisan." (Ibid, p. 174.)

Three days later, the American Charge Williams at Peking telegraphed: "Asylum at the Legation has been asked by the Emperor and Empress Dowager, which I strongly urge be granted." (Foreign Relations, 1912, p. 174.) To this, Secretary of State Knox replied with the accustomed formula: "In accordance with the uniform policy of this government you may at your discretion afford temporary refuge where such is necessary to preserve innocent human life,⁹ first ascertaining that your colleagues believe safety of the legation quarter not thereby endangered." (Ibid, p. 174.)

On October 24, 1912, the American Consul at Vera Cruz, Mexico, telegraphed for instructions: "No foreigners hurt or property destroyed. City in the possession of Federals. Diaz is a prisoner; if asylum is asked for will be refused." (Ibid, p. 924.) Secretary Knox, who had received the American Charge's report of October 27,¹⁰ repeated the portion of the American Consul's telegram regarding asylum for General Felix Diaz, and instructed the Charge as follows: The Department presumes there will be no occasion either to grant or to refuse asylum to Diaz, since he is held a prisoner by Mexican Federal forces. You will inform the Consul at Vera Cruz, however, that the position of the Department with regard to asylum is as follows: 'The Government of the United States does not claim what is technically known as the right of asylum in the strictest sense. There is, however, an evident distinction between cases of this kind and cases in which temporary refuge is given in order to preserve innocent human life. In cases of the latter kind the Department of State finds it expedient to give a certain latitude to the judgment of the officer who is called upon to determine within his discretion the course recommended by broad considerations of humanity in each individual case. It is accordingly the general rule of the Department of State to place all emphasis upon the responsibility of the officer concerned and to permit him within these limitations, at his discretion, to afford temporary refuge where such is necessary to preserve innocent human life.' " (Ibid, p. 925-6.)

One year later, when General Diaz found "temporary refuge" on the American warship Wheeling, Secretary of State Bryan in a letter of October 28, 1913, to the Secretary of the Navy, explained the attitude of the Department of State:

"I have the honor to acknowledge the receipt of your letter of this date transmitting a copy of a telegram received by you from Admiral Fletcher, at Vera Cruz, with reference to the action of the U. S. S. Wheeling in taking on board General Diaz and two friends, and Williams, American correspondent of the New York Herald.

"In this connection I beg to advise that, while the rule governing such cases is that it is the duty of American men-of-war to protect American citizens, it is, as a general rule, against the policy of this government to grant asylum in its ships to the citizens of foreign countries engaged in political activity, especially when such asylum is for the purpose of furthering their political plans. Temporary shelter to such persons, when they are seeking to leave their country, has sometimes been conceded on grounds of humanity, but even this is done with great circumspection lest advantage be taken of it to further the political fortunes of individuals with the result of involving us in the domestic politics of foreign countries.

"In this case you will please direct the commander of the Wheeling to furnish Williams, the American correspondent of the New York Herald, who, we take it for granted, is not a citizen of Mexico, asylum on the American ship until he can secure passage to the United States. In the case of General Diaz and his two friends, you will give them temporary asylum until they can find a ship to take them away from Mexico, it being taken for granted that they do not desire to remain in Mexico. They will, of course, understand that while they are on an American ship they cannot use it as a basis for political activity." (Foreign Relations, 1913, p. 854-5.)

We learn from the report of the American Consul at Matamoras, of April 7, 1913, that he permitted General Estrada to remain with him for sixteen days. The Consul explained his action as follows: "The old General could not get across the river without great danger, and I thought it an act of humanity to protect him. I have refused others protection but I deemed his case a very meritorious one. I hope and trust that I did not commit a great wrong." (Ibid, p. 789.)

In reply, Mr. Carr, writing for Secretary Bryan, instructed the Consul as follows: "While the Department is not inclined to disapprove your action under the circumstances as you explain them, it is not entirely clear that it was necessary for such protection to be extended over so long a period of time, especially in view of the proximity of the international border.

"In this connection it seems pertinent to invite your attention to the Department's standing instructions that, while indisposed to direct its representatives to deny temporary shelter to any person whose life may be immediately threatened, this government does not sanction the usage of asylum and enjoins upon its representatives the avoidance of all pretexts for its exercise.

"Your action therefore in similar cases which may arise in the future should be limited to the affording of protection only when it appears to be absolutely necessary for the preservation of life¹¹ and should be in the nature of temporary refuge. It should be distinctly understood that the protection extended should be strictly limited as indicated, and that no promise of shelter should be given in advance of an emergency seeming to call therefore." (Foreign Relations, 1913, p. 796-7.)

If any further evidence were needed conclusively to demonstrate the existence in certain states of South America of a well recognized practice of granting asylum in the case of political refugees, we might give the incident of President Leguia, of Peru, who was deposed by a revolution. In his dispatch of July 27, 1913, the American Minister reported that President Leguia, whose residence was attacked by a mob "asked for and was offered asylum at the legation in protection of innocent human life, if he could make his escape." But the President and his son were arrested and placed in the penitentiary. Secretary Bryan on August 4, 1913, instructed the American Minister to "leave undone nothing" he could properly do to save the lives of the President and his son and the Vice-President.

The American Minister's report of July 31 gives the following information: "Vice-President Leguia [a brother of the President] has been given asylum by the Italian Minister, who informed the Foreign Office on July 26 of the rumored attempt on the life of ex-President Leguia, who is still a prisoner. The representations of the Italian Minister were supported by the

British and Brazilian Ministers and my own, asking for an ample guard. The Under Secretary of State assured me later that he had communicated these representations to the President." (Foreign Relations, 1913, p. 1142.)

On August 10, ex-President Leguia was permitted to sail with his son for Panama. In his dispatch of August 19, the American Minister reported as follows to the Secretary of State regarding the asylum which had been granted by the representatives of Italy and France:

"I have been favored by the Italian Minister with a copy of his note addressed to the Foreign Office, dated July 25, 1913, informing the Peruvian Government that Vice-President Roberto Leguia had taken refuge, and been given asylum, in that Legation on that day. It will be noted that such asylum was sought the same night on which the residence of the former President was attacked. The French Minister also informed me that another brother, Carlos Leguia, Vice-President of the Senate, had asked for, and been offered asylum in the French Legation, provided he found that the necessity therefore should exist.

"The Peruvian Foreign Office replied to the Italian Minister on July 29 stating that no order for the arrest of the Señor Leguia in question had been issued. It was then that the latter left the Italian Legation. I have learned that the Italian Minister, in addition to writing the Foreign Office, personally asked for and was furnished a guard of half a dozen soldiers, who were placed within the Legation residence.

"I have sought this information because it will preserve written evidence of the recognition by the Peruvian Government of the right of a political refugee to seek and be accorded asylum in the legation of a foreign country, which may prove of value in the future and serve as a precedent." (Foreign Relations, 1913, p. 1145.)

In many of the instances in which fugitives have been received in legations and consulates to save their lives from mob violence, the action taken was not necessarily opposed to the will of the de facto government, but it is sometimes hard to draw the line between mob violence and revolutionary activity.

It cannot be denied that political asylum in legations and warships is a form of humanitarian intervention which easily opens the door to interference in the political affairs of the state. It is hard to separate political offences from ordinary crimes, and this often leads to friction between the local authorities and the foreign official who has taken the fugitive under his protection.¹²

As soon as any state demonstrates its capacity to fulfill all the obligations of international law, and to preserve throughout its territory a reasonable respect for law and property, it will acquire the confidence of other states. We may expect that in the course of time, humanitarian asylum will disappear from Latin America as completely as it has vanished from Europe.

As yet, however, the most powerful and civilized states have not considered that this form of intervention can be abolished in the case of those less civilized states where revolutions are frequent and the ensuing executions and cruelties constitute a reproach not only to the participants, but also to those who refuse to intervene to help the victims.

There is still another field of application for humanitarian intervention, which relates to the commerce of other states and it is therefore of considerable importance. Action of this kind gives rise to questions of great delicacy, and necessitates the closest juridical reasoning. We find three forms of application, namely: Regulation of Foreign Shipping; Denial of Transit; Prohibition of Entry.

Certain legislative enactments undertake to compel foreign states to adopt for their vessels regulations which will protect the lives of passengers and guarantee the humane treatment of all seamen.

The manner in which this humanitarian object has been achieved is well illustrated in the case of the Plimpsoll Act, by which Great Britain undertook to penalize vessels entering or leaving her ports loaded beyond the point of safety.¹³

As finally enacted, § 24 of the Merchant Ship Act, 1876, reads as follows:

"After the first day of November, one thousand eight hundred and seventy-six, if a ship, British or foreign, arrives between the last day of October and the sixteenth day of April in any year at any port in the United Kingdom from any port out of the United Kingdom, carrying as deck cargo, that is to say, in any uncovered space upon deck, or in any covered space not included in the cubical contents forming the ship 's registered tonnage, any wood goods coming within the following descriptions ……. the master of the ship, and also the owner, if he is privy to the offense, shall be liable to a penalty not exceeding five pounds for every hundred cubic feet of wood goods carried in contravention of this section, and such penalty may be recovered by action or on indictment or to an amount not exceeding one hundred pounds (whatever may be the

maximum penalty recoverable) on summary conviction." (English Law Reports (1876), Statutes, vol. XI, pp. 502-03.)

When this provision of the Act of 1876 was called to the attention of the United States, "The Department of State," to borrow the words of Professor J. B. Moore, "replied that, as attention was thus particularly called to the questions under section 24, it seemed proper to state that the right to impose penalties on the master or owner of an American vessel, sailing from a port of the United States, for the manner in which the cargo was laden or stored, was of so doubtful a character that, however wise or beneficent the intent of the act might be, the Government of the United States 'cannot but invite the attention of Her Majesty's Government particularly thereto, before further steps are taken in Great Britain to enforce obedience to the law in these particular cases, and before any steps be taken toward the enforcement of fines in these or similar cases.

"The representations of the United States 'appear to have received the careful attention of the Government of Great Britain, and toward the close of the year 1877, the minister of the United States at London received a note from Lord Derby, justifying the provisions of the act adverted to, which had been specially made the subject of complaint, as not inconsistent with the principles of international law, or with the practice of nations in such matters/ and expressing the hope that the United States would 'yield the provisions of the act mentioned a friendly support, by enjoining its observance on the part of American shippers and owners of vessels, in the interest of humanity/ The subject thereafter 'failed to become one of special action in the part of the United States.' " (Moore's International Law Digest, Vol. II, § 204, p. 282-3.)

The Act of 1876 was consolidated without modification in 1894, and Parliament in 1906 passed an act amending the Merchant Shipping Acts by the addition, amongst others, of several provisions affecting foreign shipping. The British loadline provisions were made to apply to foreign ships "while they are within any port of the United Kingdom," the power to detain unsafe ships of foreign nationality was extended to include cases of defective equipment, and power was given to apply rules as to life-saving appliances to foreign ships "provided that His Majesty may by Order in Council direct that these provisions shall not apply to any ship of a foreign country in which the provisions in force relating to life-saving appliances appear to His Majesty to be as effective as the provisions of Part V of the principal act, on proof that these provisions were complied with in the case of that ship." (Statutes (1905-06), pp. 248-49.) But the most significant extension of jurisdiction in 1906 was that laid down in the section relating to foreign ships carrying cargoes of grain, as follows:

"If after the first day of October, one thousand nine hundred and seven, a foreign ship laden with grain cargo arrives at any port in the United Kingdom having the grain cargo so loaded that the master of the ship, if the ship were a British ship, would be liable to a penalty under the provisions of Part V of the principal act relating to the carriage of grain, the master of that foreign ship shall be liable to a fine not exceeding three hundred pounds." (Statutes (1905-06), p. 248. The two preceding paragraphs are copied from Stowell and Munro's Cases, vol. I, p. 442-3.)

The Seamen's Act of March 4, 1915, popularly known as the La Follette Act, contains several provisions which like the British Acts above referred to, exercise by means of penalties imposed within American jurisdiction a certain control over foreign vessels, even when they are outside of American waters. Section 13 of the Act in part provides:

"That no vessel of one hundred tons gross and upward, except those navigating rivers exclusively and the smaller inland lakes and except as provided in section one of this Act, shall be permitted to depart from any port of the United States unless she has on board a crew not less than seventy-five per centum of which, in each department thereof, are able to understand any order given by the officers of such vessel, nor unless forty per centum in the first year, forty-five per centum in the second year, fifty per centum in the third year, fifty-five per centum in the fourth year after the passage of this Act, and thereafter sixty-five per centum of her deck crew, exclusive of licensed officers and apprentices, are of a rating not less than able seamen." (Seamen's Act of March 4, 1915, Sec. 13.)

Further along the same section provides: "The collector of customs may, upon his own motion, and shall, upon the sworn information of any reputable citizen of the United States setting forth that this section is not being complied with, cause a muster of the crew of any vessel to be made to determine the fact ; and no clearance shall be given to any vessel failing to comply

with the provisions of this section:

"Section 14 of the Seamen's Act in part provides: "That foreign vessels leaving ports of the United States shall comply with the rules herein prescribed as to life-saving appliances, their equipment, and the manning of same." Then follows a detailed set of regulations specifying the type and number of the life-saving appliances, etc. Detailed regulations are also set out in regard to the qualifications and number of men for the manning of the boats, muster rolls and drills, and the duties assigned by the muster list to the different members of the crew are carefully specified.

"Before the vessel sails," declares the Act in this same section, "the muster list shall be drawn up and exhibited, and the proper authority, to be designated by the Secretary of Commerce, shall be satisfied that the muster list has been prepared for the vessel. It shall be posted in several parts of the vessel, and in particular in the crew's quarters."

The owner of any vessel who neglects or refuses to provide and equip his vessel with the lifeboats, etc., as specified in the Act, is subjected to a fine, as is "...every master of a vessel who shall fail to comply with the requirements of this section, and the regulations of the Board of Supervising Inspectors, approved by the Secretary of Commerce, authorized by and made pursuant hereto." (Seamen's Act of March 4, 1915, § 14.)

In so far as these regulations are reasonably necessary to provide for the security of international passenger travel, the United States is justified by the principles of humanitarian intervention, which we have above discussed, in using its sovereign authority over foreign vessels temporarily sojourning in the harbors of the United States to compel a compliance with them, and it will not be a valid objection in international law that the United States does in effect so use its sovereign authority to regulate the action of the vessels in question, even when they are without the jurisdiction of the United States and upon the high seas.

The United States would be amply justified in refusing entry to any and all foreign vessels

failing to regulate their commerce so as to provide for the security and humane treatment of passengers and crew. It is evident that the same result may be obtained by a less drastic method of penalizing, while within the jurisdiction of the United States, those foreign vessels that fail to make reasonable provision for the security and humane treatment of passengers and crew. Section 16 of the Seamen's Act of March 4, 1915, applies to the arrest and imprisonment of officers and seamen deserting from merchant vessels. It reads as follows:

"That in the judgment of Congress articles in treaties and conventions of the United States, in so far as they provide for the arrest and imprisonment of officers and seamen deserting or charged with desertion from merchant vessels of the United States in foreign countries, and for the arrest and imprisonment of officers and seamen deserting or charged with desertion from merchant vessels of foreign nations in the United States and the Territories and possessions thereof, and for the cooperation, aid, and protection of competent legal authorities in effecting such arrest or imprisonment and any other treaty provision in conflict with the provisions of this Act, ought to be terminated, and to this end the President be, and he is hereby, requested and directed, within ninety days after the passage of this Act, to give notice to the several governments, respectively, that so much as hereinbefore described of all such treaties and conventions between the United States and foreign governments will terminate on the expiration of such periods after notices have been given as may be required in such treaties and conventions." (Act of March 4, 1915, § 16.)

The testimony of Mr. Andrew Furuseth, President of the Seamen's Union of America, describes the purposes of this provision as follows:

". . .Giving the foreign ship owner the right to ship his men, as he unquestionably has in his own port, to come here, and then giving him the right to use the machinery of the American police and courts to compel the performance of a contract to labor, you are giving to the foreign ship owner a privilege you have refused to your own citizens long ago, and by so doing you are putting a preferential against American shipping. That has been the situation in the past, and if it is permitted to go on will be sufficient in the future to make any competition with the foreign ship owner in the actual ocean trade impossible. If you apply the true American principles of equal freedom, if you apply the system of free soil, making free men, which the Supreme Court, in all probability, would apply if it were taken to it to-day; if you accepted that proposition and that idea, and carried it out, and made the law, as you make it here, applicable to foreign seamen while under the jurisdiction of the laws of the United States, he will have to pay as much for his seamen as you will have to pay for your seamen, and all the discrimination against the American ship owner will fall away.

"But it will go further than that. A vessel coming from Europe and staying in New York three days will, in order to secure herself, pay about the New York wages from the European port from which she goes. Who is hurt? The foreign ship owner? Yes. Why is he hurt? He is hurt in something he had no right to. He had no right to a specific privilege over the American ship owner in taking cargoes or passengers out an American port; and we believe and our belief is based on years of experience that this will equalize the cost of operation and will do a little more than that, because the foreign ship owner whose ship is in the United States has his ship in a foreign port, while the American ship owner has his ship in the home port, and any ship owner will tell you that it costs more to do it in a foreign port than in the home port where it is under his own supervision." (Extract from the testimony given by Mr. Furuseth in Synopsis of Hearing before the Subcommittee of the Committee on Commerce of the United States Senate relative to involuntary servitude imposed on seamen, p. 5.)

Speaking at the same hearing in opposition, Mr. Robert Dollar, President of the Dollar Steamship Co. of San Francisco, said:

". . . Gentlemen, do you understand thoroughly what this means ? It means that any contract that a sailor may make in a foreign country is abrogated when he comes here. It is a provision for a breach of contract by any sailor coming to this country. . .Representing over 3,000 merchants of the Chamber of Commerce of San Francisco, who are not interested in shipping, I protest against the passage of this clause. Outside of the trouble of changing some 21 treaties, causing ill feeling between foreign nations and ourselves, it will seriously affect the carrying of our products by materially increasing the rate of freight and causing the dear American public to foot the bill, as we will have to depend on foreign ships to move our products in the foreign trade for many years to come." (Ibid, p. 5-6.)

It was formerly recognized by all of the nations that they were obligated, even in the absence of treaty stipulations, to cooperate for the arrest and detention of deserting seamen. During the Revolutionary Wars, when Great Britain was engaged in conflict with France, there was much friction between the United States and Great Britain because of the refuge which their deserting seamen found in our ports. The United States contended that in the absence of a treaty they were not bound to deliver over the deserters.¹⁵

The practical importance of the view expressed by the United States was lessened by the numerous treaties in which the obligation to deliver deserting seamen was included, but the enforcement of the Act of March 4, 1915, will put an end henceforth to the cooperation of the United States in this matter, since it directs the President to abrogate conflicting articles of treaties (see § 16 above.)¹⁶ It would, however, appear that President Wilson did not comply with the provisions of the Act relative to the abrogation of the articles of the treaties in question.¹⁷

As indicated by the testimony of Mr. Andrew Furuseth, President of the organization which was most influential in securing the adoption of this legislation, one of the purposes of the application of Section 16 of the Act to foreign vessels is to force the payment to foreign seamen of a scale of wages sufficiently high to prevent them from deserting when they reach the ports of the United States.¹⁸

It is a question open to serious doubt whether the United States has a right to use its sovereign power for such a purpose. It must, however, be borne in mind that this section of the Act has the declared purpose of putting an end, within American jurisdiction, to the arrest of deserting seamen. If it be established that the detention and arrest of deserting seamen is no longer in accord with the prevalent sentiments of humanity, upon this basis, the United States would find a justification for refusing its cooperation. In such an instance as this, where the United States is called upon to arrest individuals and to deliver them by force over to their foreign employers, there can be little doubt that the opinion of the United States itself in regard to the reasonableness of the use it has made of its sovereign power should be presumed to be correct. Nevertheless, it is evident that this refusal of cooperation will have a serious effect upon any foreign vessel which touches, even occasionally, at an American port, and that the foreign nations might have some cause for protest on the ground that it constituted a departure from the ancient and generally recognized procedure of all states.¹⁹

As indicated by the testimony of Mr. Andrew Furuseth, President of the organization which was most influential in securing the adoption of this legislation, one of the purposes of the application of Section 16 of the Act to foreign vessels is to force the payment to foreign seamen of a scale of wages sufficiently high to prevent them from deserting when they reach the ports of the United States.¹⁸

It is a question open to serious doubt whether the United States has a right to use its sovereign power for such a purpose. It must, however, be borne in mind that this section of the Act has the declared purpose of putting an end, within American jurisdiction, to the arrest of deserting seamen. If it be established that the detention and arrest of deserting seamen is no longer in accord with the prevalent sentiments of humanity, upon this basis, the United States would find a justification for refusing its cooperation. In such an instance as this, where the United States is called upon to arrest individuals and to deliver them by force over to their foreign employers, there can be little doubt that the opinion of the United States itself in regard to the reasonableness of the use it has made of its sovereign power should be presumed to be correct. Nevertheless, it is evident that this refusal of cooperation will have a serious effect upon any foreign vessel which touches, even occasionally, at an American port, and that the foreign nations might have some cause for protest on the ground that it constituted a departure from the ancient and generally recognized procedure of all states.¹⁹

Dana, in a note to Wheaton, defines with precision the limitation which international law places upon the exercise of jurisdiction over foreign merchant vessels. He says: ''The state of international law on the subject of private vessels in foreign ports. . .may be said to be this : So far as regards acts done at sea before her arrival in port, and acts done on board in port, by members of the crew to one another, and so far as regards the general regulation of the rights and duties of those belonging on board, the vessel is exempt from local jurisdiction; but, if the acts done on board affect the peace of the country in whose port she lies, or the persons or property of its subjects, to that extent that state has jurisdiction. The local authorities have a right to visit all such vessels, to ascertain the nature of any alleged occurrence on board. Of course, no exemption is ever claimed for injuries done by the vessel to property or persons in port, or for acts of her company not done on board the vessel, or for their personal contracts or civil obligations or duties relating to persons not of the ship's company.²⁰ (Richard H. Dana's edition of Wheaton, § 95, note 58; quoted in Moore's Digest of International Law, vol. II, p. 297-8.)

From the New York Times of July 7, 1921, we quote the following Washington dispatch: "Despite diplomatic protest, Attorney General Daugherty has upheld the ruling of his predecessor that alcoholic liquors cannot be transported across territory of the United States in transit from one foreign country to another. The opinion was sent to the Customs Division of the Treasury to-day, and a conference of custom officials was held to determine methods of enforcing it.

"Protests against this interpretation of the prohibition amendment and enforcement law were filed some months ago by the British Embassy in behalf of Canadian citizens and by the Italian Embassy after Attorney General Palmer had rendered an opinion on February 4th that such transit of liquor was unlawful. In view of the diplomatic representations following the change of Administration, the case was reopened and hearings held at the Department of Justice. "Considerable study of customs regulations and practices will be entailed by the decision, it was said, since other commodities moving through the same traffic lanes are not objectionable [unobjectionable] under the laws of the United States."

An examination of the opinion of February 4, 1921, above referred to will show that the acting Attorney General did not consider the question of in how far it was the intention and the right of Congress to deny transit to certain articles. The text of the opinion as communicated by Acting Attorney General Frank K. Nebeker to the Secretary of the Treasury, was as follows:

"Sir : This will acknowledge receipt of your request for an opinion as to whether the Eighteenth Amendment to the Constitution and the National Prohibition Act prohibit or affect in any way 'in transit ' shipments of liquor for beverage purposes touching at the ports of or moving through the United States when originating in and destined to foreign countries under the provisions of section 3005 of the Revised Statutes as amended by the Act of May 21, 1900 (31 Stat. 181).

"Section 3005, Revised Statutes, as amended is as follows :

" 'All merchandise arriving at any port of the United States destined for any foreign country may be entered at the custom-house, and conveyed, in transit, through the territory of the United States, without the payment of duties, under such regulations as to examination and transportation as the Secretary of the Treasury may prescribe.'

"Section 3 of Title II of the National Prohibition Act (41 Stat. 308) provides:

" 'No person shall on or after the date when the eighteenth amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this Act . . .'

"By virtue of this provision any and all dealings in intoxicating liquors for beverage purposes within the jurisdiction of the United States are prohibited, except in so far as authority therefore may be found elsewhere in the Act. Nowhere therein is transportation for beverage purposes authorized; except that the prohibitions of section 20 of Title III (41 Stat. 322), which prohibits the importation or introduction into and the manufacture, sale, transportation, etc., within the Canal Zone, are made inapplicable to liquor in transit through the Panama Canal or on the Panama Railroad. By expressly excepting transportation through the Panama Canal and on the Panama Railroad it is to be assumed that Congress intended that transportation elsewhere should be prohibited.

"By virtue of section 33 of Title II (41 Stat. 317), the possession of liquor for beverage purposes is permitted in the home, provided same is for the personal consumption only of the owner thereof and his family and bona fide guests. No other possession for beverage purposes being authorized, no other possession is lawful.

"In the absence of express authorization, in order to arrive at the conclusion that liquor for beverage purposes arriving at any port of the United States destined for any foreign country may be entered at the customhouse and conveyed, in transit, through the territory of the United States, it would be necessary to hold either that such liquor while in transit is neither possessed nor transported within the United States, or that the Prohibition Act does not apply to liquor not intended for beverage consumption within the United States. Neither of these positions is tenable. The word transport as used in the Act must be presumed to have its usual meaning, viz, to carry or to convey from one place to another, the taking up of persons or property at some point and putting them down at another (Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196) ; and whether the possession during transportation be in the carrier (which I think it is) or in the owner, both transportation and possession are within the territory of the United States. In the second place the Act is not in terms limited to liquor intended for beverage purposes within the United States. By section 1 of Title II (41 Stat. 307) 'liquor' and 'intoxicating liquor' are defined to include any liquors containing over one-half of one per cent of alcohol by volume which are fit for beverage purposes; and by section 2 the manufacture, sale, etc., of such liquors are prohibited except as authorized, regardless of the place where they are intended to be consumed. This is obvious from the prohibition upon their exportation.

"Having arrived at the conclusion that liquor in transit through the United States would be both transported and possessed in violation of the National Prohibition Act, it is not necessary for the purposes of this opinion to determine whether the procedure established by section 3005, Revised Statutes, would involve either prohibited importation or exportation.

"The National Prohibition Act applies to all the territory of the United States that is not otherwise excepted from its operation, and extends to all waters within its territorial limits, including a marine league from the shore ; within those waters the manufacture, sale, transportation, possession, etc., is prohibited.

"My conclusion therefore is that the provisions of section 3005, Revised Statutes, do not apply to intoxicating liquors for beverage purposes, and that the National Prohibition Act prohibits 'in transit' shipments of such liquors touching at the ports of or moving through the United States, though same originate in and are destined to foreign countries." (Opinions of Attorneys General, Vol. 32, p. 419-422.)

In the cases arising from the enforcement of the Eighteenth [Prohibition] Amendment upon foreign vessels within the territorial waters of the United States, prohibition of entry has been interwoven with the matter of transit, as is shown by the following Washington dispatch printed in the New York Times of July 14, 1921:

"Protests against enforcement by customs officials of a section of the Volstead Prohibition Enforcement act which subjects to seizure foreign vessels coming within the three-mile limit with liquor aboard are reaching the State Department. Inquiries have come also from various embassies and legations, which indicate that foreign Governments are becoming concerned at threatened interference with their shipping.

"It is pointed out that a British ship bound from Halifax to Jamaica could not put into any American port for fuel or supplies without risk of seizure if she carried spirits in her cargo, under the construction which has been given to the law by the recent decision of Attorney General Daugherty, affirming an opinion of his predecessor.

"Furthermore it is expected by the shipping interests that another opinion, withdrawing the present privilege of sealing up the bar supplies on the ocean liners within the three-mile limit, is coming, in which case these vessels also would be subject to seizure if they carried liquors for the use of passengers.

"Finding that the State Department can do nothing in the matter, shipping representatives are now directing their inquiries to the Treasury and Department of Justice. It is understood that they are seeking a stay in the execution of the new orders to permit a test case in the courts."²¹

The New York Times of August 5, prints a special report from Washington which contains the following statement: "It was learned at the Department of Justice that there, is an understanding among the Federal District Attorneys in coast cities that there will be no interference with liquor-carrying ships until the set case brought at the instance of the Cunard Line has been settled. This case concerns the question of 'liquor in transit,' in other words the right of a ship to touch at an American port if her bar is sealed when she enters the three-mile limit. The Department of Justice will aid the expedition of this suit and will throw no legal obstacles in the way of its completion, instead endeavoring to bring it to a conclusion as soon as possible."

The prohibition or restriction, upon humanitarian grounds, of the entry of goods, is alluded to by Stapleton, who writing in 1866 complains of the action of the British Parliament:

"By the Act slave-grown sugar was admitted into English markets on equal terms with sugar produced by free labor.

"The effect of this has been, as predicted at the time, that most of our West Indian colonies have been ruined: and, as was strongly pressed by the late Sir Robert Peel as a certain result, Cuba and other slave trading States have carried on the slave trade with previously unexampled vigor, and flourished under its operation." (A. G. Stapleton: Intervention, 1866, p. 265-6.)

In all these instances in which the state has made use of its authority to exclude or to regulate foreign commerce for the purpose of enforcing regulations of a humanitarian nature, there is evidently danger of a serious conflict between the two States.

On the one hand the local authority has a right to insist that the rights of aliens and foreign commerce shall not be unreasonably used within its jurisdiction to thwart or prevent the enforcement of all reasonable laws.

But on the other hand the local authorities should not impose unreasonable conditions upon aliens or shipping temporarily within its jurisdiction.

Where it is merely a question of preventing the advent of foreigners from interfering with the due enforcement of the local law, there is usually little difficulty in reaching some reasonable interpretation or adjustment. But when the object of the territorial sovereign is to make use of transit or temporary sojourn as a leverage to compel foreigners and foreign shipping to modify their own regulations, the act ceases to be one of self-defense and sovereignty and becomes virtually either an act of intervention or of interference.

Under ordinary circumstances such an act would be an interference which other independent states would not tolerate and it would be corrected by recourse to appropriate measures of retaliation. When, however, the purpose is humanitarian, so that the act in question may be defended upon the ground that it is necessary for the protection of the interests of all the states and of mankind in general, the practice of states shows this to be a justification. The question is however new and the limits of the conflicting rights have not as yet been described.

The powers which control any society must ever be on the watch to protect it from danger. It is not possible to define exactly beforehand the nature of the peril which may arise. In international, as in national affairs, those in authority must be allowed to exercise a wide discretion over life and property when they believe it necessary for the protection of the common

safety. This exercise of discretion is called police power and justifies any curtailment of the rights which are ordinarily enjoyed by the separate states, provided the action to be taken seems reasonably necessary for the protection of the common safety. The determination of what is necessary is perforce left to the decision of those in authority. In international affairs this means that the decision must be left to those powers who exercise a paramount direction over world affairs, - that is, to the great world powers. Sometimes they act in concert. Each of the world powers also has a particular region outside of Europe where it often exercises this police power as if by a tacit man date from the other powers.^22a

The aim of the political system of the nations is well expressed in Senator Fessenden's definition, intended, it is true, to apply only to the United States (Life of Fessenden, Vol. I, p. 52) : "The great principle of their political system," he said, "was the largest liberty of thought and the greatest freedom of individual action consistent with social order."

Although we define police action as a justifiable curtailment of rights, we might in almost all the instances in which it is applied consider it rather as the prevention of that abusive use of a recognized right which by reason of the abuse thereof becomes unlawful.

Westlake, denying that the right of sovereignty permits a belligerent to lay even in his own territorial waters floating mines which do not become innocuous as soon as they get loose, remarks that "...the right of a state in the waters subject to its sovereignty can certainly not rank higher than that of a private owner in the land or water which is his property," and he adds, "But no principle is more firmly established in the science of law than that which says to an owner sic utere tuo ut alienum non laedas [so use thine own as not to injure another]." (International Law, Vol. II, p. 313.)

Phillimore begins his chapter on Intervention with the following observation: "In all systems of private jurisprudence, provision is made for the placing upon the abstract right of individual property such restrictions as the general safety may require. The maxim, 'expedit enim reipublicae, ne quis sua re male utatur',²³ belongs to the law of all countries (Inst. I, VIII, 2). The Praetorian Interdict of the Roman, the Injunction of the English Law, give effect to this principle by preventing the mischief from being done, instead of endeavoring to remedy it when done. Some analogous right or power must exist in the system of International Jurisprudence." (Phillimore, 1 ed., Vol. 1, 1854, §§ 386-7, p. 433.)

A good illustration of this preventive action was the exclusion of the Bonapartes from the throne of France. (Angeberg: Congres de Vienne, II, p. 1183-4. Cf. Westlake: International Law, vol. I, p. 318 ; Stapleton: Intervention, p. 139.)

In his notes to the passage just quoted, Phillimore gives references to the "Digest" of the instances where property is subjected to restriction on account of the general good. He also gives a quotation from Ahrens (Cours de Droit naturel ou de Philosophic du Droit, Brussels, 1844, p. 296), which when translated reads :

"Every right has its limits: it is limited by the corresponding rights of all the members of a society."^23a

But there are, as we have said, instances where police action is necessary, irrespective of any abuse of a right. In our municipal law, the fire marshal may dynamite any house when in his opinion it is necessary to save the city.²⁴

President Angell, in his Phi Beta Kappa address, asks: "May not the great powers, if they see a small power pursuing a policy dangerous to the general peace of all or of several, justly intervene to prevent it, as any government checks the violence of one of its own citizens?

"It is evident that a power so vast is in danger of being abused. If it is unwisely used to interfere unnecessarily with the independence of the less powerful sovereign states, it will constitute a menace to society no less serious than that which it is intended to ward off.

With a view to preventing abuse, it has been proposed to restrict the exercise of this power to collective action, but just as in the case of humanitarian intervention the suggestion is full of difficulties, such as the delay inevitable in organizing any collective action. Furthermore the tendency of states to roll off the burden of police action upon the state whose security is more directly threatened cannot easily be overcome. The state immediately threatened cannot delay action indefinitely, and other states sometimes affect indifference, feeling secure in the knowledge that their interests will be protected by the state most directly concerned.

Hall (4th ed., § 95, p. 308) intertwines his discussion of international police with humanitarian intervention, but he selects for favorable comment two instances of international police carried out by collective action: the formation of Belgium (1833), and the arrangements adopted by the Congress of Berlin (1878). "Still," he concludes, "from the point of view of law, it is always to be remembered that states so intervening are going beyond their legal powers. Their excuse or their justification can only be a moral one. "President Angell (Phi Beta Kappa address on the European Concert, p. 9), has drawn attention to the error into which Hall falls. After repeating the extract given above, Dr. Angell observes: "I venture to ask in respect to the last two sentences I have quoted from Mr. Hall whether, if the acts of intervention under consideration in any given case have an excuse or justification which is a moral one, the states performing them can be going beyond their legal powers, provided by the phrase 'legal powers' we mean powers allowable under international law. For how do we determine what powers are thus allowable except by finding the moral sense of nations as expressed in their usages? and the moral sense of Europe appears plainly to be that the great powers may infringe upon the independence and equality of the minor states, if such infringement is essential to the preservation of the general good. If such infringement is justifiable on moral grounds, is it not by that fact to be regarded as justifiable in international law?" ²⁵

It is a matter for regret that the writers on international law have not examined International Police Action with the care the importance of the subject warrants.

The most frequent application of "international police" is intervention to prevent an unnecessary war or to bring a conflict to an end by imposing a settlement. A well known instance was the intervention of Great Britain and France to compel Holland to acquiesce in the settlement which the powers had reached relative to the separation of Belgium. (Pitt Cobbett: Cases, 3 ed., vol. I, p. 347.) Again in 1886 the powers blockaded the coasts of Greece to prevent that state from making war on Turkey. (Ibid, p. 348.) Similarly the powers intervened to save Greece from the victorious Turks when they imposed the peace settlement of Sept. 18, 1897. (Ibid, p. 348.)

Provisions in regard to the limitations of armament and the guarantees of the independence and integrity of states when adopted for the preservation of international peace and security (see § 17), are instances of international police.

The justification of President Roosevelt's intervention in favor of Panama rests upon the principles we have been discussing. Colombia as every one knew could not build the canal herself and might therefore be required to permit some other power or powers to undertake the task which was so manifestly beneficial to the commerce of all the nations.²⁶

Colombia was sovereign over the territory in question, but sovereignty does not, as we have seen, permit a state to make an abusive use of its rights. Undoubtedly, Colombia would have had the right to attempt in the first place to build the Canal herself, and if she could not or would not do this, she had a right to demand that any power undertaking the work should compensate her reasonably for the territory required and for any damage to her possessions. Instead of adopting this course, the Colombian Government kept putting obstacles in the way of the United States, who was seeking an agreement with Colombia in order that she might acquire upon reasonable terms Colombia 's acquiescence in the undertaking to build the canal. This abusive action of the Colombian Government would have amply justified the United States in seizing the needed territory. In that event the additional cost of the military operations would justly have been chargeable to Colombia's account and any balance left after deducting these costs from the value of the land seized would have belonged to Colombia.

The action of the Roosevelt administration was not so drastic. The same legitimate result was attained by recognizing the Republic of Panama and signing with that country a satisfactory treaty for the construction of the Canal. If Colombia had not given the United States just ground for intervening, the premature recognition of Panama and the policing of the Isthmus to prevent Colombia from landing troops and suppressing the revolt would have been unjustifiable acts of interference. As it was, however, they were only milder means of enforcing the right of the United States acting for all the states to build the Canal.

In enforcing this right, the United States was acting as the agent or mandatory of all the states of the world. So acting, President Roosevelt had a right to employ such force as was reasonably necessary to attain the legitimate purpose in view. The premature recognition of the Republic of Panama, which was itself an act of intervention, and the additional act of intervention to prevent the suppression of the revolt, were as we have just said milder measures than the direct seizure of the territory and the forcible overcoming of Colombia's resistance.

In the discussion of this question, much emphasis has been laid on the obligation assumed by the United States in article 35 of the Treaty of 1846 to guarantee the integrity of Colombia. This obligation applied only to protect Colombia from foreign aggression.²⁷

In the preceding discussion, we have been considering the question of the Canal as though Colombia had been completely sovereign over the territory, through which it was to pass. This was not the case. Over the Isthmus the United States had acquired, with the assumption of the burden of police certain rights of supervision.²⁸

This supervisory control did not give the right to appropriate the Canal Zone, but it gave the supervisory state a strong justification for whatever action might be reasonably necessary for the complete fulfilment of the trust to which it was committed. The United States has been accused of instigating the Panama revolution from which it so greatly benefited. This mere assertion has divided the country somewhat along the line of political cleavage between the two camps of those who supported President Roosevelt and his policies on the one hand, and those who disapproved on the other. No shred of evidence has ever been adduced to show that the United States did instigate the revolution.²⁹

The failure to understand the true nature of police action has led many well-meaning individuals, some of them jurists of high standing, to condemn the action of President Roosevelt. They have seen no further than the right of Colombia as the sovereign of the Isthmus to do with it as she liked.³⁰

Those who entertain such sentiments have urged and supported the agreement to pay Colombia $25,000,000 indemnity; but with a strange contradiction this payment is not to be accompanied with any apology for the offense which it acknowledges.

Assuredly it is hard to defend such a payment. If the United States recognizes that it was at fault, it should apologize. If there be a reasonable doubt of the matter, arbitration is an honorable solution.

In the absence of any juridical or any ethical obligation to compensate Colombia, a donation of $25,000,000 will be open to misinterpretation, and since the honor of the United States is concerned it would be neither wise nor just.³¹

Discussing in an address before the Union League Club of Chicago the ''Ethics of the Panama Question," Mr. Root did more than cover the ethical grounds of justification for President Roosevelt's act. He also laid down the fundamental juridical principle which governs all action of a similar nature. Mr. Root said in part:

"It frequently happens in affairs of government that most important rights are created, modified, or practically destroyed by gradual processes, and by the indirect effect of events ; and that only an intimate knowledge of the process enables one to realize the change until some practical question arises which requires everyone interested to study the subject. If the typical New Zealander, ignorant of our political history, were to read our Constitution and laws, he would suppose that a presidential elector in the United States is entitled to exercise freedom of choice in his vote for President, and he would be quite certain that we were guilty of gross injustice in the treatment which we should certainly accord to an elector who voted for anyone but the candidate of his own party. In forming this judgment, he would be misled by the form and appearance of things which he found upon the statute book, and would misjudge a people who were acting in accordance with the substance and reality of things as they knew them to be. In the same way, they are in error who assume that the relations of Colombia to the other nations of the earth as regards the Isthmus of Panama were, in truth, of unqualified sovereignty and right of domestic control according to her own will, governed and protected by the rules of international law, which describe the attributes of complete sovereignty; that the relations of Colombia to the people of Panama were, in truth, those appearing in the written instrument called the Constitution of Colombia; or that the rights and duties of the United States in regard to the Isthmus were confined to the simple duty of aiding Colombia to maintain her control over the Isthmus, and the simple right to ask from Colombia privileges which that country was entitled to grant or withhold at her own pleasure.

"The stupendous fact that has dominated the history and must control the future of the Isthmus of Panama is the possibility of communication between the two oceans. It is possible for human hands to pierce the narrow 40 miles of solid earth which separate the Caribbean from the Bay of Panama, to realize the dreams of the early navigators, to make the pathway to the Orient they vainly sought, to relieve commerce from the toils and perils of its 9,000 miles of navigation around Cape Horn through stormy seas and along dangerous coasts with its constant burden of wasted effort and shipwreck and loss of life, and to push forward by a mighty impulse that intercommunication between the distant nations of the earth which is doing away with misunderstanding, with race prejudice and bigotry, with ignorance of human rights and opportunity for oppression, and making all the world kin.

"Throughout the centuries since Philip II sat upon the throne of Spain, merchants and statesmen and humanitarians and the intelligent masses of the civilized world have looked forward to this consummation with just anticipations of benefit to mankind. No savage tribes who happened to dwell upon the Isthmus would have been permitted to bar this pathway of civilization. By the universal practice and consent of mankind they would have been swept aside without hesitation. No Spanish sovereign could, by discovery or conquest or occupation, preempt for himself the exclusive use of this little spot upon the surface of the earth dedicated by nature to the use of all mankind. No civil society organized upon the ruins of Spanish dominion could justly arrogate to itself over this tract of land sovereignty unqualified by the world's easement and all the rights necessary to make that easement effective. The formal rules of international law are but declarations of what is just and right in the generality of cases. But where the application of such a general rule would impair the just rights or imperil the existence of neighboring States or would unduly threaten the peace of a continent or would injuriously affect the general interests of mankind, it has always been the practice of civilized nations to deny the application of the formal rule and compel conformity to the principles of justice upon which all rules depend. The Danubian Principalities and Greece and Crete, and Egypt, the passage of the Dardanelles, and the neutralization of the Black Sea are familiar examples of limitations in derogation of those general rules of international law which describe the sovereignty of nations." (Extract from address by Hon. Elihu Root on "The Ethics of the Panama Question," before the Union League Club of Chicago, Feb. 22, 1904, printed in Senate Document 471, 63rd Congress, 2nd Session, p. 37-38.)

The subject of supervisory or paramount control is considered in the following section, but in relation to the question of Panama we may here appropriately quote a letter which President Roosevelt on January 18, 1904, addressed to Cecil Arthur Spring-Rice, at the British Foreign Office, London:

"I have been having most interesting times. I have succeeded in accomplishing a certain amount which I think will stand. I believe I shall put through the Panama treaty (my worst foes being those in the Senate and not those outside of the borders of the United States) and begin to dig the canal. It is always difficult for me to reason with those solemn creatures of imperfect aspirations after righteousness, who never take the trouble to go below names. These people scream about the injustice done Colombia when Panama was released from its domination, which is precisely like bemoaning the wrong done to Turkey when Herzegovina was handed over to Austria. It was a good thing for Egypt and the Sudan, and for the world, when England took Egypt and the Sudan. It is a good thing for India that England should control it. And so it is a good thing, a very good thing, for Cuba and for Panama and for the world that the United States has acted as it has actually done during the last six years. The people of the United States and the people of the Isthmus and the rest of mankind will all be the better because we dig the Panama Canal and keep order in its neighborhood. And the politicians and revolutionists at Bogota are entitled to precisely the amount of sympathy we extend to other inefficient bandits." (Theodore Roosevelt and His Time, shown in his own letters, by Joseph Bucklin Bishop, New York, 1920, Vol. I, p. 297.)

In most of the instances of recourse to international police power, it will be found that the action is taken in regard to some state over which there has grown up in some sort an habitual control as was the case in regard to the Isthmus of Panama.

International law is based upon the principle of territorial sovereignty and looks to those communities which have the ability to maintain their independence for the enforcement of international law within the jurisdiction over which they are recognized as sovereign. The states which fulfil this expectation are recognized as independent and as full members of the society of nations. But international relations are complicated by the presence of a considerable number of states who, notwithstanding the formal recognition of their full legal status as members of the society of states, are not in fact always able to fulfil satisfactorily the requirements which international law imposes upon them, either because they are unable to exact from other states a due regard for their international lights or because within their own jurisdiction, they are unable to maintain order and to secure for aliens the peaceful enjoyment of the rights to which they are entitled.³²

It is evident that the neighboring states suffer the principal inconvenience from this situation. Their extensive relations with the state in question oblige them more frequently to have recourse to force to secure redress for the violation of their rights, and they are constantly a prey to apprehension lest some powerful state, claiming to seek redress, acquire a dangerous political control over these adjacent territories. States of the second rank are not able to offer any effective opposition to such designs, but if amongst the neighbors of the delinquent state (incapacitated state), there be one of the first rank, it will never permit a distant rival to establish its influence and control so near at hand. But it is difficult to interfere with the action of any state seeking reasonable redress, unless the interfering neighbor state is willing to assume a certain responsibility to supervise the incapacitated state and to see that it fulfils its obligations. If the great power that exercises this supervision is careful to refrain from all unnecessary interference in the internal affairs of the state in question, the incapacitated state will generally recognize that the supervising state shields it from falling a prey to the rapacity of some other less considerate power. In the course of time, and as a result of the recognition of the mutual advantage of this relationship, the state of the first rank will be established de facto in a position of supervision or control over its weaker neighbor.³³ Even though this situation receive not recognition in international law, in practice it will be taken into account by the governments of all the states.

There are various degrees of this supervisory control. The United States exercises such supervision over the states of Central America, and in some measure over South America as well. This is what is sometimes spoken of as a regional control.³⁴

Other states exercise a similar authority over adjacent states that are not by their own unaided efforts able effectively to maintain their full international status.

Captain Mahan, referring to the parable in the Bible (Matthew XXVI, 14-29) maintains "that the pos session of power is a talent committed in trust, for which account will be exacted, and that, under some circumstances, an obligation to repress evil external to its borders rests upon a nation, as surely as responsibility for the slums rests upon the rich quarters of a city." (A. H. Mahan: Some Neglected Aspects of War, p. 107.)

The supervisory relationship is held by some to affect the equality and the independence of the states concerned, but this effect does not flow from the regional control itself, but the regional control is merely a recognition and a result of a condition which exists de facto. It is of first importance for the successful development of international law and the harmonious conduct of international relations that this supervisory control should be more fully understood and recognized as a part of international law.

The following unimportant incident illustrated this need of a better recognition of the correct principle: When the French landed men in Haiti during the disturbance in 1915, the account in the New York Sun, June 23, stated: "As a result of the French having landed men, it became necessary for the United States to send a bigger ship and an officer of higher rank than the Descartes and her commander." If the supervisory control of the United States in Haiti were to be fully recognized in international law, such a matter of ceremonial procedure would give way to the more direct authority of an American commander whatever might be his rank or the size of his ship. In practice this regional control is found to adapt itself so perfectly to the practical application of the principles of international law that this system, which was at first a mere compromise applied in special instances has now become an important part of our international system.³⁵

Although this relationship of regional control has not yet received that formal recognition which entitles it to rank as law, it is so generally applied in practice as to approximate law, and to make almost certain the attainment of that status in the not distant future. For the present, in international practice, whenever it is a question of relations with a state within a regional control, it is important to remember:

(1) That the rule of noninterference does not apply in actual practice to the relations between the paramount state and its wards unless due allowance is made for the effect of this regional control.

(2) That any interference by a third state, that is a state outside this regional control, with a state included therein will probably, and not unreasonably, be regarded by the paramount state as an unjustifiable interference with its vital interests.

(3) That notwithstanding the foregoing, any state may, when its international law rights are denied, proceed against the delinquent state to obtain redress, provided always that a reasonable opportunity is afforded to the paramount state to undertake itself the burden of exacting on the part of its ward a compliance with its international obligations. Whenever the paramount state is unwilling or unable to induce its ward to fulfil its international obligations, the injured state may interpose directly on its own account.

The development of regional control or hegemony of a great power is the natural course of development, as is shown by the position of the United States on the American Continent, and of Great Britain, France, and Japan in Asia and in parts of Africa. Before the war, Germany exercised a like influence over certain neighboring states.³⁶ But in Europe the great powers have not been able to develop this particular control or supervision over smaller and more backward states because of the proximity of the great states to one another, and because of the keen rivalry between them.³⁷ The balancing of rival interests which has blocked the action of any single state in Europe has made necessary combined or collective intervention for the regulation and settlement of matters of common concern.³⁸ The most powerful states have found it expedient or necessary to have recourse to such collective action so frequently that it became customary to speak of them in their collective capacity as the European Concert.³⁹ In the Balkans we find the best expression of this concerted action of the European powers to regulate international affairs and to prevent the outbreak of war with its menace for the security of all the states. For centuries the Turkish Empire had been disintegrating. Russia and Austria were gnawing at its vitals. Their procedure was to defend the Christian populations against the oppressions of the Turks and to seek to incorporate them within their own empires, but the other European states, who were not willing to allow this increase of power to Austria and Russia, threw their influence toward the preservation of the Turkish Empire, and, when this was impossible, they insisted upon the establishment of small independent states.⁴⁰ For many years Great Britain protected the Turkish Empire against Austria and Russia until Germany took its place and pursued a similar policy. The result has been to place Turkey de facto in the position of a ward of Europe, obliged to conform to the will of a European Concert when it could speak with the force based upon the agreement of the great powers, but when, after the dissolution of the Dreibund, or Kaiserbund (1888), as it was sometimes called, Russia and Austria became partisans of rival political systems or groups, the powers of Europe then found it expedient to substitute for the previous European Concert a dual control in which Austria and Russia should act for the two rival alliances or political groups of Europe. The other powers counted upon this machinery to maintain the status quo, for it was evident that these antagonists could not agree on anything except it were a measure necessary to prevent war or to protect the general interests.

Aside from the rights of the Concert corresponding to that of a paramount state in its sphere of influence, the European Concert has an added authority which comes from the fact that its action is collective.⁴¹

Everyone knows the elementary principle of administrative law that although it is for the many to advise, performance should be left to one, and the Concert of Europe has shown a tendency to conform to this rule in the substitution of the dual Balkan control for the old Concert. Following along this same line of reasoning, France's landing troops in Syria in 1860 has been often spoken of as the carrying out of a mandate from Europe.⁴² The victory of the Allies has afforded an occasion to carry this idea still further, and to recognize the mandates of certain powers to supervise the affairs of certain designated states or territories. They act as the agents, that is mandatories, of the collectivity of powers making the assignment.⁴³ It would, perhaps, be accurate to say as the mandatory of Europe, since these same powers exercise, for the present at least, a paramount control over European affairs. These so-called mandates, if prolonged and associated with a particular state or region, would approximate the regional control discussed above, and to the extent of the terms of the recognition thereby accorded, the supervision of any power within the region of its control now exercised de facto will become de jure an institution of the public law of nations.⁴⁴

The exercise by a great state of police and supervisory powers over a small state seems at first appearance to impinge upon the equality of the small state, and to interfere with that independence to which it is entitled under the law of nations. There is, however, no violation of international law since the supervising state can only use its authority to compel the supervised state to fulfil its international obligations. Any supervisory action not reasonably necessary to this end is an abuse of force, and is not rightly classed as police or supervisory action.⁴⁵

The state may be worthy of respect for its culture and for its influence, yet lack the material resources or traits of character necessary to enable it unaided to discharge its international obligations. We should recognize that the state supervised may possibly be, in certain respects at least, superior to the supervising power. In any event, no good can come of denying the facts of international relations and trying to sustain a theoretical equality of states which has no foundation in practice nor in law when the true principles of international law are correctly understood and applied.⁴⁶

In international law, rights are always correlative with duties, and no state can expect to retain the right of sovereign decision, called independence, when by its conduct it makes clear that it cannot fulfil the international law obligations of an independent and sovereign state. In so far as the state under tutelage is able to fulfil its duties, let it lay claim to exercise the corresponding attributes of independence, and let the trustee state, supported by the public opinion of the other states, and if need be by their intervention, hasten to help and not to retard this progress toward full independence and sovereign statehood. When a state ignores its obligations, be it in even an isolated instance, it is liable to encounter the interposition of the state it has wronged, or the intervention of other states who perceive that such conduct constitutes an assault upon the principles sacred to them all, and necessary to the preservation of international society. So regarded, all justifiable intervention is a case of supervision instituted for the governance of a particular matter. In the succeeding sections, we shall examine the occasions in which such intervention is justifiable.

FOOTNOTES:

¹ The meaning of "international police" is more fully considered below, § 9. Here we need only note that it is used in the sense of justifiable action to enforce a compliance with the provisions of international law.

² "Interposition" is more generally in use than "counter-intervention" but since "interposition" has lately been adopted as the term to cover action of a government undertaken in defense of the rights of nationals, it will be preferable to avoid confusion by employing "counter-intervention." Whenever a state justly intervenes to oppose an unjustifiable interference, "intermeddling" may be used to designate unjustifiable interference, which is an attempt to prevent other states from settling their own affairs in their own way. Hall uses "counter-interference" (Hall: International Law, 4 ed., § 93, p. 306). Creasy uses "counter-intervention" (Creasy: First Platform, p. 306; cf. Rougier: Guerres Civiles, § 80, p. 338).

³ "Third states," writes Westlake, "may therefore step in, in support of justice or of their interests so far as consonant with justice." (International Law, vol. I, p. 320; cf, ibid, p. 317.)

Hall expresses the same opinion: "When a state grossly and patently violates international law in a matter of serious importance, it is competent to any state, or to the body of states, to hinder the wrongdoing from being accomplished, or to punish the wrongdoer. Liberty of action exists only within the law. The right to it cannot protect states committing infractions of law, except to the extent of providing that they shall not be subjected to interference in excess of the measure of the offence; infractions may be such as to justify remonstrance only, and in such cases to do more than remonstrate is to violate the right of independence. Whatever may be

the action appropriate to the case, it is open to every state to take it. International law being unprovided with the support of an organized authority, the work of police must be done by such members of the community of nations as are able to perform it." (Hall: International Law, 4 ed., 1895, § 12, p. 57-8 ; cf . Oppenheim : International Law, 2 ed., vol. I, § 9, p. 13; Lorimer: Institutes of the Law of Nations, vol. I, p. 10 ; Lawrence : Principles, 4 ed., 1910, § 64, p. 127 ; Sheldon Amos : Political and Legal Remedies for War, p. 187-8 ; Vattel : The Law of Nations, Introduction, § 22, Carnegie Translation, p. 8; ibid. II, ch. I, § 4, p. 114) ; Stapleton: Intervention, p. 125 ; Rossi (Archives de droit et legislation, 1837, vol. I, p. 372.)

⁴ Woolsey, discussing "whether a state is bound to aid other states in the maintenance of general justice," although he himself recognizes the obligation of cooperation, writes:

"The prevalent view seems to have been that, outside of its own territory, including its ships on the high seas, and beyond its own relations with other states, a state has nothing to do with the interests of justice in the world. Thus laws of extradition and private international law are thought to originate merely in comity. Thus, too, crimes committed by its own citizens abroad it is not bound to notice after their return home. Thus, again, contraband trade is held not to begin within the neutral's borders, and outside of them, as on the high seas, concerns the belligerent alone. And again, when a nation commits a gross crime against another, third parties are not generally held to be bound to interfere. This is the most received, and may be called the narrow and selfish view." (Woolsey: International Law, § 20-b, 5th ed., 1878, and later editions. It is interesting to observe how in his first edition, 1860, Woolsey had not yet reached so firm a conviction as to the obligation to intervene in support of international law. )

⁵ In the continuation of the extract from Hall which we have given in a preceding note, that author states :

"It is however for them [the intervening states] to choose whether they will perform it or not. The risks and the sacrifices of war with an offending state, the chances of giving umbrage to other states in the course of doing what is necessary to vindicate the law, and the remoter dangers that may spring from the ill-will produced even by remonstrance, exonerate countries in all cases from the pressure of a duty." (Hall: International Law, 4 ed., 1895, § 12, p. 58.)

⁶ "The right of protection over citizens abroad, which a state holds, may cause an intervention by right to which the other party is legally bound to submit. And it matters not whether protection of the life, security, honor, or property of a citizen abroad is concerned." (Oppenheim: International Law, 2 ed., 1912, vol. I, § 135, p. 192.)

⁷ This is the expression used by Hall (4 ed., p. 304). ''Humanitarian," "for humanity" and "on the ground of humanity" are in general use. Moore (Digest, vol. VI, p. 3) uses removal of "abhorrent conditions." "Against immoral acts" is sometimes employed.

⁸ That the flagrant and persistent violation of the recognized principles of humanity is a violation of international law, as well as of international morality, is indicated by the preamble of the Hague Convention Respecting the Laws and Customs of War on Land, which declares: "Until a more complete code of the laws of war is issued, the high contracting parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience."

The presumption in favor of the rectitude and legality of the action of the sovereign will not be impaired by an occasional abuse and instance of inhumane action. We must admit that international law does not afford any machinery for correcting such occasional abuses. In the absence of an effective sanction under international law to remedy these occasional abuses, we might not be justified in classing them as violations of international law. They are, nevertheless, violations of international morality. The example indicates the important distinction which must always be drawn between international morality, which is a matter left to the conscience of the separate states and to the citizens responsible for the government 's conduct, and international law, which is law because there exists an effective procedure which is generally employed to enforce it.

Rougier, in his interesting study of humanitarian intervention, considers that it is necessary to find a law for the enforcement of which intervention is undertaken (Revue generate,

1910, vol. 17, p. 478), and he finds this law in the solidarity of mankind. It is much simpler and more in accord with the fundamental principles to recognize that such cases of intervention are instances in which international law is being enforced, since international law includes certain universally recognized rules of decent conduct in the treatment of human beings, and guarantees to them a minimum of rights. This question is more fully discussed hereafter.

⁹ Rougier defines intervention on the ground of humanity as follows: "The theory of intervention on the ground of humanity is properly that which recognizes the right of one state to exercise an international control over the acts of another in regard to its internal sovereignty when contrary to the laws of humanity. It applies also to the effort to place this action upon a juridical basis." (Translated from Theorie de 1'intervention d'humanite ; Revue generate du droit international 1910, vol. 17, p. 472.)

Professor Arntz gives the following definition: "When a government, although acting within its rights of sovereignty, violates the rights of humanity, either by measures contrary to the interests of other States, or by an excess of cruelty and injustice, which is a blot on our civilization, the right of intervention may lawfully be exercised, for, however worthy of respect are the rights of state sovereignty and independence, there is something yet more worthy of respect, and that is the right of humanity or of human society, which must not be outraged." (Translation taken from F. W. Payn: Cromwell on Foreign Affairs, p. 72. The French original will be found in Revue du droit international, 1876, vol. 8, p. 675.)

¹⁰ Antoine Rougier: La. theorie de I'intervention d'humanite, Revue générale, 1910, vol. 17, p. 468-526.

¹¹ For the convenience of the student, we have listed here some of the more important references to these expressions of opinion. Some of them will be found also quoted in the pages of this volume : Grotius, Bk. II, ch. XX, XL ; Vattel, Bk. II, § 56 (but cf. Ibid, §§ 7, 55); Heiberg: Nichtintervention, p. 14-15; K. von Rotteck (see H. von Rotteck: Einmischungsrecht, p. 11, 36); Heffter: Volkerrecht, § 45; Woolsey: International Law, 1 ed., 1860, § 42, p. 91 ; Ibid, § 50, p. 111-112; Woolsey, 6 ed., § 43, p. 45, paragraph two; Ibid, § 51, p. 55; Ibid, § 116, p. 178, last paragraph; Ibid, § 20 a, p., 19; Bluntschli: Volkerrecht, § 478, note, § 471 and note; Arntz and Rolin-Jacquemyns : in Revue de droit international, vol. 8, 1876, p. 675 ; Creasy: First Platform of International Law, § 308, p. 297 ; Hall : International Law, 4 ed., § 92, p. 302-3 (Hall bears unwilling testimony. Cf. Ibid, § 92, p. 302-3) ; Sheldon Amos: Political and Legal Remedies for War, p. 158; T. S. Woolsey: America's Foreign Policy, p. 75-6; E. J. Phelps, formerly American Minister to England, in the New York Herald, March 28, 1898 ; W. E. Lingelbach : Intervention in Europe, in Annals of the American Academy of Political and Social Science, July, 1900, vol. 16, p. 25 ; A. Fillet: Principes de droit international prive, Paris, 1903, p. 171; Rivier: Principes, vol. I, p. 256; Kebedgy: Intervention, p. 78 f .; A. Rougier, in Revue générale du droit international public, vol. 17, 1910, p. 475, passim; Hodges: Intervention, p. 91 f.

¹² Among the authorities who deny the legality of humanitarian intervention are the following: Angelius Werdenhagen (according to Esmein's statement in Nouvel revue historique de droit francais et étranger, vol. 24 (1900), (p. 574), in his criticism of the work of Bodin; Vattel: Bk. II, 7, 55. (But cf. Ibid, 56.) Nassau Senior, in 1843, discussing the rights of subjects against their princes, declares, "According to modern international law, it appears to be doubtful whether a nation has any rights against its sovereign; it is certain that, if it had any, they are rights which no third party is justified in supporting." (Edinburg Review, April, 1843, vol. 156, p. 365. On the following page (p. 366) Senior criticizes the manner in which the plea of humanity is made to cloak selfish designs.) See also, Phillimore: Commentaries, 1 ed., 1854, vol. I, § 394, p. 441-2; (It is hard to discover Phillimore 's real opinion). Mountague Bernard : Non-intervention, p. 16-20; Halleck: International Law, ch. IV, § 9, p. 86-7; ch. XIV, § 21, p. 340 (quotes Phillimore, but recognizes the influence of humanitarian considerations) ; Strauch: Interventionslehre, p. 13-14 ; Gareis : Institutions des Volkerreehts (1888), § 26, p. 84; Funk-Brentano et Sorel: Precis, p. 223; Rougier, who affirms the existence of a legal right of humanitarian intervention, nevertheless remarks upon the danger with which it is beset. He writes : "It must be recognized that the ground of humanity is the most delicate of the causes which may be expected to justify the right of intervention and that it raises juridical difficulties in regard to the basis and the extent of this right." (Translated from A. Rougier: Theorie de 1 'intervention d'humanite, Revue générale, vol. 17 (1910), p. 478.)

¹³ It may be of interest to the reader to refer to the authors who deny the legality of humanitarian intervention in law, but who condone it to a greater or less degree in practice.

In the first place, there is Vattel, whom we have given in the preceding note as an authority opposed to the legality of intervention on the ground of humanity: yet we might transfer him to the opposite camp, for he no sooner denies the right "to force him [the erring sovereign] to follow a wiser and juster course," than he adds, "Prudence will suggest the times when it [a foreign state] may interfere to the extent of making friendly representations." (Vattel, Bk. II, 55, Carnegie translation, p. 131). But as a diplomat and practical man of affairs, Vattel must have known that such "representations" are always irritating, and hence not made unless there is the possibility which may become a probability that they will be followed up by stronger measures. Consequently, we must consider this remark to be either without significance, or a justification, of humanitarian intervention when it can be undertaken in such a manner as to be beneficial and effective, and this qualification is always understood as limiting every obligation to undertake intervention. What Vattel says in regard to the right to intervene in a civil war (Bk. II, § 56, Carnegie translation, p. 131) may also be regarded as a qualification of his denial of humanitarian intervention.

In a list of the alleged grounds of intervention which Professor Bernard puts in the form of interrogations, he asks, "May intolerable scandals to public morality, heinous crimes against humanity and justice, obstinate and fruitless civil wars, authorize great powers to step in and assume, for the public good, a kind of police jurisdiction over the offending state?" (Non-intervention, p. 24.) But instead of a categorical answer, Bernard only gives us some general observations which apply to all the grounds of intervention. If we combine what Bernard says on pages 7 and 24, we find that he admits that there may, no doubt, be cases in which the principle that states are members of a community united by a social tie ought to prevail over the principle that states are severally sovereign or independent. Yet, with apparent lack of consistency, he argues, "...but the more closely we examine the matter, the clearer, I think, will be our conviction that the first and highest interest of the great commonwealth of States itself is the independence of its several members, the stronger our reluctance to admit exceptional cases." (Ibid, p. 24.)

In another place where Bernard discusses the alleged benefits of intervention, he declares, "But, in fact, good is hardly ever done by it good, I mean, in any degree commensurate with the evil. On the contrary, even when it dethrones a tyrant, puts an end to a ruinous anarchy, or stanches the effusion of blood, in a civil war it has a direct tendency to produce mischief worse than it removes." (Ibid, p. 9.)

Now, on the whole, this would seem to be a condemnation and denial of the legality of humanitarian intervention. Yet Bernard indicates that he does not mean to apply his remarks to states "which labor under an incurable incapacity to govern." (Ibid, p. 7.) Now since it is in the case of such states that humanitarian intervention is usually applied, this concession robs Bernard's statement of much of its force.

Sir Vernon Harcourt must probably be classed as one of the authorities who adopts the doctrine of moral justification, for in his discussion of intervention, he declares: "Intervention is a question rather of policy than of law. It is above and beyond the domain of law, and when wisely and equitably handled by those who have the power to give effect to it, may be the highest policy of justice and humanity." (Historicus: Letters on Some Questions of International Law, 1863, p. 14.)

Hall (4 ed., § 92, p. 302-5; also p. 307-8) must probably be classed as an authority who denies the right of humanitarian intervention, but he seems to admit that the weight of authority and the practice of states is at variance with his views. He implies (p. 304) that even had his view been adopted, intervention would be legal when "the whole body of civilized states have concurred in authorizing it." That is to say, in order to avoid abuse, he would restrict certain classes of intervention, including that for humanity, to instances when they were undertaken by the collectivity of the more important powers. Any intervention undertaken by a separate power would then, he thinks, have had to be justified "...as measures which being confessedly illegal in themselves, could only be excused in rare and extreme cases in consideration of the unquestionably extraordinary character of the facts causing them, and of the evident purity of the motives and conduct of the intervening state.

"But even this qualification is not left unqualified, for Hall seems to take back what he has said. A few pages further along (§ 95, p. 308), he writes, "There is fair reason, consequently, for hoping that intervention by, or under the sanction of, the body of states on grounds forbidden to single states, may be useful and even beneficent. Still, from the point of view of law, it is always to be remembered that states so intervening are going beyond their legal powers. Their excuse or their justification can only be a moral one." When the master becomes thus involved in contradiction, I submit that there is, to use his own expression, "...fair reason ... " to consider that he has attempted to defend a bad cause.

We catch a reflection of Hall's errors in Oppenheim's discussion of humanitarian intervention (International Law, 2 ed., vol. I, p. 194-5). After admitting "that the Powers have in the past exercised intervention on these grounds [humanity], there is no doubt," he asserts, that it "may well be doubted …" " ... whether there is really a rule of the Law of Nations which admits such interventions." "Yet," he adds, "on the other hand, it cannot be denied that public opinion and the attitude of the powers are in favor of such interventions." In a footnote, he refers to Hall (§§ 91 and 95), "where the merits of the problem are discussed from all sides. "§ 91 is probably an error for § 92.

Lawrence: Principles of International Law, 4 ed., § 66, p. 129, has stated this doctrine so persuasively as almost to overcome its inconsistency. He writes:

"Should the cruelty be so long continued and so revolting that the best instincts of human nature are outraged by it, and should an opportunity arise for bringing it to an end and removing its cause without adding fuel to the flame of the conflict, there is nothing in the law of nations which will brand as a wrongdoer the state that steps forward and undertakes the necessary intervention. Each case must be judged on its own merits. There is a great difference between declaring a national act to be legal, and therefore part of the order under which states have consented to live, and allowing it to be morally blameless as an exception to ordinary rules. A state may, in a great emergency, set aside everyday restraints ; and neither in its case nor in a corresponding case of individual conduct will blame be incurred. But, nevertheless, the ordinary rule is good for ordinary cases, which, after all, make up at least ninety-nine hundredths of life. To say that it is no rule because it may laudably be ignored once or twice in a generation, is to overturn order in an attempt to exalt virtue. An intervention to put a stop to barbarous and abominable cruelty is 'a high act of policy above and beyond the domain of law.' "

¹⁴ Perhaps we should here refer to another attempt to discover a satisfactory basis for recourse to humanitarian intervention: The doctrine of "international nuisance" is built upon the analogy of the common law right to remove a nuisance. In his "Principles of American Diplomacy" (p. 208), Professor John Bassett Moore adopts this view. The intervention of the United States in Cuba, he declares, "… rested upon the ground that there existed in Cuba conditions so injurious to the United States, as a neighboring nation, that they could no longer be endured. Its action was analogous to what is known in private law as the abatement of a nuisance. On this ground the intervention was justified by the late Alphonse Rivier, one of the most eminent publicists in Europe, and on this ground its justification must continue to rest." (John Bassett Moore: The Principles of American Diplomacy, New York, 1918, p. 208.)

But the analysis of the principles governing this case and the study of precedents do not support this view. As far as the United States was concerned, there is no reason to believe that it would not have been possible to endure for several years more the distressing conditions in the neighboring isle, and the advantage of respecting the principle of non-interference in the affairs of a neighbor and the avoidance of a war would have been more than ample to outweigh the inconveniences of the Cuban situation. The diplomatic correspondence relative to Cuba (Foreign Relations, 1896, 1897, 1898) does not bear out the assertion that the intervention of the United States was principally actuated by the motive of self-interest. Had self-interest been really the basis of the action taken, intervention in Cuba would have been merely an instance of interposition in defense of American rights. "International nuisance" is not a happy designation for the reason that self-execution, which is characteristic of the abatement of a nuisance, is in international law the usual method for enforcing rights. We shall again have occasion to refer to this intervention.

Other authorities who recognize humanity as a just ground of intervention would prevent the abuses which in their opinion are likely to result therefrom by limiting it to the collective action of several states. Still others believe that the action of the intervening state can only be justified when it is disinterested. Desirable as it is that humanitarian intervention should be, whenever possible, both disinterested and collective, this cannot be made a condition for the justification of the action taken. In the first place, because the practice of states is not in accord with this theory. States are not generally willing to incur the burdens of intervention, even on the appealing ground of humanity, unless they are also actuated by other and more selfish considerations. In the second place, the adoption of this rule would lead to so many violations as to indicate and in time to establish a contrary rule in harmony with those precedents. Furthermore, collective intervention is often too unwieldy and too tardy to serve as a practical method of procedure. But these are, property speaking, questions of international procedure which do not fall within our discussion of the grounds upon which intervention is justified. We shall, therefore, defer their consideration until, in another volume, we are able to consider the means by which interventions are carried out.

Certain authorities (Bernard: Non-intervention, p. 7; Strauch: Interventions Lehre, p. 14; Gareis: Volkerrecht, § 26, p. 85; F. de Martens: Volkerrecht [Bergbohm's Translation vol. 1, § 76, p. 303; E. D. Dickinson: Equality of States, p. 261-2) consider that humanitarian intervention is to be applied only in the case of semi-civilized states that do not enjoy a full international status. It is true that these states are most frequently subjected to the corrective action of humanitarian intervention, but when by exception a civilized state transgresses the dictates of humanity, it also may be constrained to reform its conduct.

Professor Kebedgy remarks: "In addition to the great difficulty of tracing with any degree of accuracy the line of demarcation between civilized states and those which are not, this restriction would seem to be useless, for why should we tie our hands in advance, if perchance atrocities should come to be committed by the sovereign or the government of a state which would be called civilized? And beside might it not be said that by this fact alone the state in question approximated very closely the condition of barbarous states, and that it would consequently lose all title to respect for its independence?" (Translated from Kebedgy: Intervention, p. 84-5.)

¹⁵ This account is based on that given in Raymond Robin: Des Occupations, p. 281-5, and The Life of the Marquis of Dufferin, vol. I, p. 98-121. In the American Historical Review for January, 1921, p. 326, Dr. F. S. Bliss reviews Scheltema's The Lebanon in Turmoil: Syria and the Powers in 1860. Bliss refers to Shurchill's The Druses and the Maronites. The documents are given in Le Clerq: Traités de la France, vol. 8, pp. 79, 101, 170, 210, 273-8. Cf. also Ashley's Life of Palmerston: Vol. II, p. 212, showing the anxiety of the English to get the French out of Syria.

¹⁶ Sir William White's Life and Correspondence, edited by H. Sutherland Edwards, pp. 156-161, 168, indicates how vigorously Lord Salisbury championed the Jewish cause and how he would not let Sir William present his credentials, already prepared, as British Minister, until Romania complied with the terms of Article 44 of the Treaty of Berlin relative to the treatment of the Jews. This account justifies the Romanian Government and condemns the intervention of Great Britain, which it attributes, without supplying any documentary evidence, to a desire to support France (pp. 18-19, 86-90). From the same work, we quote the following account of the vigorous intervention of the British Government in favor of the Serbian Jews: "Not content with working through its own agents, the Foreign Office once went so far as to instruct Lord Augustus Loftus at Berlin to call the attention of Prince Bismarck to the disabilities weighing upon the Jews in Serbia." (Ibid, p. 87.)

¹⁷ Whether the action of the United States is to be considered an intervention or merely intercession will depend upon the definition given to these words. (See discussion under 11.)

¹⁸ Another phase of this same question arose from the refusal of Russian consuls in the United States to vise the passports of Jews wishing to visit Russia. The Government of the United States took the ground that this refusal of a vise taking place upon American territory was a violation of the principle of equality which must prevail under American jurisdiction. (See Foreign Relations, 1893, p. 536, passim; ibid, 1895, Part II, p. 1065, passim; ibid, 1897, p. 442-3.) No doubt the United States was in a position to enforce compliance with this review, but the practical result could only have been to subject all Americans wishing to enter Russia to vexatious delays at the frontier. (See Foreign Relations, 1895, Part II, p. 1065.)

¹⁹ The use of the word "earnest" has usually been regarded as conveying a warning of a very serious intention to follow up the representations in as far as the exigencies of the political situation should allow.

²⁰ Francis Rey gives an outline of the events, based upon French sources, and rather minimizing the seriousness of the action. See Revue générale de droit international, vol. XI, (1904), p. 88-94; cf. also Rougier, ibid, vol. 17, 1910, p. 476-7 ; also Foreign Relations, 1903, p. 712-715. Hershey (International Law, p. 153, note 17) remarks: "The protests of Secretary Hay and President Roosevelt against the treatment of the Jews in Romania and Russia in 1902 and 1903 were not interventions in the proper sense of this term. One is surprised to see Merignhac (Traité

II: p. 299 and n.) so characterize them." Roosevelt's action in 1903, it is true, was intercessory, but the intention was to influence Russia and Romania by bringing to bear against them the public opinion of the world, and perhaps also, if the occasion should serve, the collective action of other powers. The danger which might result from the irritation which would be aroused was accepted by the United States, and in the case of Russia, stronger measures than words were eventually adopted, for the treaty of 1832 was later abrogated. Action such as this exceeds intercession, and is a diplomatic protest of a very pronounced character.

²¹ Mr. Arthur K. Kuhn, in a pamphlet entitled International Law and the Discriminations Practiced by Russia under the Treaty of 1832," has pointed out that after Russia, in 1862, had adopted the practice of discrimination against subjects of the Jewish faith, Lord Granville first took a vigorous stand, declaring that: "The treaty between this country (Great Britain) and Russia of the 12th January, 1859, applies to all Her Majesty's subjects alike, without distinction of creed." (British State Papers, Vol. 73, p. 833.)

Mr. Kuhn remarks: "For some reason which does not clearly appear, Lord Granville afterwards surrendered his position in the matter and followed the precedent of 1862 and insisted only that British subjects should be placed on the same footing as Russian subjects of the same 'class.' He did not admit the correctness of the principle as a guide for the interpretation of the treaty ; he simply did not desire to overrule his predecessor. Indeed, he clearly enunciated the choice of principle which was involved, for he says: "The treaty is no doubt open to two possible constructions : the one, that it only assures to British subjects of any particular creed the same privileges as are enjoyed by Russian subjects of the same creed ; the other, that the privileges are accorded to all alike without regard to the religious body to which they belong.' (British State Papers, Vol. 73, p. 845.) It has since become apparent that diplomatic considerations induced Great Britain to refrain from insisting on the construction of the treaty which she herself deemed correct.

"In striking contrast to the weak position finally taken by the British Government upon this question, prompted probably by considerations of policy and expediency, rather than of international legal justice, was the attitude taken at the same time by the United States with reference to the same contention.

"The Department of State took a similar stand in regard to the protection of Jews in Switzerland. To quote from the same source: "Prior to the Constitution of Switzerland of 1874, under which religious equality is now guaranteed as effectually as in the United States, subjects of Jewish faith were prohibited from establishing themselves in certain Cantons and were under heavy disabilities in others. Representations were made to Switzerland by several European countries, as well as by the United States, in reply to which these Cantons maintained the right to impose the same disabilities on subjects of foreign nations with which Switzerland had concluded treaties of friendship, commerce and intercourse, as were imposed on natives of the same class in Switzerland. In opposition to this contention, Mr. Seward, our Secretary of State, entered into voluminous correspondence with Mr. Fay, the American representative in Switzerland, instructing him to insist upon the rights of American Jews, notwithstanding the disabilities under which the particular Cantons had placed Jews of Swiss origin."

Further along, Mr. Kuhn remarks: "France, at that time, was particularly energetic in demanding full treaty rights to its citizens of Jewish faith. In 1851, Louis Napoleon, through the French Minister at Berne, sent a note in which he stated that France would expel all Swiss citizens established in France in case the two Cantons (Basle City and County) would insist on carrying out their law prohibiting the establishment of French citizens of the Jewish faith on their territory. (Allgemeine Zeitung des Judenthums, December 15, 1851; January 1, 1852; S. M. Strook, op. cit., pp. 12-13.) The matter was finally referred to a commission of the Senate of the Second Empire and in 1864 a report was made through the chairman of the commission, Ferdinand de Lesseps, in the following terms:

'No distinction may be recognized in the enjoyment of civil and political rights between a French Jew and a French Catholic or Protestant. This equality of rights must also follow a citizen beyond the frontier; and the principles of our Constitution do not authorize the Government to protect its subjects in a different manner according to which faith he professes.' ( See Debats Parlementaries, 1909, p. 3779.)

''As a result of this movement, the French Government finally repudiated the prior treaties which were unsatisfactory in failing to guarantee equal treatment to all French citizens, and a new treaty was obtained from Switzerland in which such a guarantee was expressly made by recognizing 'the right of French subjects, without distinction of faith or worship, to travel, sojourn, and transact all lawful business, as freely as Swiss Christian residents of other Cantons may do.'

( Foreign Relations, 1864, p. 401.)

"The victory which French diplomacy had won over the illiberalism of the Swiss Cantons solved the problem of the United States Government as well."

²² The report of the American Military Mission to Armenia, dated October 16, 1919 (printed in International Conciliation Pamphlet No. 151), gives an account of the treatment of the Armenians, from which the following extracts are taken: "The Russo-Turkish War ended in 1877 by the treaty of San Stefano, under which Russia was to occupy certain regions until actual reforms had taken place in Turkey. This treaty, through British jealousy of Russia, was torn up the following year and the futile treaty of Berlin substituted, asking protection but without guaranties. Meantime there had been the convention of Cyprus, by which that island passed to Great Britain, and the protection of Turkey was promised for the Armenians in return for Great Britain 's agreement to come to the aid of Turkey against Russia. A collective note of the powers in 1880 was ignored by Turkey. Then followed the agreement of 1895, which was never carried out, and the restoration of the constitution of 1876 in 1908. A further agreement in 1914 was abrogated at the entrance of Turkey in the war and the last of the series is a secret treaty of 1916 between Great Britain, France, and Russia, the existence and publication of which rest on Bolshevik authority, by which Armenia was to be divided between Russia and France. Meanwhile there have been organized official massacres of the Armenians ordered every few years since Abdul Hamid ascended the throne. In 1895, 100,000 perished. At Van in 1908, and at Adana and elsewhere in Cilicia in 1909, over 30,000 were murdered. The last and greatest of these tragedies was in 1915. Conservative estimates place the number of Armenians in Asiatic Turkey in 1914 over 1,500,000, though some make it higher. Massacres and deportations were organized in the spring of 1915 under definite system, the soldiers going from town to town. The official reports of the Turkish Government show 1,100,000 as having been deported. Young men were first summoned to the government building in each village and then marched out and killed. The women, the old men and children were, after a few days, deported to what Talaat Pasha called "agricultural colonies," from the high, cool, breezes wept plateau of Armenia to the malarial flats of the Euphrates and the burning sands of Syria and Arabia. The dead from this wholesale attempt on the race are variously estimated from 500,000 to more than a million, the usual figure being about 800,000.

"Driven on foot under a fierce summer sun, robbed of their clothing and such petty articles as they carried, prodded by bayonet if they lagged, starvation, typhus and dysentery left thousands dead by the trail side. The ration was a pound of bread every alternate day, which many did not receive, and later a small daily sprinkling of meal on the palm of the out-stretched hand was the only food. Many perished from thirst or were killed as they attempted to slake thirst at the crossing of running streams. Numbers were murdered by savage Kurds, against whom the Turkish soldiery afforded no protection. Little girls of nine or ten were sold to Kurdish brigands for a few piasters, and women were promiscuously violated. At Sivas an instance was related of a teacher at the Sivas Teachers ' College, a gentle, refined Armenian girl, speaking English, knowing music, attractive by the standards of any land, who was given in enforced marriage to the beg of a neighboring Kurdish village, a filthy ragged ruffian three times her age, with whom she still has to live, and by whom she has borne a child. In the orphanage there maintained under American relief auspices there were 150 "brides," being girls, many of them of tender age, who had been living as wives in Moslem homes and had been rescued. Of the female refugees among some 75,000 repatriated from Syria and Mesopotamia we were informed at Aleppo that forty per cent, are infected with venereal disease from the lives to which they have been forced. The women of this race were free from such diseases before the deportation. Mutilation, violation, torture and death have left their haunting memories in a hundred beautiful Armenian valleys, and the traveler in that region is seldom free from the evidence of this most colossal crime of all the ages. Yet immunity from it all might have been purchased for any Armenian girl or comely woman by abjuring her religion and turning Moslem. Surely no faith has ever been put to harder test or has been cherished at greater cost." (International Conciliation Pamphlets, No. 151, p. 280-1.)

"Testimony is universal that the massacres have always been ordered from Constantinople." (Ibid, p. 285.)

²³ Napoleon III made intervention in favor of nationality, that is for self-determination, a guiding principle of his foreign policy, and to it he owed much of the success of his earlier years. His most serious errors were his departures from this policy, as his interference in Mexico and his attempt to prevent German unity. The Italians have pushed this theory to the utmost extreme.

²⁴ During the French wars of religion, the Catholic publicists argued that the Protestants were not really French (Esmein, La theorie de 1'intervention Internationale chez quelques publicistés frąncais du XVIe siecle, in Nouvelle revue historique de droit frąncais et étranger, 1900, vol. 24: 549-574.) Even today nationality in countries under Turkish rule is confounded in the popular mind with acceptance of Mohammed. Before the war, the Russian peasant had something of this attitude towards all who were not of the orthodox religion, and we often find a survival of this prejudice in certain persons who consider the racial origin or religion of a Jew as determining his

status, rather than the nationality to which he belongs.

^24b But since it was the agitators who were trying to effect a revolution, and since the Neapolitan Government was merely attempting to hold its own, there was no active suppression of national institutions. Cruel treatment, when confined to political prisoners, may possibly be considered some day as a ground for humanitarian intervention, but as yet it has not been so recognized.

In this connection it is interesting to note what Lord Palmerston had written his brother a few months previously: "You may assure the King of Naples, if you see him, that I am anxious to renew with Naples that friendly footing of mutual relations which existed in the time of some of his ancestors, but that such a state of things is impossible unless he changes his system of policy, foreign and domestic. "We do not presume to dictate to him on either of these branches, but we are entitled to say on what conditions our good-will is to be obtained, and the course of events seems to show that the good-will of England is a matter of some importance even to states as far removed from our shores as Naples is." (Ashley : Palmerston, II, p. 78 ; cf. the remarks of Count Walewski, Congress of Paris, Protocol of April 8, 1856. John Stuart Mill was evidently justified in his belief "that Palmerston really hoped by holding the King of Naples up to shame before all Europe to force him to change his conduct somewhat. But he didn't know his man"; comments the philosopher. (Free translation from Mill's Letters, Vol. I, p. 195.)

²⁵ This brief account of the deplorable events of the humanitarian intervention of the powers in favor of the Poles was prepared from the following works and documents: French Yellow Book, 1863, Affaires de Pologne ; Parliamentary Papers, 1863, Vol. 75, Poland [3150] ; British State Papers, Vol. 37, p. 1416-44; Ibid, Vol. 53, p. 766-918; Spencer Walpole's Life of Lord John Russell Vol. II, p. 380-384, Ashley's Life of Lord Palmerston Vol. II, p. 230-33, Annual Summaries reprinted from The Times [London] Vol. I (1893) p. 161-5.; Europaischer Geschichtskalender by H. Schulthess 1863, p. 245-71.

²⁶ In the reports which Viscount Castlereagh sent to Lord Liverpool from Vienna, 1814-1815, he indicates very clearly that his opposition to the Russian design of incorporating the occupied Polish territory into a separate monarchy under the sovereignty of Russia was due to the interest of his country in maintaining the balance of power and in preventing Russia from acquiring a predominance upon the Continent. Viscount Castlereagh evidently found Austria and Prussia little desirous of resisting the Russian designs. In his dispatch of January 11, 1815, to the Earl of Liverpool, Viscount Castlereagh remarks : "I am convinced that the only hope of tranquility now in Poland and especially of preserving to Austria and Prussia their portions of that kingdom, is for the two latter to adopt a Polish system of administration as a defense against the inroads of the Russian policy." (Parliamentary Papers, 1863, vol. 75, [3188], No. 14.)

In the same dispatch Viscount Castlereagh encloses a memorandum which he placed officially on record to give the views of the British Minister on the matter. With slight amendments, Lord Castlereagh addressed this in the form of a circular note to the plenipotentiaries of the Conference. He refers to the desire of his court to see a free and independent state under a distinct dynasty established in Poland. The unwillingness of Austria and Prussia to oppose the Russian plan is alluded to, and the sincere hope expressed that none of the evils which he has feared "...may result from this measure to the tranquility of the North, and to the general equilibrium of Europe, which it has been his painful duty to anticipate."

The memorandum further expresses the hope that "….. the illustrious Monarchs to whom the destinies of the Polish nation are confided, may be induced, before they depart from Vienna, to take an engagement with each other to treat as Poles, under whatever form of political institution they may think fit to govern them, the portions of that nation that may be placed under their respective sovereignties. The knowledge of such a determination will best tend to conciliate the general sentiment to their rule, and to do honor to the several Sovereigns in the eyes of their Polish subjects. This course will consequently afford the surest prospect of their living peaceably and contentedly under their respective Governments. "If such should happily be the result, the object which His Royal Highness the Prince Regent has most at heart, namely, the happiness of that people, will have been secured ; and it will only remain for His Royal Highness most anxiously to hope that none of those dangers to the liberties of Europe may ever be realized which might justly be apprehended from the reunion of a powerful Polish Monarchy with the still more powerful Empire of Russia, if at any time hereafter the military force of both should be directed by an ambitious and war-like Prince." (Parliamentary Papers, 1863, vol. 75, [3188] No. 14.)

²⁷ Article 1. The Duchy of Warsaw, with the exception of the provinces and districts which are otherwise disposed of by the following Articles, is united to the Russian Empire. It shall be irrevocably attached to it by its Constitution, and be possessed by His Majesty the Emperor of all the Russias, his heirs and successors in perpetuity. His Imperial Majesty reserves to himself to give to this State, enjoying a distinct administration, the interior improvement which he shall judge proper. He shall assume with his other titles that of Tsar, King of Poland, agreeably to the form established for the titles attached to his other possessions.

The Poles, who are respective subjects of Russia, Austria, and Prussia, shall obtain a Representation and National Institutions, regulated according to the degree of political consideration, that each of the Governments of which they belong shall judge expedient and proper to grant them. (Article I, of the Final Act of the Treaty of Vienna, Herstlet : Map of Europe by Treaty, Vol. I, p. 216.)

²⁸ In the diplomatic correspondence (see British State Papers, vol. 37, under Russia), Lord Palmerston admitted that because of the delicacy of the internal situation, the British Government wished to avoid giving any offense to Russia. Under these circumstances the lion roared as gently as a sucking dove. In his instructions of March 22, 1831, Lord Palmerston wrote:

"Your Lordship will, of course, be careful not to take any step on this business which could lead to any unfriendly discussions with the Russian Government, with whom His Majesty's Government are, under present circumstances, more than ever desirous of keeping up the closest relations of friendship." (British State Papers, Vol. 37, p. 1418.)

²⁹ Lord John Russell referring to Russia's justification for this act appropriately remarked: "No argument can make it right to turn conscription into proscription." (British State Papers, Vol. 53, p. 780.)

³⁰ The main lines of the Austrian policy are disclosed in the diplomatic correspondence. (See British State Papers, Vol. 53, p. 797, 813, 829-831, 834-841, 859-862, 910-911.)

³¹ In the diplomatic intercourse of great states language such as that employed by Earl Russell the British Secretary of State for Foreign Affairs can have but one meaning: It requires that the power to whom it is addressed yield to the menace politely conveyed but hardly veiled. Otherwise war must result unless the protesting or threatening power prefers an ignominious retreat. Since the traditions of Great Britain gave no indication that she would choose the path of humiliation, the real significance of Earl Russell's words was clear to all. (See notes of March 2, April 10, and June 17 in the British State Papers, Vol. 53, p. 805-7, 863-6, 897-901.)

Amply sufficient as was the menacing language of the British notes to indicate presumably the intention of that government to employ force if necessary, this impression was greatly strengthened by what Earl Russell said to the Baron Brunnow, the Russian Ambassador, in the course of an informal conversation relative to the note of April 10th about to be dispatched. "Her Majesty's government," declared Earl Russell, "had no intentions that were otherwise than pacific. Still less any concert with other powers for any but pacific purposes.

"But the state of things might change. The present overture of Her Majesty's government might be rejected, as the representation of the 2nd March had been rejected by the Imperial Government. The insurrections in Poland might continue and might assume larger proportions ; the atrocities on both sides might be aggravated and extended to a wider range of country. If, in such a state of affairs, the Emperor of Russia were to take no steps of a conciliatory nature, dangers and complications might arise not at present in contemplation." (British State Papers, Vol. 53, p. 866-7.)

³² The British Government wished to organize a collective action which should exercise the desired constraint upon Russia, but apparently did not wish to be committed to a joint intervention with France alone. Austria would not consent to joint action, but did agree to a concurrent and simultaneous presentation of notes which each of the three powers had previously communicated to the others. (For the diplomatic history of this interesting procedure, see British State Papers, Vol. 53, p. 809, 811, 812-13, 813-14, 815, 830, 837, 840, 844, 849, 850, 859, 861-2, 881-2, 890, especially 861-2.)

³³ Rarely in the annals of diplomacy has a more incongruous crew united for a common undertaking. France had just been trying to build up a political understanding with Russia and wished in consequence to deflect her intervention toward Prussia on the ground of the latter 's interference in the matter. (See British State Papers, Vol. 53, p. 809, 812, 826.) Great Britain was desirous of preventing the Russification of the Polish provinces, because she was apprehensive of an increase of Russian power and because she sympathized with the Poles. But the British Government distrusted the French designs on the Rhine and were unwilling to engage with France alone in any joint action against either Prussia or Russia. (British State Papers, vol. 53, p. 837, 867 ; cf. Memoirs of Ernest, Duke of Saxe-Coburg-Gotha, Vol. IV, p. 116, ibid, p. 127; Count Vitzthum's Reminiscences, Vol. II, p. 234, 240, 260.)

Another cause of dissension was that Great Britain wished the concurrent action of the powers to be based upon Russia's violation of Article I of the Final Act of Vienna (British State Papers, Vol. 53, p. 863-4, cf. 806, 834, 836, 866). The French Emperor whose very accession to the throne might be considered a violation of the Treaty of Vienna, even although he yielded somewhat to British insistence and referred to the action taken at Vienna (British State Papers, Vol. 53, p. 827-8), could hardly be desirous of defending treaties which had been dictated to France (British State Papers, Vol. 53, p. 875).

Strangest of all was Austria's concurrence in view of her recent (1846) annexation of Cracow in violation of Articles VI and IX of the Final Act (see R. Robin; Occupations, p. 238-242), and in view of Russia's interference in 1849 to assist her in suppressing the Hungarian revolution. Could Austria, one of the original partitioning powers of Poland, give much support to an action in favor of the Poles?

These various causes of dissension between the three intervening powers deprived their concurrent representations of some of the force which they would otherwise have had.

³⁴ Italy, Spain, Portugal, and Sweden responded to the invitation of France and Great Britain (British State Papers, Vol. 53, p. 812, 862, 890) to join in making representations in behalf of the oppressed Poles and these states cooperated to the extent that they believed expedient. (British State Papers, vol. 53, p. 844-5, 850, 851, 874-5, 880, 886.)

The United States had declined to intervene on the ground of its policy of "non-intervention in European affairs" (Diplomatic Correspondence, 1863, Part I, p. 667).

³⁵ The Swedish Government in reply to the invitation or polite suggestion made an appeal in behalf of the Poles, but as Count Manderstrom explained to the British representative at Stockholm "he had thought it better to abstain from entering into any particulars regarding Polish reform. Since what might be advisable coming from England might be the contrary coming from Sweden." Count Manderstrom further said "that, in fact, though he did not think Her Majesty's

Government wrong to enter upon such details, he thought the Swedish Government right to abstain from them." (British State Papers, Vol. 53, p. 886.)

The representations of the Italian Government were still more gentle, if we may rely upon Prince Gortchakoff's Statement. (British State Papers, Vol. 53, 880; but cf. ibid, p. 875.) The first representations which the French Government made at St. Petersburg (Drouyn de Lhuys to the Due de Montebello, Feb. 18, 1863, British State Papers, Vol. 53, p. 827-8, cf. p. 809, 787) cannot be considered as anything more than intercession, since there was not at the time it was presented any indication of an intention to insist. Perhaps had Bismarck not interfered the French Government would not have consented to take further action against Russia notwithstanding French sympathy for the Poles.

Similarly in 1831-2, the British Government did no more than intercede for the Poles and closed the correspondence with a mild protest couched in the most friendly language. (See British State Papers, Vol. 37, p. 1418, 1428-9, 1436, 1439-1444.)

³⁶ Lord Napier reporting to Lord Russell the promulgation of an Imperial manifesto promising reforms and pardons to certain of the insurrectionists concluded: "How far it has been prompted by the expectation of foreign intervention I am not able to affirm with confidence; I am inclined to think it may have been accelerated by such apprehensions, but it is also plainly consistent with policy, as well as with the benevolent disposition of the sovereign." (British State Papers, Vol. 53, p. 883.)

³⁷ Earl Russell might perhaps have achieved a diplomatic success through the mere presentation of emphatic notes if he had had the loyal support of his subordinate, Lord Napier, then British Ambassador at St. Petersburg. Lord Napier seems to have been more eager to preserve peace with Russia than he was to cherish his country's honor. At the moment when Russia was most apprehensive he assured his Russian friends that Great Britain would not make war for the Polish

cause. (See The M. P. for Russia, Reminiscences and Correspondence of Madame Olga Novikoff, edited by W. T. Stead, 1909, p. 64 passim.) If he acted upon his own responsibility in snowing Prince Gortchakoff Earl Russell's note before he presented it officially he helped the Russian Vice-Chancellor to humiliate his chief (see Lord Redesdale: Memories, Vol. I, p. 224-5, quoted below). One authority states that Napier explained to Gortchakoff that the note was merely a humane expression and that it would entail no further consequences. (St. von Kozmian, Das Jahr 1863, Authorized German Edition by S. R. Landau, p. 297.)

In his eagerness to assure Russia that his government did not mean what Earl Russell's language fairly implied Lord Napier may have encouraged Prince Gortchakoff to play at the same game of bluster as the British Secretary. In any event he was fittingly alarmed at the possible consequences of the Russian reply and begged from Prince Gortchakoff some conciliatory assurances which should make it possible for his government to swallow the affront. (British State Papers, Vol. 53, p. 910.)

³⁸ Lord Redesdale has left us an interesting account of the melancholy, though ludicrous, end of this fiasco: "Lord Russell climbed down not handsomely. In a dispatch to Lord Napier of the llth of August he said : 'If Russia does not perform all that depends upon her to further the moderate and conciliatory views of the three Powers,' Great Britain, Austria and France, 'if she does not enter upon the path which is opened to her by friendly counsels, she makes herself responsible for the serious consequences which the prolongation of the troubles of Poland may produce.'

"And that was the lame and impotent conclusion of a game of brag and insolent bluster which had been carried on for many months. The fizzling out of a damp squib!

"But there is one story which Mr. Hennessy, Conservative member for King's County, told in the House of Commons, and was never contradicted, which is too good and too characteristic to be omitted I take it verbatim from Lord Salisbury's essay on Foreign Politics, p. 202.

" 'When Prince Gortchakoff 's last defiance had arrived, and the Government had made up their minds to practice the better part of valor, Lord Eussell made a speech of Blairgowrie, and being somewhat encouraged and cheered by the various circumstances of consolation which are administered by an entertainment of that kind, he recovered after dinner somewhat of his wonted courage, and under the influence of the valor so acquired he proclaimed that, in his opinion, Russia had sacrificed her treaty right to Poland. Having made the statement thus publicly, he felt that he could not do less than insert it into the dispatch to Prince Gortchakoff, with whom it was proposed to terminate the inglorious correspondence. He flattered himself, indeed, that so hostile an announcement, while not leading actually to a war, might enable him to ride off with something like a flourish, which his friends might construe into a triumph.

" 'And so the dispatch was sent off, formally bringing the correspondence to a close, and concluding with the grandiose announcement that, in the opinion of the British Government, Russia had forfeited the title to Poland which she had acquired by the Treaty of Vienna. But even this modest attempt to escape from disgrace was not destined to succeed. When the dispatch reached St. Petersburg it was shown to Prince Gortchakoff before being formally presented. 'You had better not present this concluding sentence to me,' is reported to have been the Prince's brief but significant observation. The hint was taken, the dispatch was sent back to England and submitted anew to the Foreign Secretary. Doubtless with disgust, but bowing to his inexorable destiny, he executed this new act of self-abasement. The offending sentence was erased by its author with the resolution of a Christian martyr. In this form it was sent back to Russia; and it still bears, as published to the world, in the bald mutilation of the paragraph with which it concludes and in the confusion of its dates, the marks of its enforced and reluctant revision.

" 'The confusion of the dates is very significant. The dispatch was originally dated in September and refers to the dispatch of August 11th, as of the 11th ultimo. As accepted by the Prince it was dated in October, but still refers to the August dispatch as of the 11th ultimo.

" 'The humiliation of England was complete. We had threatened and we had not performed. We had encouraged the Poles to believe that they might count upon our protection, and when we found that something more than brave words would be needed, we deserted them. That was the view taken abroad of Lord Russell 's policy. It was treated with derision and contempt. In Russia there was at that time a very strong feeling of friendliness towards the English. But it was a social friendship, not a political appreciation, and I believe that was largely, perhaps one might say entirely, due to the great personal charm and popularity of Lord and Lady Napier. As a power to be reckoned with we had ceased to exist.' " (Lord Redesdale: Memories, Vol. I, p. 224-5.)

³⁹ See Reminiscences of Count Vitzthum, edited by Henry Reeve, vol. II, p. 250 ; Correspondence of Sir William White, edited by H. Southerland Edwards, p. 54-5.

⁴⁰ It would have been well for Lord John Russell had he taken pattern from Lord Palmerston's conduct of the Polish negotiations of 1831-33. July 3, 1832, in his instructions to Lord Durham, then on a mission to St. Petersburg, Palmerston warned him that the remonstrances of Great Britain and France, lacking as they did the support of Austria and Prussia, "...could not be effectual unless they had been supported by a threat of war a threat to the execution of which so many obstacles were opposed both by the general state of Europe and by the negotiations in which, in concert with Russia, Great Britain has been, and still, is, engaged."

"In adverting, therefore, to the affairs of Poland," wrote Lord Palmerston in the same dispatch, "great delicacy and caution will be required. It would be inconsistent with the power and dignity of the British Empire to insist too strongly upon points which, from the considerations stated above, it might be inexpedient, if not impossible, to enforce by arms."

(British State Papers, vol. 37, 1848-49, cf. p. 1439-1440.)

⁴¹ A few extracts from the Diplomatic Correspondence will show how conscious the governments were of this strong public sentiment in favor of the Poles.

The French note of February 18 contains the following passage: "But the Polish question more than any other is privileged to arouse in France the keenest sympathy of all parties. In this respect they are unanimous; the language employed by the most zealous defenders of Monarchy and religious doctrines differs only but slightly from that of the most advanced democratic organs. What can we answer to statements which are based upon public law [international law] and which do no more than appeal to the most incontrovertible principles. Not only are we powerless to reply to such articles, but, deriving as we do our strength from public opinion, we are obliged to take into account opinions which this country has entertained for so many years." (British State Papers, Vol. 53, p. 827.)

The subsequent note, presented April 17th, declares: "The insurrection of which the Kingdom of Poland is at present the theatre has awaked in Europe a lively anxiety, in the midst of a repose which no near event seemed likely to disturb. The lamentable effusion of blood of which this contest is the cause, and the painful incidents which mark it, are exciting, at the same time, an emotion as general as it is profound." (Ibid, p. 862, Translation in Parliamentary Papers, 1863, Vol. 75, Poland, [3150] No. 136.)

The British note dated April 10, but presented at the same time as the French note, alludes incidentally to the pressure of public opinion: "The general sympathy which is felt for the Polish Nation might of itself justify Her Majesty's Government in making, in favor of the Polish race, an appeal to the generous and benevolent feelings of His Imperial Majesty." (Ibid, p. 863.)

Further along in the same note: "The disturbances which are perpetually breaking out among the Polish subjects of His Imperial Majesty necessarily produce a serious agitation of opinion in other countries of Europe, tending to excite much anxiety in the minds of their Governments, and which might, under possible circumstances, produce complications of the most serious nature." (Ibid, p. 865, cf. similar expressions in the Austrian note prepared for concurrent presentation, ibid, p. 861.)

In his note of August 11, Lord John Russell in reply to the complaints of Prince Gortchakoff , said: "It is true, however, that lively sympathy has been excited in Europe in favor of the Poles. In every considerable State where there exists a national representation, in England, in France, in Austria, in Prussia, in Italy, in Spain, in Portugal, in Sweden, in Denmark, that sympathy has been manifested. Wherever there is a national administration, the administration has shared, though with prudence and reserve in expression, the feelings of the legislature and the nation." (Ibid, p. 913.)

Even in Prussia, where the government had adopted Bismarck's policy of cooperation with Russia to crush out the Polish insurrection, there was a strong movement in favor of the Poles. In the Prussian House of Representatives, Herr Waldeck said, in the course of his scathing denunciation of Bismarck 's policy: "There was a policy which Prussia might have followed; she might in a friendly manner have offered her advice to Russia, and warned her of the dangers she incurred by abandoning the road of legality and ordering the barbarous conscription which has called forth the present rebellion." (British State Papers, Vol. 53, p. 794, f. ibid, p. 789.)

⁴² See below 16. In the opinion generally held by statesmen of that period national security or self-preservation was a sufficient and the strongest justification for action which otherwise would have been reprehensible interference. We do not wish to appear to approve of this argument, but merely to point out that it was not in point.

The peculiar situation of Austria permitted her alone to derive support from this argument of national security, and she did in fact use it with much force. (See British State Papers, vol. 58, p. 860-1.) Earl Russel referring to the Austrian justification on this ground remarks with seeming acquiescence: "The freedom of France and England from apprehensions of this kind is dwelt upon with marked distinctness." (Ibid, p. 813.)

⁴³ See British State Papers, Vol. 53, p. 833, 880-881, 895. 897, 903, 907. Cf. Earl Russell's attempted rejoinder, ibid, p. 913. Phillimore discusses the obligation of States to police their territory and to prevent its use as a base of hostile preparations. See Phillimore 's Commentaries, 1st ed. 1854, Vol. I, 217, p. 228-230. This question is considered below under § 15. An accusation of a similar nature was made by Russia in 1832, namely that the Polish insurrection was only sustained by the hope of foreign intervention. (Cf. Nesselrode to Lieven Jan. 3, 1832. British State Papers, Vol. 37, p. 1434.)

⁴⁴ If it should first be shown that intervention was justifiable upon some other ground, such as the violation of treaty rights or humanity, the failure of the intervening powers to police their territory could then be defended as in the nature of a passive or constructive intervention, or else it might have been regarded as retaliatory. As we shall later show that humanity was the real justification, we may rightly consider that this failure of the government to prevent its territory from serving as a base from which to carry on operations of war-like resistance to the Russian Government was a justifiable instance of negative or passive humanitarian intervention. We might say humanitarian intervention by indirection, or constructive humanitarian intervention. There was perhaps some subconscious feeling of this justification for the failure to police the territory when in his note of August 11, 1863, Earl Russell, in reply to the complaints of Prince Gortchakoff , remarked: "Unless the general feeling in Poland had been estranged from Russia, the moral and material assistance afforded from abroad would have availed the insurgents little." (Ibid, p. 913.)

⁴⁵ In his representations of March 2, 1863, Earl Russell added to the treaty as a ground of justification the interest of European peace. He wrote: "Great Britain, therefore, as a party to the treaty of 1815, and as a power deeply interested in the tranquility of Europe, deems itself entitled to express its opinion upon the events now taking place." (British State Papers, Vol. 53, 805-6.)

The British note of April 10 contained the following: "The condition of things which has now for a long course of time existed in Poland is a source of danger not to Russia alone, but to the general peace of Europe." (Ibid, p. 865.)

The French concurrent note presented at the same date contained similar statements as to the regrettable complications likely to result from prolonged disturbances in Poland. (Ibid, p. 862.)

The Austrian note may perhaps have been the source of this attempt to find some common ground of action for Earl Russell in his instructions of April 4 to the British Ambassador at Paris wrote: "But the latter part [of the communicated Austrian note] appears to Her Majesty's Government very important. It shadows forth ulterior consequences which, according to the present views of the Russian Government, are too likely to be realized. These consequences, it is declared, may be calamitous to all Europe, and the conflicts which may then be revived may give rise, it is said, to complications to be regretted." (British State Papers, Vol. 53, p. 850. The Austrian note is given ibid, p. 861 ; cf. also p. 859.)

⁴⁶ For a fuller discussion of this question, see below § 19. It is nevertheless true that a reasonable restriction of the rights of a sovereign state may be incorporated in a treaty and enforced by other states when such restriction is recognized as necessary for the security of all the states (see § 9 and 17). But it is evident from the diplomatic correspondence at the time of the negotiation of the treaty that the stipulation in question was not adopted as a result of any general understanding that it was for the common interest. It was adopted for two other reasons: firstly and mainly, because Great Britain feared Russia's preponderance in the east of Europe, (see British State Papers, Vol. 37, p. 1417-1420), and secondly, in order to assure to the Poles reasonable recognition of their national aspirations. How secondary this latter consideration was to Great Britain, who was mainly instrumental in securing the insertion of the article, is shown by her efforts to secure a complete partition of the Polish provinces rather than to permit the organization of a quasi-independent Poland under the sovereignty of Russia. (See Parliamentary Papers, 1863, Vol. 75 [3188] cited above.)

It would thus appear that the main reason for the insertion of the provisions in regard to Poland was to serve the political object that England and France had in view, namely to prevent Russia from acquiring full military control of Poland. (See also British State Papers, Vol. 37, p. 1417-1418.) Even though Russia signed the treaty, it could not give other powers a right of interference on political grounds.

We shall revert again to the value of the article as a basis of humanitarian intervention. In regard to the value of the treaty as a basis of action it will be of interest to quote certain passages from the diplomatic correspondence: "In an ordinary case of civil war between a sovereign and his subject, foreign states can have no grounds for interference, even by advice or remonstrance; but there are circumstances peculiar to the Kingdom of Poland which make it in this respect an exception to the general rule." (Palmerston to Lord Heytesbury, March 22, 1831; British State Papers, Vol. 37, p. 1416.)

"His Majesty's Government is fully sensible of the delicacy of the questions at issue, involving, as they do, the relations between a sovereign and his subjects; matters upon which, under ordinary circumstances, and when those relations are not interwoven with the stipulations of treaties, the most well-ant and friendliest interposition must at best be of doubtful expediency." (Palmerston to Lord Heytesbury, March 12, 832, British State Papers, Vol. 37, p. 1436.) But Lord Heytesbury seems to have had some understanding of the limits of interference based upon a treaty, for in his report of October 1, 1831, he writes: "Indeed, it might be impossible for foreign powers to guarantee a particular and unchangeable form of government to

any country." (British State Papers, Vol. 37, p. 1423.) And further along in the same report Lord Heytesbury indicates of how little value he considered the Article as a basis for protest: "I have," writes the British Ambassador, "been constantly assured in reply, that the stipulations of the Treaty of Vienna will be strictly attended to, but this assurance amounts to little or nothing, for the stipulations themselves amount to little or nothing." ( Ibid, p. 1424. )

⁴⁷ Earl Russell seems to have been so ignorant of the fundamental principles of international law that he was not able even to refute the preposterous argument advanced by Russia that the treaty provision in favor of the Poles had been abrogated by the right of conquest after the suppression of the insurrection of 1832. (British State Papers, Vol. 53, p. 864; cf. ibid, vol. 37, p. 1417, 1428, 1432, 1438.) Professor Rossi in his review of Wheaton's work criticizes that writer for speaking of the "reconquest" of Poland. "One does not," says Rossi, "conquer oneself" (Archives de droit et de legislation, Vol. I, p. 356; Stapleton: Intervention, p. 136-7, in a somewhat ambiguous statement, falls into the same error as Wheaton and Russell.)

⁴⁸ Even in 1832 when Great Britain and France had no intention of doing more than intercede by friendly council in favor of the Poles, the existence of Article I was of great value as a formulation of Russia's obligation towards the Kingdom of Poland. This appears in Lord Heytesbury 's report to Lord Palmerston of January 2, 1832, in which he wrote:

"It must not, however, be concluded that our efforts in favor of the Poles have been entirely thrown away. It will be sufficient to cast our eyes towards the Russo-Polish provinces not included in the Kingdom of Poland, and, consequently, out of the reach of foreign intervention, to be convinced of the contrary. In the Kingdom of Poland, setting out of the question those accused of assassination and the officers of the three corps of Kaminski, Rybinski, and Ramorino, who form a class apart, and who are now gradually returning to their homes, upon consenting to renew their oaths of allegiance, there are not above 20 individuals excluded from the amnesty, or who will suffer for their political conduct. But in the Russo-Polish provinces incorporated with the Empire, confiscation of property, exile, or deportation to Siberia are the general lot. Not an individual has been suffered to escape who took any active part in the Revolution. This different measure of punishment, though it speaks little, perhaps, in favor of the clemency of this Government, shows clearly the effect of foreign intervention. We may not have gained much; but we, at least, have the consolation of reflecting that the course pursued would have been infinitely more severe had we not taken the line we did." (British State Papers, Vol. 37, p. 1430.)

⁴⁹ Earl Russell in his note of March 2, to the Russian Government expressed similar views: ''However much Her Majesty's Government might lament the existence of such a miserable state of things in a foreign country, they would not, perhaps, deem it expedient to give formal expression to their sentiments, were it not that there are peculiarities in the present state of things in Poland which take them out of the usual and ordinary condition of such affairs." (Ibid, p. 806.) The peculiarities referred to were, of course, the provisions of the Treaty of Vienna.

Lord Russell, in his note of April 10 to Russia, repudiates completely any right of intervention upon grounds of humanity alone when he admits that in the absence of treaty stipulations the constitutional rights of the Poles might have been declared forfeited after the suppression of their revolt. (British State Papers, Vol. 53, p. 864.)

In a preceding portion of this same note Earl Russell may, perhaps, be considered by implication to deny humanity as a basis for intervention when he indicates that the sympathy of public opinion would have justified an "appeal" that is, friendly intercession "to the generous and benevolent feelings of His Imperial Majesty." Similar disclaimers of any right of intervention on the ground of humanity made in 1832 will be found in an extract already quoted. (See Palmerston to Lord Heytesbury March 12, 1832, British State Papers, Vol. 37, p. 1436.)

In his note of February 21, to the French Ambassador at London, M. Drouyn de Lhuys remarks of the disturbances prior to Prussia's interference by the signing of the Avensleben Agreement: "The lamentable incidents of the resistance of the population to a measure of internal administration could as yet only be regarded from a humanitarian viewpoint." The "only" is here significant. (British State Papers, Vol. 53, p. 809.)

⁵⁰ PROLONGED DISTURBANCES: In addition to protests against the oppression of the Poles, the intervening states justified their action upon the ground of the recurrence and prolongation of disturbances in Poland:

The French note of April contained the following: "The characteristic of the agitation in Poland, M. le Due, that which makes their exceptional gravity, is that they are not

the result of a passing crisis. Effects which are reproduced in almost every generation cannot be attributed to purely accidental causes. These convulsions, which have become periodical, are the symptom of an inveterate evil ; they bear witness to the impotence of the combinations which have been hitherto devised in order to reconcile the kingdom of Poland with the situation which has been created for it." (British State Papers, Vol. 53, p. 862 ; Translation in Parliamentary Papers, Vol. 75, Poland [3150] No. 136.)

The British note presented at the same time declared: "The disturbances which are perpetually breaking out among the Polish subjects of His Imperial Majesty necessarily produce a serious agitation of opinion in other countries of Europe, tending to excite much anxiety in the minds of their Governments, and which might, under possible circumstances, produce complications of the most serious nature." (Ibid, p. 865.)

In the previous British note of March 2nd, we find: "Since 1832, however, a state of uneasiness and discontent has been succeeded from time to time by violent commotion and a useless effusion of blood." (Ibid, p. 806.)

ANARCHY : Still another ground of justification was the anarchy in Poland and the violations of the rules of civilized warfare.

This ground was taken by Earl Russell in his conversation with Baron Brunnow, the Russian Ambassador. "In a former conversation," writes Earl Russell in his dispatch of April 10, "I had said to him that I could not be surprised that men driven to despair should commit wild deeds of revenge, or that the ferocious disciples of Mazzini should be guilty of assassinations; but that the acts of atrocity committed by the disciplined army of Russia excited, on the part of Her Majesty's Government, surprise as well as horror. Baron Brunnow had replied that dreadful crimes of savage cruelty had been perpetrated by the insurgents, and had given rise to acts of retaliation. He informed me yesterday that General Berg would take command of the Russian army in Poland. He said that General Berg was an able commander, and was likely by his military arrangements to put an end to the insurrection. I replied that if General Berg was, as I believed, an officer of high repute, I hoped he would restore discipline in the Russian army in Poland, and punish those acts of insubordination and barbarous violence, which had hitherto been unrestrained. Baron Brunnow denied the truth of the stories in circulation upon this subject. (British State Papers, vol. 53, p. 866.)

We quote another passage from the same dispatch in which Earl Russell relates how he qualified the assurances which he had just given Baron Brunnow as to the pacific nature of the communication about to be made to Russia:

"But the state of things might change. The present overture of Her Majesty's Government might be rejected as the representations of the 2nd of March had been rejected by the Imperial Government. The insurrection in Poland might continue and might assume larger proportions; the atrocities on both sides might be aggravated and extended to a wider range of country. If in such a state of affairs the Emperor of Russia were to take no steps of a conciliatory nature, dangers and complications might arise not at present in contemplation." (British State Papers, Vol. 53, p. 866-7.)

The Spanish Government in their appeal to Russia "to pursue a conciliatory and merciful course" cited their own experience of civil wars, and remarked "that popular discontents cannot be suppressed by severity alone." (British State Papers, Vol. 53, p. 874.)

From Vienna Lord Bloomfield reported: "Much has been said of the want of discipline amongst the Russian troops in Poland, and to the almost total disregard of the authority of the officers are attributed most of the frightful massacres that are each day reported in the newspapers." (British State Papers, Vol. 53, p. 841.) In the same report Lord Bloomfield enclosed a translation from the Fremden Blatt giving details of these atrocities. (Ibid, p. 840-842.)

Lord Palmerston's instructions of November 23, 1831, to Lord Heytesbury contained the following criticism of methods employed by Russia in suppressing the insurrection of 1831-32: ''From the submission of the Poles to the arms of His Imperial Majesty, Europe looks for the reestablishment of law and justice, and not for acts of retaliation and vengeance; since whatever excuse such acts may find in the troubles of an intestine war, they could not be palliated if resorted to by a power which has subdued all opposition, and which cannot plead for its measures the necessity of any pressing emergency." (British State Papers, Vol. 37, p. 1428.) Secretary Seward wrote to Mr. Motley, July 14, 1863: "The European states suffer long and forbear much with a nation that falls under the affliction of civil war, if it be only near home. They are very intolerant of a nation, on this continent, that suffers its domestic wrangles to break the peace of the world." (Diplomatic Correspondence, 1863, Part II, p. 926.)

HUMANITY : In certain passages of the diplomatic correspondence we find allusions to humanity as the justification for the representations without any specifications as to the particular action considered to violate the principles of humanity. (See British State Papers, Vol. 37, p. 1426; Ibid, Vol. 53, p. 813.)

⁵¹ In his note of August 11, Earl Russell wrote: "The Empress Catherine in 1772 promised to the Poles the maintenance of their religion. The Emperor Alexander I in 1815 promised to the Poles national representation and national administration.

"These promises have not been fulfilled. During many years the religion of the Poles was attacked, and to the present hour they are not in possession of the political rights assured to them by the Treaty of 1815 and the constitution of the same year." (British State Papers, Vol. 53, p. 913.)

Discussing Russia's obligation under Article I with especial reference to the terms "representation" and "national institutions," Prince Gortchakoff in a conversation reported by Lord Napier remarked "….. that under this Article the Russian Government remained the absolute arbiter of the form in which the representation and national institutions of Poland should be framed. The Emperor Alexander I, using his indisputable prerogative in a liberal and even in an enthusiastic sense, had, some time after the conclusion of the Treaty referred to, spontaneously granted to the Kingdom of Poland a Representative Constitution which had not proved consistent with the peace and welfare either of Poland or Russia. That Constitution had never been imparted to foreign Powers as involving the execution of international engagements. We all know under what circumstances it had perished. What the Emperor Alexander did in the plenitude of his power, his successor in the exercise of the same power could revoke. The present Emperor, ever faithful to the principles of government which he applied in Russia, had applied these principles in Poland too, and perhaps in a larger measure than had been granted in any other portion of his dominions. The political Constitution proclaimed in Poland in the year 1861 embodied a complete autonomy, national institutions with a modified representation adapted to the form of political existence in force under the Imperial Government. Poland was now ruled by institutions purely Polish. There was a directing Minister, a Pole, entertaining national sentiments of the most decided character; a Council of Administration composed of Poles; a Council of State containing Poles taken from the several ecclesiastical and civil orders of the community, and embodying some representative elements, in which general laws for the welfare of the Kingdom were elaborated; there were provincial, district, and municipal councils in descending order, all purely elective, charged with the local and material interests of the country. This national representation was not cast in the same mould as that which was designed by the Emperor Alexander, or that which existed in England, but it formed, nevertheless, a system of national and representative institutions adapted to the condition of Poland and its relations with Russia. Her Majesty's Government, composed of practical statesmen, the representatives of a practical nation, would not surely contend that there was only one valid and useful form of political institutions equally applicable to all countries, that, namely, which existed in England, and which was successful there. Nor would Her Majesty's Government, which professed non-intervention as the rule of their foreign policy, deviate from that principle now by interfering in the domestic concerns of another State. The Kingdom of Poland enjoyed an absolute administrative independence. Even the Department for Polish Affairs in the Russian capital had been abolished. The only institution common to the two countries now was the army. The new institutions granted to Poland, alluded to above, opened a wide field of activity and material prosperity to the country. But this was not all. The Imperial Government, in restoring the educational establishments of the Kingdom, had offered to the people the resources of intellectual culture and satisfaction. If to these institutions we added the guarantee by which they were all preserved, the personal character of the Emperor, who cherished an equal solicitude for the good of all his subjects, we should have a sufficient security for the future welfare of Poland, though the scheme might exclude the peculiar form of Representative Government applied in Great Britain, and perhaps exclusively appropriate to its condition." (British State Papers, vol. 53, p. 834-5.)

⁵² This statement of Earl Russell does not seem quite in harmony with his frank admission to the Austrian Ambassador, Count Apponyi, that it might be necessary ultimately to restore the independence of Poland (British State Papers, Vol. 53, p. 831; cf. similar statement by Gortchakoff, ibid, p. 833). In the course of this same conversation as reported by Earl Russell himself he also outlined his ideas as to what was necessary to pacify Poland as follows: "Russia could only govern Poland in one of two ways. The one was that of the Emperor Nicholas, that of keeping her submissive and degraded: extinguishing her language; compelling her by force to change her religion. This mode was repugnant to all received notions of justice and clemency.

"The other was the mode of Alexander I : protecting her from the hatred and revenge of the Russians, by giving her the guarantee of popular institutions and a local administration entirely separate from that of Russia.

"Nothing less would suffice. The late conscription was a proof of it. The law of recruitment of 1859 was a fair and just law; but it was wanting in some formality, and when it suited the despotism of Russia to substitute an arbitrary, unjust, and cruel measure for the equal law which had been proclaimed, there was not a moment's hesitation in doing so. I conceived there was no middle line between a system of oppression and a system of free and just government." (British State Papers, Vol. 53, p. 831, Cf. ibid, p. 865, 874.)

⁵³ "And, thirdly, there is the argument based upon the claims of humanity. So long as the rules of civilized warfare were observed, so long, that is, as the non-combatant population was not interfered with, there was little choice between the two parties. Occasional atrocities might be committed by either side, but neither side was so conspicuous a sinner as to warrant outside interference. The Cubans at least held their own. But there came a change of policy. The non-combatant country population was forced to settle within the range of the guns of the Spanish intrenched in the towns, and there, destitute of food, or of the means of growing or getting food, it starved." (T. S. Woolsey, America's Foreign Policy, p. 63-4; see also Moore's Digest, VII : 212 f.)

The correspondence relative to the treatment of the Cuban insurrectionists during the long struggle of 1868-1878 touches upon the same question of humanitarian intervention. Secretary Fish even went so far as to take the initial steps looking toward a collective action by the powers. See Secretary Fish's dispatch No. 266 to Mr. Gushing, 1875, printed by Chadwick (Diplomatic Relations with Spain, p. 375). Captain Mahan says of the action of the United States in 1898 : "...when we ourselves last year, rejected intermediation, loosed the bonds from Cuba, and lifted the yoke from the neck of the oppressed." (Some Neglected Aspects of War, p. 44; cf. ibid, p. 74-5.)

In a campaign speech (August 28, 1920), President then Senator Harding, quoting from his speech in the Senate (April 4, 1917), said of American intervention in Cuba : "We unsheathed the sword some eighteen years ago for the first time in the history of the world in the name of humanity, and we gave proof to the world at that time of an unselfish nation." (Reported in the N. Y. Sun, August 29, 1920.) Mr. Harding was probably referring to the extraordinary disinterestedness of our action when he called this humanitarian intervention the first instance in the history of the world, for certainly he must have been aware of the many other instances of humanitarian intervention which have occurred.

This intervention has sometimes been classed erroneously I believe as an instance of self-help for the purpose of removing an international nuisance. We have already entered into a discussion of this theory, see above § 8.

⁵⁴ "... it is probable that endless negotiation would never have brought Sagasta and the Queen Regent to an admission of Cuban independence." (T. S. Woolsey: America's Foreign Policy, p. 83.)

⁵⁵ "These are the three justifying reasons, then, for intervention for the attempt by national action, to heal this open sore : the burden of neutrality ; the dictates of our commercial interests; the call of humanity. Any one of these is strong; together they are very nearly convincing." (T. S. Woolsey, America's Foreign Policy, p. 64-5.)

The Joint Resolution of Congress approved April 20, 1898, justified the American intervention in the following words:

"Whereas the abhorrent conditions which have existed for more than three years in the island of Cuba, so near our own borders, have shocked the moral sense of the people of the United States, have been a disgrace to civilization, culminating as they have in the destruction of a United States battleship, with two hundred and sixty-six of its officers and crew, while on a friendly visit in the harbor of Havana, and cannot longer be endured …"

It is further to be noted that this same resolution, instead of referring to the rights of the United States to redress, proceeds, after the recognition of the independence of Cuba, to declare, "Second, that it is the duty of the United States to demand and the Government of the United States hereby demand, that the Government of Spain at once relinquish its authority and government of the island of Cuba, and withdraw its land and naval forces from Cuba and Cuban waters."

The diplomatic correspondence exchanged between the two governments shows clearly that the motive of humanity was never lost from view, although it is true that the United States repeatedly referred to its own interests as a justification for the numerous protests which it presented to the Spanish Government.

⁵⁶ The answer to this question will vary with the examiner's prejudices. Perhaps an unbiased observer would find that the British Government has been generous and expeditious in reforms and projects for granting the fullest possible measure of autonomy to the Irish. We have to remember that England's national security requires that she should prevent Ireland 's serving as a fulcrum for the lever of any hostile power. Furthermore, the principles of justice repel the idea that the less numerous but more thrifty and prosperous Protestants should be handed over to the control of the Catholic majority. There is another consideration, which is the determination of in

how far Irish support of Great Britain's enemies in the last war should give her reason to pause in granting larger opportunities for mischief in the event of another war. It is doubtful, if Ulster were not given over, whether the Irish would be satisfied with any measure short of absolute independence, and an independence of which they should have all the advantages and none of the burdens.

⁵⁷ The above resolution was offered by Senator Gerry, on March 18, and adopted by a vote of 38 yeas to 36 nays, and it became Reservation No. 15 to the treaty. An attempt by Senator Thomas to add to the reservation a declaration of sympathy with Korea was rejected by a vote of 34 yeas to 36 nays. A motion by Senator Lodge to amend it by omitting the clause declaring the adherence of the United States to the principle of self-determination was rejected by a vote of 37

yeas to 42 nays, and upon being later moved in the Senate by Mr. Calder the same motion was laid on the table by a vote of 51 to 30. Senator Sterling attempted in the Senate to strike from the reservation the words "a consummation it is hoped is at hand ' ' but the attempt failed by a vote of 70 to 11." (Note by George A. Finch: International Conciliation pamphlets No. 153, p. 407-8.)

⁵⁸ The case of Greece is precisely similar to that of Belgium. Greece never achieved a de facto independence; on the contrary, at the moment of the European intervention, the Greek patriots were on the point of succumbing. The European Powers did not recognize, they saved Greece. As a matter of European policy, they thought fit to act in a manner decidedly hostile towards Turkey. The battle of Navarino may have been an 'untoward event,' but it was the natural and almost inevitable consequence of a forcible intervention to prevent the Turkish Government from reducing its subjects to submission." (Historicus [Sir Vernon Harcourt] on International Law, 1863, p. 6.)

⁵⁹ Strauch (Interventionslehre, p. 277), says the powers intervened because of the way in which Ibrahim Pasha conducted the war.

Oppenheim says: "Thus Great Britain, France, and Russia intervened in 1827 in the struggle between revolutionary Greece and Turkey, because public opinion was horrified at the cruelties committed during this struggle." (International Law, Vol. I, p. 194 ; cf . also Creasy : First Platform of International Law, p. 300-301 and notes.)

Stapleton expresses a similar opinion : "It was not until the mode in which hostilities were conducted by the Turkish general, Ibrahim Pacha, became at variance with the recognized rules of civilized warfare, so as to give every European State a right of war against Turkey, that he entertained the idea of a forcible intervention. It was evident that the Pacha was carrying on a war of extermination wherever there was the slightest resistance, he massacred all the males, and sent the women and children into slavery in Egypt. He was laboring to blot out of existence a whole Christian people, and to establish a new Barbary State on the shores of the Mediterranean, in the very midst of Europe. Mr. Canning held this to be a casus belli, giving all nations a right to interfere by force, and accordingly he consented to the Greek treaty, which admitted of a forcible interference, if necessary to prevent the consummation of this atrocious design." (A. G. Stapleton: Intervention, p. 32.)

⁶⁰ The important confidential correspondence recently published in the 6th volume of Buckle 's Life of Disraeli shows that the British Premier was unfortunately committed to defending Turkey against the outcry at the Bulgarian atrocities before he knew the truth of the accusations. It was natural that he should rely upon being informed by the British Ambassador, Sir H. Elliott (Buckle's Life of Disraeli, vol. VI, p. 64), of all that was going on in the Balkans. In a letter of December 2, 1876, Disraeli wrote to Sir Stafford Northcote relative to the popular demonstrations in favor of the oppressed Christians:

"Elliot's stupidity has nearly brought us to a great peril. If he had acted with promptitude, or even kept himself, and us, informed, these 'atrocities' might have been checked. As it is, he has brought us into the position, most unjustly, of being thought to connive at them. "But when we have committed a mistake, or find ourselves in difficulties, the best thing is to turn them into 'commodities,' as Falstaff says, or something like it. The 'atrocities' will permit us to dictate to the Porte. That was the meaning of the telegram respecting which you wrote to me. It is to be hoped, that the leading part, which England may take, in obtaining an armistice, and afterwards in the preliminaries, will make the excited 'Public' forget, or condone, the Elliotiana.

"I hope this may be effected long before your meeting." (Buckle: The Life of Benjamin Disraeli, 1920, vol. VI, p. 51.)

In a letter the next day to Lord Salisbury, he remarks: "Had it not been for those unhappy 'atrocities' we should have settled a peace very honorable to England, and satisfactory to Europe. "Now, we are obliged to work from a new point of departure, and dictate to Turkey, who has forfeited all sympathy..." (Ibid, p. 52.)

See Queen Victoria's opinion. (Ibid, p. 64.)

But having taken his stand, Lord Beaconsfield was, as the above letter indicates, too consummate a politician to be willing to weaken his prestige for the mere purpose of rectifying his mistake. Thenceforth we find that he continues to minimize the misdeeds of the Turk, although he admits that there is necessity for reform.

The correspondence also shows how slow the leaders of the opposition, Lord Granville and Lord Hartington, were to take up the question. They supported rather than opposed the Turkophile policy of the government, and seem to have lacked sympathy with the popular issue which Gladstone raised. (Ibid, p. 26 passim, p. 118.)

⁶¹ Russia was of course strongly actuated by her desire of acquiring new territory in the Balkans. With this object in view, she had signed a secret agreement with Austria. (Buckle: Life of Disraeli, 1920, vol. VI, p. 115-6.) It is this consideration which leads Professor Woolsey to write: "Thus, too, Russia intervened, in 1877, in behalf of Bulgaria. It was based in theory upon religious sympathy and upon humanity. It was a move, in fact, upon the Straits and Constantinople, in pursuance of Russia's century-long program." (T. S. Woolsey: America's Foreign Policy, 1898, p. 74.)

But even though conquest may have been the motive of the Russian Government, humanitarian intervention to prevent the inhumane treatment of the Christians was the justification of Russia's intervention.

Mr. Buckle, who writes with a sympathetic pen, thus describes what Disraeli believed should be the attitude of his government: "It could not intervene, as in the Crimean War, on Turkey's behalf, owing to her misconduct and the consequent alienation from her of popular sympathy in Britain. It should therefore adopt a position of neutrality in the war, but of watchful and conditional neutrality, and should at the outset obtain a pledge from Russia to respect British interests in Turkey, such as Constantinople, Egypt, and the Suez Canal." (Buckle: Life of Disraeli, 1920, vol. VI, p. 134.)

⁶² A decade before these events, Lord Lyons, when British Ambassador to Constantinople, in a letter to Lord Stanley of April 10, 1867, gives us the following account of the condition of the Christians in Turkey, and the intolerance of which they were the victims:

"Reports from the Consuls on the treatment of the Christians will have been pouring in upon you. The greater part of the grievances of the Christians are the result of bad government and bad administration of justice, and affect Mussulmans and Christians alike. Their peculiar grievances are their practical exclusion from the high offices of the State, the rejection in many cases of their evidence in the Law Courts, and what is most intolerable, the position in which they stand socially and politically with regard to the Turks. The Turks will not look upon them as equals and cannot trust them. In fact the Christians cannot feel loyalty to the Government because they are not trusted and employed; and they cannot be trusted and employed because they are not loyal to the Government. It is a perfect example of a vicious circle. It is useless to deny that the position of a Christian subject of the Porte is a humiliating position, and it is vain to expect that within any reasonable time the Christians will look upon the existing Government as anything but an evil to be endured or possibly even upheld as a less evil than revolution, but nothing more." (Lord Lyons: A Record of British Diplomacy, by Lord Newton, Vol. I, p. 167.) The motive put forward for the various interventions in Turkey has usually been the safety of Europe, but in certain instances, among which was this one, the real motive has been humanity. Professor J. B. Moore gives this as an example of intervention to put an end to intolerable conditions (Moore's Digest, Vol. IV, p. 3). Freeman Snow (in the syllabus to his valuable Cases and Opinions on International Law, 1893, p. xxiii) classes it in the same category with the case of Greece, 1826. Morley in his Life of Gladstone, speaking of this incident says (Vol. II, p. 555): "Humanity was at the root of the whole matter; and the keynote of this great crusade was the association of humanity with a high policy worthy of the British name." Captain Mahan, who is known as an Anglophile nevertheless speaking with approval of Russian intervention, says: ".. .when Russia, in 1877, acting on her own single initiative, forced by the conscience of her people, herself alone struck the fetters from Bulgaria." (A. H. Mahan: Some Neglected Aspects of War, p. 44; cf. also p. 48.)

⁶⁸ Lord Blachford, a practical statesman of long experience, whom it is said Lord Granville wished to become permanent Under Secretary of State for Foreign Affairs and whose talent and grasp of mind Cardinal Newman considered preeminent, discusses Russia's intervention in a letter dated May 15, 1878:

"1. I dare say you are right in saying that there is a large section which upholds war against the Turks as 'a crusade' - the 'Pall Mall' is always saying so. But I never myself happened to see any person in the flesh who advocated it or to read any printed or written paper in which it was avowed or could be inferred.

"2. I dare say that the feelings of Russians are partly crusading, partly Panslavist - just as my feelings might be partly sportsmanlike and partly domestic, if I shot a wolf which was tearing to pieces my brother but the basis of my action would be the desire to save a human being from a savage brute. The English who felt strongly about Bulgarian atrocities were neither Slav nor 'Orthodox'.

"3. As you allow of a war for 'suffering humanity' you of course do not agree with the passage of Mackintosh which you quote (unless you explain it away) - neither do I.^a It seems to me transparently rhetorical. It is plainly much more wicked to attack on insufficient grounds a prosperous and virtuous government than a corrupt and desolating one. In one you injure the people, in the other only the rulers and their armies, with (supposed) benefit to the people. It is also plainly a subject of regret that a good government should be destroyed, while it may be a subject of just and stern rejoicing that, by whatever agency, a bad one should be destroyed, and its subjects transferred to those by whom they will be better used.

"4. Of the past history of Russia I know next to nothing. I only see with my eyes on maps the respective annexations of England and Russia during the last century and a quarter, and am astounded at the fact that England should assume the position of accuser in this respect.

"5. I am disposed to look leniently on our minister's omission to notice the hint about Bessarabia. So long as independent Romania lies between Turkey and Russia I cannot see why 50 or 60 miles more or less of sea coast should signify. Russia's crime (which is very disgusting) is in taking it against the mill of her ally, which did not appear till the Treaty of S. Stefano (and perhaps does not now much concern us; unless we want a quarrel).

"6. I agree with you in not confining the delinquencies of England to a single act (the Berlin Memo.). I begin by hating with my whole soul, what may be called our traditional policy (avowed by Palmerston and Beaconsfield) of bolstering up, for our own purposes, such a desolating and loathsome oppression (I conceive these words to be chosen with accuracy) as Turkey. Then I think it was our bounden duty to retrieve the tremendous error of guaranteeing the 'independence and integrity' of such an oppressor as soon as the Seraglio put itself in the wrong by not giving effect to the provisions of the Hatti Humayun of the Treaty of Paris. This duty arose probably very soon after the Treaty, but may be said (by an apologist) to have escaped notice, in so far as it merely appeared in reports and official documents. It was allowed to slip

[^a The passage is in Mackintosh's Essay on the Partition of Poland; "There is no political doctrine more false or more pernicious than that which represents vices in its internal government as an extenuation of unjust aggressions against a country, and a consolation to mankind for the destruction of its independence. As no government is without great faults, such a doctrine multiplies the grounds of war, gives an unbounded scope to ambition, and furnishes benevolent pretexts for every sort of rapine."]

out of sight.

"But three years ago this duty forced itself upon our notice by the Herzegovinian revolt, and the English Ministry adopted a course of action by which they did not merely neglect, but deliberately repudiated it, taking 'independence and integrity' as the key of their policy, not in one case or another, but time after time. The Constantinopolitan conference was an exceptional incident, almost avowedly forced on the Government by the Bulgarian agitation made abortive by parallel communications with Turkey and at the close of which the Government (by the appointment of Layard and other matters) have come back to what I should call 'their vomit,' that

is to say a course of obstructive special pleading, hiding the reconstruction of what is intolerable, under the phrase (which I see you adopt) 'the faith of treaties.' I say this because it is too evident to be denied that our present proceedings are such as to enable Turkey to prepare for a fresh struggle, that in case of such a struggle we have her as an ally, and that in case of such an alliance we must necessarily repay the Sultan and his Ministers by replacing them more or less in

possession of the authority of which Russia threatens to deprive them.

"On the main point, I think the great difference between us is that I am thoroughly impressed by the belief that Turkey is incorrigible, while Russia is in process of improvement. These things - both of them - come to my mind with the clearness of the sun. And the suggestion of allowing Turkey a year for improvement appears to me like allowing a notoriously bankrupt debtor a month's respite, during which he will remove his goods, and at the end of which the creditor (Russia) will have to recommence an expensive litigation which, when the dilatory plea was urged, was on the point of being brought to a hearing, sure to end in a success. I should be very sorry to stand godfather to the motives of Russian statesmen. I dare say they are as selfish as our own profess to be. But they have this advantage that their interests (so far as the liberation of the Turkish provinces go) coincide with the interests of humanity with which our own (alleged) interests conflict. And the result is that their present position, as viewed in future history, is on the road to grandeur ours on the road to meaness." (Letters of Lord Blachford, edited by Marindin, London, 1896, p. 389-391 ; see ibid, pp. 295 ; 441, for references to Granville and Newman's estimate of Blachford.)

⁶⁴ We do not consider here interventions which vindicate the law of war between independent states, which have been considered in the preceding section (§ 7). Such interventions are, of course, ordinary instances of the vindication of the law of war, and are not matters of internal concern, as in the case of civil conflicts. In both classes of cases, however, humanitarian considerations enter as a motive of governmental action.

⁶⁵ "Injustice" is a somewhat vague term for which we might substitute "denial of justice," or "abusive treatment of individuals."

⁶⁶ This account of the assassination of King Alexander and Queen Draga is based upon that given by Professor Jules Basdevant in the Revue generate de droit international, vol. XI, 1904, p. 105-114. Professor Basdevant discusses the juridical principles involved, as well as the events. We have translated and quoted textually, for the most part, the portions which contains Professor Basdevant 's statement of the facts, but have omitted his comments and discussion, for which the reader is referred to the original. As his source, M. Basdevant refers mainly to the Journal des Debats for June, 1903.

⁶⁷ M. Basdevant remarking that "It is not necessary to go back to the precedents of the Borgias' time," draws a comparison between this instance and that of Tsar Paul I, who also was assassinated by his officers. M. Basdevant might have added: "with the connivance of his successor."

⁶⁸ Professor Basdevant, discussing the recognition of Peter I of Serbia, states that to refuse to recognize the complete competency of a state to choose its chief would amount to an intervention.

⁶⁹ This note is discussed in the Matin of Sept. 10, 1909, and in the Petit Parisien of Oct. 19, 1909.

Upon the basis of the facts as given above, Rougier enters upon an interesting discussion of the legality of humanitarian intervention, of which he says, this is an instance.

⁷⁰ In his article on the Theory of Humanitarian Intervention, published in the same Revue (ibid, p. 477), M. Rougier refers to this incident and remarks that in the month of September, 1909, the powers who had signed the Act of Algeciras, in a diplomatic note addressed to the Sultan of Morocco, based their action squarely on the right [la theorie] of humanitarian intervention.

⁷¹ Stapleton criticizing Palmerston says: "In speaking of our forcible interference in the affairs of Spain and Portugal in 1834, he [Palmerston] observed, 'We looked upon the question, not as a simple choice between one Sovereign and another, but (as it was in reality) absolute government on the one hand and constitutional government on the other;' and then having argued to prove that constitutional government in the Peninsula was advantageous to British interests, he claimed

great merit for having been above all 'narrow-minded prejudices' in determining 'on an act of forcible interference for the purpose of giving those countries the blessing of constitutional government.' (A. G. Stapleton: Intervention, p. 109-110.)

^71a The recently published diplomatic correspondence relative to Mexican affairs in 1913 (Foreign Relations, 1913, p. 692f.) discloses a succession of acts of interference by the American Government in the internal affairs of Mexico, made necessary by the peculiar relations between the two states. But the action of President Wilson in regard to outlawing the Huerta Government was unusually drastic. By Secretary Bryan, the following circular instruction, dated November 7, 1913, was sent to certain of the American diplomatic representatives : "While the President feels that he cannot yet announce in detail his policy with regard to Mexico, nevertheless he believes that he ought, in advance thereof, to make known to the government to which you are accredited his clear judgment that it is his immediate duty to require Huerta 's retirement from the Mexican Government, and that the Government of the United States must now proceed to employ such means as may be necessary to secure this result; that, furthermore, the Government of the United States will not regard as binding upon the people of Mexico anything done by Huerta since his assumption of dictatorial powers, nor anything that may be done by the fraudulent Legislature which he is about to convoke. The President hopes that the government to which you are accredited will see fit to use its influence to impress upon Huerta the wisdom of retiring in the interest of peace and constitutional government. "You will convey the foregoing to the Minister for Foreign Affairs." (Foreign Relations, 1913, p. 856.) The Italian Minister for Foreign Affairs considered that "...Huerta was no worse than the others and the only person in sight apparently strong enough to restore order of some kind." (Ibid, p. 857.)

Sir Edward Grey was informed by Ambassador Page that ''he might consider Huerta 's elimination certain, the question now being: Shall he be eliminated with or without the moral support of the British Government? Sir Edward's last words were 'It is a very grim situation."

(Ibid, p. 857.)

But in a later interview, November 11, (ibid, p. 860), Sir Edward Grey promised to instruct Sir Lionel Garden, the British Minister, that if Huerta asked for British aid or showed by act that he expected it, Garden should inform him that he should not have it, but "Sir Edward stopped short at saying that without such act or request from Huerta he would instruct Garden to take the initiative in approaching him." (Ibid, p. 860.)

The Government of Panama replied, that "as the efforts of President Wilson to restore constitutional government in Mexico is generous and noble, the Panamanian representative has been instructed to say that Panama sympathizes with those efforts." (Ibid, p. 861.) Some other Latin American countries made a favorable response.

⁷² The New York World of August 3, 1920, printed the following report from Washington: "The United States has extended formal recognition to the present Government of Costa Rica, it was announced to-day by the State Department. On Jan. 27, 1917, Federico Tinoco overthrew the constitutional Government of Costa Rica, forcing President Gonzalez to leave the country. The United States refused to recognize the Tinoco Government on the ground that it did not represent

the will of the people. In August, 1919, Tinoco left Costa Rica, and a month later his government fell. He got out ahead of the crash.

"After the constitutional succession was reestablished Julio Acosta was chosen by an overwhelming majority and was inaugurated as constitutional President on May 8 of this year. In making the announcement Secretary of State Colby said: " 'President Wilson 's policy has been completely vindicated and Costa Rica is now organized in accordance with the principles laid down by the Government of the United States when recognition was refused to the Tinoco regime.' "

⁷³ Professor Lingelbach refers to Hertslet, vol. II, No. 171.

⁷⁴ The following extract from Daniel Webster's report to President Fillmore on the Thrasher Case expressed the same opinion, although that case, relating to the right of a citizen domiciled abroad to the interposition of his government, was not directly in point. The Secretary of State said: "Our citizens who resort to countries where the trial by jury is not known, and who may there be charged with crime, frequently imagine, when the laws of those countries are administered in the forms customary therein, that they are deprived of rights to which they are entitled, and therefore may expect the interference [interposition] of their own Government. But it must be remembered, in all such cases, that they have of their own free will elected a residence out of their native land, and preferred to live elsewhere, and under another government, and in a country in which different laws prevail. "They have chosen to settle themselves in a country where jury trials are not known; where representative government does not exist; where the privilege of the writ of habeas corpus is unheard of, and where judicial proceedings in criminal cases are brief and summary. Having made this election they must necessarily abide its consequences. No man can carry the aegis of his national American liberty into a foreign country, and expect to hold it up for his exemption from the dominion and authority of the laws and the sovereign power of that country, unless he be authorized to do so by virtue of treaty stipulations." (Moore's Digest, vol. II, p. 88.)

⁷⁵ "It is very desirable," said Mr. Root, "that people who go into other countries shall realize that they are not entitled to have the laws and police regulations and methods of judicial procedure and customs of business made over to suit them, or to have any other or different treatment than that which is accorded to the citizens of the country into which they have gone; so long as the government of that country maintains, according to its own ideas and for the benefit of its own citizens, a system of law and administration which does not violate the common standard of justice that is a part of international law; and so long as, in conformity with that standard, the same rights, the same protection, and the same means of redress for wrong are given to them as are given to the citizens of the country where they are." ( See Elihu Root, in Proceedings of the American Society of International Law, 1910, p. 26.)

⁷⁶ The defenders of the theory of perfect rights and absolute independence may avoid this horn of the dilemma by recognizing that the states which do not observe this requirement are in a separate class of partially sovereign states, but if this theory should be adopted, it would then be necessary to make constant modifications in the list of states completely independent, for any state against which a justifiable intervention upon this ground took place would have to be dropped. This second horn of the dilemma is no less painful than the first.

⁷⁷ Borchard: Diplomatic Protection, p. 13-14; 14 notes 1, and 2.

Discussing the justification for the protection of nationals in other states, W. E. Hall (Foreign Jurisdiction of the British Crown, 5) declares that this interposition, although he does not use this term, "...gives the means of guarding them against the effect of unreasonable laws, of laws totally out of harmony with the nature or decree of civilization by which a foreign power affects to be characterized, and finally of an administration of the laws bad beyond a certain point. When in these directions a state grossly fails in its duties ; when it is either incapable of ruling, or rules with patent injustice, the right of protection emerges in the form of diplomatic remonstrance, and in extreme cases of ulterior measures."

Secretary Bayard, in his instruction of August 24, 1886, to the American Minister to Peru, relative to the killing by government troops of an American non-combatant, Owen Young, in violation of the law of war, wrote: "It cannot be admitted that in every case the rights of a foreigner in that country [Peru] may be measured by the extent of the protection to person and property which a citizen might obtain. In times of civil conflict ....it not infrequently happens that citizens of a country are compelled to endure injuries which would afford ample basis for international intervention [interposition], if they were inflicted on a foreigner." (Moore's Digest, Vol. VI, p. 252 ; cf. p. 759.) Without the qualification relative to the extreme case of a civil war, this would be a good statement of the rule of law as exemplified by practice.

Professor Eugene Wambaugh, in a carefully prepared address on "The Place of Denial of Justice in the Matter of Protection" (Proceedings of the American Society of International Law, 1910, pp. 126-137) gives the rules which he considers to constitute good practice, the second of which reads: "The alien is entitled to no more enlightened procedure than is accorded to the citizen, unless that procedure is so cruel or unjust as to lose the right to be termed judicial," which amounts to saying that the alien does have a right to a favored treatment when the procedure is so cruel or unjust that it can no longer be rightfully termed judicial.

We have seen above ( p. 80-81 ) how the French Government insisted that French Jews in Switzerland should be exempted from the disabilities and discriminations then imposed by Switzerland upon her own Jews.

⁷⁸ See Senate Document No. 316, p. 6-30 ; also report of the American Consul-General at Boma, Senate Document No. 147, 61st Congress, 1st Session, p. 35-40.

⁷⁹ The names of the signers who honored their country and themselves by their appeal were : G. Stanley Hall, Samuel B. Capen, Benjamin F. Trueblood, John R. Gow, Wm. E. Huntington, Herbert S. Johnson, Frederick B. Allen, Edward H. Clement, Edward M. Hartwell, Thomas Lacey, Charles F. Dole, Edward W. Capen, Edwin D. Mead, Everett D. Burr, Charles Fleischer, Thomas S. Barbour; Hugh P. McCormick ( Corresponding Secretary ).

⁸⁰ The powers intervening for the protection of the Aborigines in the Congo district principally relied on articles 2 and 5 of the Brussels act. Article 5 related to the punishment of persons taking part in the capture of slaves, the perpetrators of the mutilation of adults and male infants, and the organizers and abettors of man-hunts. Article 2 of the Brussels Act, more frequently referred to, reads as follows :

"The stations, the cruisers organized by each Power in its inland waters, and the posts which serve as ports for them shall, independently of their principal task, which is to prevent the capture of slaves and intercept the routes of the Slave Trade, have the following subsidiary duties:

"1. To serve as a base and, if necessary, as a place of refuge for the native populations placed under the sovereignty or the protectorate of the State, to which the station belongs, for the

independent populations, and temporarily for all others in case of imminent danger; to place the populations of the first of these categories in a position to cooperate for their own defense; to diminish intestine wars between tribes by means of arbitration ; to initiate them in agricultural works and in the industrial arts so as to increase their welfare ; to raise them to civilization and bring about the extinction of barbarous customs, such as cannibalism and human sacrifices.

"2. To give aid and protection to commercial undertakings; to watch over their legality, especially by controlling contracts of service with natives; and to lead up to the foundation of permanent centers of cultivation and of commercial establishments.

"3. To protect, without distinction of creed, the Missions which are already or may hereafter be established.

"4. To provide for the sanitary service, and to grant hospitality and help to explorers and to all who take part in Africa in the work of repressing the Slave Trade."

The General Act of the Conference of Berlin of February 26, 1885, also made provision for the protection of the aborigines of the region in question, but since the United States had not become a party to the Berlin Act, it based its action upon the articles of the Brussels Act.

⁸¹ See the testimony published in Senate Document No. 316, 59th Congress, 1st Session, and Senate Document No. 147, 61st Congress, 1st session, and in Foreign Relations, 1908.

Consul General Smith's report from Boma, dated March 21, 1908, contains the following: "I have the honor to call your particular attention to the conditions brought about by the excessive rubber tax imposed on the unfortunate natives in this district. The similarity between these conditions and those existing in the region visited by myself are worthy of note. It is no uncommon thing for the rubber gatherers to be eaten by leopards, which abound in many regions of the State, and I well recall the case of a native who had been thus eaten and whose remains what was left of them were brought to the State post at Yambata while I was there. The so-called police expeditions mentioned in the report are nothing more than armed raids for nonpayment of rubber taxes and for the purpose of securing laborers to work on the railroad from

Kindu south to Fortes d'Enfer." (Foreign Relations, 1908, p. 551.) The evidence collected by the British Consul, Sir Roger Casement, and published by the British Government is referred to in the correspondence.

⁸² The British opinion relative to the annexation of the Congo is indicated in Charge Carter's report of Dec. 12, 1906. (Foreign Relations, 1907, Part II, p. 793-4. Cf. Minister Wilson's report of February 7, 1907, Foreign Relations, 1907, Part II, p. 806.)

⁸³ Secretary Root, in his instruction to Minister Wilson, January 15, 1907, writes: "Our attitude toward Congo question reflects deep interest of all classes of American people in the amelioration of conditions. The President's interest in watching the trend toward reform is coupled with earnest desire to see full performance of the obligations of articles 2 and 5 of slave-trade act, to which we are a party. We will cheerfully accord all moral support toward these ends, especially as to all that affects involuntary servitude of the natives. It is the President 's desire to contribute by such action toward the realization of whatever reforms may be counseled by the sentiments of humanity and by the experience developed by the past and present workings of the Congo administration. The Belgian Parliament having adopted principle of annexation and appointed a committee to arrange details, it is alike proper that the wish of the President for substantial improvement of conditions in the Congo be made known, and that he should for the present observe an expectant attitude, as we understand is the policy of some of the powers signatories to the act of Berlin." (Foreign Relations, 1907, Part II, p. 799-800. Cf. similar instructions to the American Charge dated December 10, ibid, p. 793.)

Sir Edward Grey suggested the advisability of giving the Belgian Government "...a private hint as to the attitude which our two Governments might in certain contingencies be compelled to adopt." (Foreign Relations, 1907, Part II, p 825.)

⁸⁴ At different periods of this discussion, the American Government appears to have varied somewhat in the degree of intimacy of the collective action which it was willing to take with Great Britain.

January 23, 1908, Minister Wilson reports: "Visited Belgian minister for foreign affairs in company with Sir Arthur H. Hardinge and made representation in accordance with our several instructions." (Foreign Relations, 1908, p. 540. These instructions were that each representative should separately present the representations of his own government. Cf. instructions of March 19, ibid, p. 550-551.)

February 28, 1908, Charge Carter reports Sir Edward Grey as hoping that if further action was necessary it might be "...a joint representation of both our governments, and to that end he would duly inform you of the line he proposed to take, so that the representations in question might be identical.

"He said he welcomed the fact of our working together in this matter, and that the amount of good we were able to do in the Congo was vastly increased and far greater than their isolated action would be our action being disinterested was open to no suspicion in any quarter and that he was prepared to go with us as far as we would wish." ( Foreign Relations, 1908, p. 544.)

Ambassador Bryce, in his note to the Secretary of State, March 23, 1908, wrote: "I am now directed by His Majesty's Government to inform you that they are very sensible of the advantages attaching to the cooperation of the United States Government in their efforts to bring about a more satisfactory state of affairs in the Congo, and I am to add an expression of their cordial thanks for the communication of Mr. Smith's report and the consent given to the publication of extracts from it in the papers to be submitted to Parliament." (Foreign Relations, 1908, p. 553.)

April 1, 1908, Secretary Root instructed Minister Wilson: "You may independently and coincidently express our views in the same sense as Great Britain does." (Foreign Relations, 1908, p. 556.)

On February 8, 1908, Secretary Root informed the British Ambassador "...that the department has this day instructed by telegraph the American minister at Brussels to join in representations in the same sense as those proposed to be made by Sir Edward Grey." (Foreign Relations, 1908, p. 562.) The same day, he telegraphed Minister Wilson: "You will in conference with the British minister and in your representations to the Belgian Government support the line proposed to be adopted by the British minister for foreign affairs." (Ibid, p. 563.) That this instruction was carried out is indicated in Minister Wilson 's dispatch of April 17: "Upon receipt of these instructions, I immediately sought an interview with Sir Arthur Hardinge, and informed him that I had been instructed to 'support the line proposed to be adopted by the British minister for foreign affairs,' and that I would be glad to have his views as to the course which should be adopted.

"After some discussion it was agreed that on the Monday following Sir Arthur should have an interview with M. Davignon, and hand in his memoranda, and that the presentation of the memorandum from this legation should follow after an interval of three or four days. It was also agreed that in the course of his interview he would advise M. Davignon of the exchange of views which had taken place between the British Embassy in Washington and the Secretary of State, and would intimate that in all probability a communication in support of the British propositions would be received from this legation.

"In performance of this program Sir Arthur saw M. Davignon on Monday afternoon, and immediately afterwards sent me a note reporting the substance of the interview.

"Yesterday (Thursday, 16th) I visited the foreign office and in the absence of M. Davignon, who was in attendance on the discussion of the Congo annexation bill in Parliament, I delivered the memorandum (which I had prepared and previously submitted to my British colleague) to the Chevalier van der Elst, secretary general of the foreign office, after having first verbally informed him of its contents. A copy of the memorandum is herewith enclosed." (Foreign Relations, 1908, p. 568-9.)

In the memorandum which Minister Wilson presented he supported the representation of the British Government relative to forced labor, but in regard to the "...reference to arbitration of all purely commercial and economic questions, the American Government limits itself at this time to an expression of the hope that the Belgian Government may see its way clear to frankly and promptly accept a proposition so reasonable and so entirely in accordance with the rapidly growing practice of civilized nations." (Foreign Relations, 1908, p. 569.) The memorandum closed with an expression of concurrence with the propositions submitted by the British Government, and the hope that they would receive the careful attention and consideration of the Belgian Government.

April 29, Secretary Root instructed Minister Wilson: "Keeping in touch with the British minister, you will continue to cooperate with him in this matter where the interests of the two Governments are identical, though resting on different treaties. The department will await your further reports." (Foreign Relations, 1908, p. 572.)

⁸⁵ The powers intervening in the Congo relied principally upon Articles 2 and 5 of the Brussels Act, which has been already referred to. Great Britain also based its protests upon the violation of the Act of the Conference of Berlin, signed February 26, 1885. But the United States was not a party to this Act.

Some of the instances where considerations of humanity were referred to as a ground for the representations of the powers will be found in the documents from which we have quoted. See, amongst others, Foreign Relations, 1907, Part II, p. 793, 794; Ibid, 1908, p. 541, 542, 550, 560. See also Senate Document No. 316, p. 5.

⁸⁶ The disinterestedness of the intervention of the United States is referred to in Foreign Relations, 1908, p. 544, 561. See also Senate Document No. 316, p. 5.

⁸⁷ This account is based upon the somewhat voluminous correspondence contained in Foreign Relations, 1905, p. 87-93; ibid, 1906, Part I, p. 88-105 ; ibid, 1907, Part II, p. 791-829; ibid, 1908, p. 537-593; Affairs in the Congo, Senate Document No. 147, 61st Congress, 1st Session; Alleged Conditions in Congo Free State, Senate Document No. 316, 59th Congress, 1st Session. In Foreign Relations, 1909, p. 400-414 and Foreign Relations, 1910, p. 686-693, will be found some further correspondence relative to fulfilment by the Belgian Government of the expected reforms in the annexed territory.

⁸⁸ Consul Fuller 's statement cannot be considered as a frank description of his real purpose. The investigation, according to the statement of the Consul himself, was undertaken in opposition to the real wishes of the Peruvian Government. (See Foreign Relations, 1913, p. 1262.)

We note here an embarrassment evidently due to the unfortunate and unfounded belief that intervention upon the ground of humanity is not justifiable in international law. We find this same erroneous opinion expressed by Secretary Knox in his letter of February 4, quoted above. The British Government does not appear to have fully concurred in this opinion, since the British Consul gives humanity as one of the grounds justifying him in undertaking the investigation.

⁸⁹ Cf. Acting Secretary of State Wilson's comment quoted above upon Peru's conduct of her own investigation. (Foreign Relations, 1913, p. 1244.)

In his report of July 31, 1912, Consul Fuller writes:

"Although I am unable to point out at present anything specific, still my impression is now that the government is no more anxious to have us make a trip to the Putumayo or to see personally the conditions existing there than the company is, so that we should probably gain no more information from a trip on one of the government launches than from that of the company."

In the same report he writes:

"In making our arrangements with the company, we insisted on paying our passage and stated that we also wished to pay for anything that we might find it necessary to buy up the river, although they offered us free passage and all we might need."

Further along he remarks :

"The local situation remains much the same as it was two weeks ago, so far as the Iquitos public in general is concerned. The tone of the articles that have been appearing in the public press has produced, however, a feeling of irritation and resentment at what they privately characterize as meddling on the part of the United States and England among the Government officials here, but to both Consul Michell and myself they have continued studiously courteous. The officials are undoubtedly becoming nervous in regard to the situation.

"My British colleague and I called on the acting prefect and applied for some document in the nature of a passport, to be addressed to the local authorities, and this he said he would be glad to give us. He also suggested sending a military aide to accompany us, and though we were by no means enthusiastic over this proposition I fear that we may not be able to avoid it." (Foreign Relations, 1913, p. 1262; Cf. p. 1244-5, quoted above.)

Consul Fuller closed his report of August 6 as follows :

"I regret that both the company and the Government adopted the course of preventing us from seeing the actual conditions wherever possible, but trust that the course I pursued in the matter may meet with the department's approval." (Foreign Relations, 1913, p. 1278.)

⁹⁰ See Foreign Relations, 1913, p. 1242, 1244, 1246-9; see also "Slavery in Peru," House Document No. 1366, 62nd Congress, 3rd Session.

⁹¹ This blue book is reproduced in House Document 1366 on "Slavery in Peru," 62nd Congress, 3rd Session. It contains a note which Secretary Knox addressed May 24, 1912, to the British Charge in which, at the last moment, the Secretary suggested that the publication of the evidence be deferred in view of the new legislation promised by Peru.

Secretary Knox wrote: ''In view of this positive manifestation of the purposes of the Government of Peru, I have the honor to inquire whether His British Majesty's Government might not be of the opinion that it would be most conducive to the attainment of the ends desired to postpone for the present the publication of the correspondence transmitted with your note under acknowledgment." (Slavery in Peru, House Document No. 1366, 62nd Congress, 3rd Session, p. 441.)

In consideration of the evidence of the bad faith and procrastination of the Peruvian Government then before Secretary Knox, it is hard to understand what good purpose could have been served by this delay.

Sir Edward Grey, in his reply, June 27, 1912, said : "I am unable to fall in with Mr. Knox 's view that publication might with advantage be deferred, as I am convinced that an authoritative account of the facts of the case cannot but assist the Peruvian Government in their reforming efforts and direct them to the proper channels." (Ibid, p. 442.)

⁹² The slave trade was a natural adjunct of slavery when the latter was fully recognized as an institution of the law of nations, but the manifest and frightful cruelties which were inseparable from the commerce in human beings came to be considered by a consensus of the civilized powers as so gross a violation of humanity as to justify the exercise of constraint against any state which tolerated it under its flag. In other words, the slave trade became illegal and a sufficient justification for humanitarian intervention against any government countenancing it.

The late Alpheus H. Snow has made a thorough study of the history of the abolition of the slave trade (in his The Question of Aborigines in the Law and Practice of Nations, chap. VII, p. 85-100), and reaches the conclusion that "…. Undoubtedly 'the slave trade,' in the technical sense, is now contrary to the universal, or common, law of nations. A state which should authorize its citizens to engage in it would, it would seem, clearly violate the law of nations. A state which should even tolerate traffic in slaves, as a social institution, in any place under its sovereignty, would undoubtedly at the present time subject itself to international repressive or punitive action, unless it could show, in its own defense, that it had done, and was doing, everything possible to abolish the traffic."

Hall lends his authority to this view. He writes (International Law, 4 ed., 108, p. 343) : "Thus a compact for the establishment of a slave trade would be void, because the personal freedom of human beings has been admitted by modern civilized states as a right which they are bound to respect and which they ought to uphold internationally." One is surprised to read in Westlake (International Law, vol. I, p. 170) : "Thus for the detection and suppression of the slave trade, there is no right of visit and search by general law, but only by treaty between states which have conceded it to one another in their just hatred of that traffic, which, however abominable, has never been regarded as an international offense." (Cf. Woolsey, 6 ed., §§ 215-218, p. 370-378). The offense, it is true, is primarily one for repression by each sovereign and not like piracy, one which may be punished by all the states, but it is, nevertheless, an offense against international law for the suppression of which each government is responsible, and a failure to fulfill this obligation is in itself an international offense.

The following excerpts from the notes and correspondence of Sir Frederick Rogers [later Lord Blachford] indicate the zeal with which the British Government under Lord Palmerston used its influence to repress the slave trade.

"The English nation, while its own interests are not very visibly and gravely concerned, has a strong vein of philanthropy, but it is in regard to negro slavery that this feeling has so taken hold of the people, and is so powerfully organized as to become a political influence. Partly on this account and partly also, I doubt not, from genuine conviction, Lord Palmerston had taken up this particular question, and felt himself bound to assist, if possible, certain plans of the French Government for conducting an immigration from the West Coast of Africa to the French negro colonies, which was supposed to have hitherto covered a disguised slave trade.

"The French Government, pressed by its planters, did not venture simply to suppress this, and, I take it for granted, replied to a remonstrance by pointing to our own coolie emigration (which it had for some time been my special function to superintend). At any rate, Lord Palmerston, then Premier, and Lord Clarendon, then at the Foreign Office, suggested to the French that, if they would give up their African emigration, they might be allowed to take coolies from India to their colonies on the same terms (mutatis mutandis) as those on which they were taken to English colonies. Neither the India Office, nor the Colonial Office, much liked this arrangement, because it appeared probable that, since we had not been more than able to protect the coolies in our own colonies, we should be less than able to protect them in those of France; and so the evil of quasi-slavery might exist, the responsibility of it merely being transferred from the Foreign Office (which was bound to protect the Africans) to us, or rather to the India Office, which was bound to protect the Indians." (Marindin: Letters of Lord Blachford, p. 170-171.)

Sir Frederick Rogers sums up a long harangue of Persigny relative to the relations between France and England in their bearing on the negotiation in hand: "The sense is this. The French Government have promised their colonies to revive the slave trade (in substance), the English make such a row about this that it may lead to war or something like it, unless the dispute is evaded. The French Government is too far pledged to give in visibly, whether wrong or right. But if you will let us get emigrant laborers from India instead of buying slaves in Africa, we will give up the African enterprise and tell our colonists that we have made a capital bargain for them, and so we shall be out of the mess altogether." (Ibid, p. 175.)

In reference to the space allotment for coolie emigrants, Sir Frederick Rogers writes: "I was much amused at one point which I tried to make. The French pack their emigrants and ships twice as close as we do, and yet they have had very good passages. Of course they object to imposing on themselves our strict law, and I wanted to come to some compromise, so I tried to find what would pacify them, and suggested 50 cubical feet par personne. This posed old Persigny, who wanted to know what it meant ; and betook himself in a vague perplexed way, like a puzzled linen-draper, to a measuring tape which he began to pull out, and measure distances in the air as if that would help him. So I explained that 50 cubical feet was 6 feet long l ½ feet broad and 5 ½ feet high, or to make the matter more intelligible, if he would imagine the whole ground pretty well covered with human beings lying at full length, and 5 ½ feet of height above them, that would be the thing - 'and,' I added, 'I don't think you can well give a man less than that.' 'I shall not easily forget the mixture of disgust and astonishment and amusement with which he burst out 'Sacré Dieu! non! they will all be sick' (or rather 'seek') 'too,' on which I began to repent me of having given in so much, and tried to retrieve a point or two, with what success remains to be seen." (Ibid, p. 178-9.)

An extract from another letter shows how large an account was taken of public opinion in regard to the commerce in human beings: "He read me a long list of the 'Minister of Marine's' objections to what I may call my requirement, that the French should collect emigrants for themselves instead of throwing it on the British Government, and of his own reply which was characteristic and amusing. The civil deference with which the objections of the ' Marine ' were magnified and evaded was very French; and an elaborate argument that the cordial and bona fide cooperation of the English Government might be counted upon because the success of the scheme was the only way in which Lord Palmerston could escape from allowing the French emigration from Africa and so incurring the pressure of public opinion, 'which is so susceptible á

cet égard' and of 'la Société Biblique' (which was made to figure as a great political power), was wonderfully characteristic of a French view of English manners." (Ibid, p. 180.)

⁹³ The British representative, February 12, 1863, addressed the following note to the Brazilian Government:

"Her Majesty's Government are of opinion that the effect of the new regulations for the government of negroes in the Itapura establishment is, practically to consign to forced servitude for six years men, women, and children who are free according to the showing of the Brazilian authorities themselves; and Her Majesty's Government consequently feel themselves bound to require that these Africans, who were liberated under British auspices, shall not be subjected to the regulations in question." (Parliamentary Papers, 1863, vol. 73, Correspondence Respecting Liberated Slaves in Brazil, [3189].)

Ashley, writing of Lord Palmerston 's efforts to suppress the slave trade and to discourage slavery says: "For nothing will Lord Palmerston be more honorably remembered than for his long and successful efforts for the suppression of the slave trade and the discouragement of slavery. From the moment that he was called to the Foreign Office in 1830, he entered warmly into the subject, and with his whole heart labored for their extinction. He sought to engage all maritime states in one great network of treaties for the combined annihilation of this nefarious traffic in human beings, and to a large extent he succeeded. Some of the Spanish and other diplomatists used to be quite surprised at what they thought his craze, and were fain to humor him on, what they considered, so insignificant a matter. When action succeeded to negotiation as, - for instance, in the decisive blow dealt in 1840 at the Portuguese slave dealers by the destruction of their barracoons on the West Coast of Africa - he never allowed any consideration for the susceptibilities or anger of foreign Governments to induce him to halt in his course. On the contrary, when the country, sick with deferred hopes and aghast at the expense of the necessary squadrons, seemed, at one moment, disposed to flinch, his earnest language, conveying lofty aspirations, maintained its spirit and strengthened it for renewed efforts." (Ashley's Life of Palmerston, vol. II, p. 228.)

⁹⁴ British East Africa, or Ibea, A History of the Formation and Work of The Imperial British East Africa Company, compiled with the authority of the directors from official documents and the records of the company, by P. L. McDermott, London, 1893, p. 17-8.

⁹⁵ In the case of the Congo, discussed above, the articles of the Brussells Act were appealed to in order to protect the aborigines. Phillimore (Commentaries, vol. I, Part III, ch. XVII) has an interesting account of slavery and the slave trade.

⁹⁶ We have departed somewhat from the rigid logic of our classification to adopt a designation which cannot be considered as a purpose to justify intervention at all. For asylum is one of the means of carrying out humanitarian intervention. Nevertheless, in practice, the asylum which is afforded in legations and warships has generally been restricted to escaped slaves and political refugees, so that we might have written out our title "as humanitarian intervention for the protection of escaped slaves and political refugees."

⁹⁷ Creasy, discussing the report of the Royal Commission on Fugitive Slaves, quotes with approval the opinion of Sir George Campbell that ''the time has come when this country may fairly say we will under no circumstances aid in the enforcement of slavery, we will have nothing to do with this nefarious and accursed thing," and adds:

"Let it always be remembered that the institution of slavery is contrary to the first principles of general public law, as taught by the greatest founders and expounders of jurisprudence. I refer to the maxims of the great masters of the Golden Age of Roman Law, that slavery is contrary to Natural Law ; that by Natural Law all men are free and equal, but that slavery was introduced as a general institution by the practice of nations. Slavery existed for the reason given by Grotius for the temporary existence of much International Law, 'quia placuit gentibus' because it pleased the nations]. But now we may say with honest pride that 'displicet gentibus' [it displeases the nations]. We may not be justified in using penal or coercive measures towards the miserable minority that yet adhere to it; but we are fully justified in declining to be their bailiffs or accomplices. The evidence collected by this Royal Commission shows conclusively the strong, the growing sentiments of civilized States that slavery is no longer to be upheld or enforced ; that when a slave gains access to a free country ' the air makes free,' and that the public ships of civilized nations will not give back the fugitive slave, who once has gained the shelter of the free flag, to punishment or to bondage.

"There is no need to prepare new forms of reply if demands for the surrender of such fugitives should again be made. We may appeal to and may adopt the noble words of our old sea-hero, Lord St. Vincent, when the Lords of the Admiralty in 1798 forwarded to him the complaints of some foreign slave-owners, whose slaves had obtained refuge on board of British men-of-war in the port of Malta, which then was foreign territory. Lord St. Vincent told the British Admiralty, 'that from the days of the renowned Blake to this hour it has been the pride and glory of the officers of His Majesty's navy to give freedom to slaves wherever they carried the British flag; and God forbid that such a Divine maxim should fade under me." (Quoted in report on Fugitive Slaves, appendix, p. 224, Creasy: First Platform of International Law, p. 696-7.)

⁹⁸ See dissenting opinion, Sir George Campbell, Royal Commission's Report on Fugitive Slaves, which we have given in the preceding note.

⁹⁹ This was in conformity with the above-quoted views of the majority of the Commission relative to the status of public vessels in foreign ports.

¹ The fifth recommendation of the report reads as follows:

"5. Respect for the local law ought not, however, to be carried to such an extent as to make British naval officers accessory to acts of cruelty ; and in cases in which they have reason to believe that such acts have been, or, unless protection is afforded him, probably will be, practiced upon a slave found on board their ships, or asking permission to come on board, they ought to be authorized to afford protection to the slave, although such conduct may be opposed to the theory of international law. A rigid adherence to that theory by the commanding officers of British ships in foreign territorial waters, in all cases whatever, would be neither practicable nor desirable."

² See separate opinion filed by the Lord Chief Justice and printed with the report.

³ A. E. Cockburn, T. D. Archibald, Alfred Hy. Thesiger, H. T. Holland, J. F. Stephen, H. C. Rothery.

⁴ [We have omitted from the text Section II of this separate statement of opinion which deals with the so-called extraterritorial rights of public vessels in foreign ports, but we include it in this footnote because of its juridical value.]

"II. In the foregoing remarks it has been assumed, -

"I. That a commanding officer on board his ship, even when she is lying within the territorial waters of a foreign State, is to be regarded, not as in subjection to the authority and laws of that state, but exclusively as a subject of his own Sovereign and an officer of his own government.

"2. That the laws of the foreign State cannot be forcibly executed on board unless by his order or permission as commanding officer.

"It is necessary to say a few words on these two assumptions, and in doing so to advert to the distinction between a ship owned by private persons and employed by them for purposes of trade or pleasure, and a ship commissioned by the State and employed in the public service. "A private vessel is not, according to the present practice of States, what a ship has been called by a great authority (Lord Stowell) 'a mere moveable. ' She is also a floating habitation, subject to the law and jurisdiction of the State under whose flag she sails, a jurisdiction which covers all persons on board, of whatever nationality, enjoying the protection of the flag, which follows her everywhere, and is not interrupted even when she is in the territorial waters of a foreign Power.[ Reg. v. Sattler, D. and B. C. C. 525; Keg. v. Anderson, 1 C. C. B. Law Rep., 161.]

According to French authorities and French practice, this jurisdiction is treated as exclusive in all such matters as do not affect the rights of persons not belonging to the ship, nor the peace and order of the port. But in all other matters, if not in these, it is universally admitted that the ship and all on board of her are amenable to the law of the country in whose waters she happens to be, although the question may arise (as it has lately arisen) whether that law ought to be held enforceable in the case of vessels navigating within the range of coast-water and not lying in port.

"A person therefore who enters a foreign port in a private ship becomes, while there, temporarily a subject of the foreign State, owing a 'local allegiance' to its laws, though he is also, when on board, subject to the jurisdiction of the country which extends to him the protection of its flag. He cannot therefore refuse to obey the local laws, for subjection to a law allows no discretionary choice between obeying and not obeying it. Nor can the claim of the local officers of justice to board the ship, search her, and take out of her anyone who has become amenable to those laws be disputed or resisted.

"Ships of war, on the other hand, have a recognised immunity, which places them, when within foreign waters, in a condition materially different from that of a private and uncommissioned vessel. So much as this is admitted on all hands. A long succession of writers, English, French, German, and American, referring to this immunity as established by usage and general consent, have described it as an exemption from the 'law,' the 'jurisdiction,' or the 'law and jurisdiction,' of the foreign State, or by other equivalent phrases; language which, though leaving somewhat to argument and inference, has nevertheless a plain and natural meaning. [Ortolan: Diplomatic de la Mer, L. II, ch. x, xiii; Heffter: Europäisches Volkerrect der Gegenwart, s. 79 ; Blüntschli : Droit International Codifié, art. 321; Calvo: Droit International, I, 383, 2nd Ed.; Twiss: Law of Nations, 1, 228; Woolsey: International Law, a. 54; Halleck: International Law, p. 171; Field: Draft Outlines of an International Code, art. 309. For the opinion of Kent, see Commentaries, 156 and note.] Some of these writers have been judges, some diplomatists, one an officer in the naval service of France, whose book has a deserved reputation for lucidity of statement as well as for sense and moderation. Whatever value we may be disposed to assign to testimony of this kind, it is, for the last half century at least, substantially unanimous. The general practice of Governments, and the general belief or impression current in every naval service, appear to have been in accordance with it. No one, it is true, disputes, or has disputed, the right of every sovereign State to exclude foreign ships of war altogether from its ports, or to attach such conditions as it may think expedient to the admission of them. During maritime wars very stringent conditions have been frequently imposed by neutral Powers on the admission of belligerent ships : for example, in the more recent of such wars, when ships of both belligerents have been in a British port at the same time, one has not been allowed to put to sea until after the lapse of twenty-four hours from the departure of the other. It need hardly be said that regulations as to mooring and anchoring, observance of sanitary precautions, and the like, are everywhere usual, though not everywhere the same. Nor has it been contended that a Sovereign, by permitting the entrance of a foreign vessel, abandons the right to repel or arrest by force, if need be, actual or threatened violence towards his subjects, or those under his protection; and this right has been occasionally exerted. But we do not know of an instance within this period in which a right has been conceded or asserted to take a person or thing from on board a ship of war by legal process without leave of the officer in command, or to hold the officer, or any of those under his command, personally amenable to the local jurisdiction for acts done on board in contravention of a local law. Nor are we aware that this state of things has pro-

duced any practical inconvenience.

"It has been suggested that, whilst the vessel herself as an object of property should be free from process, and the discipline of the ship as well as the cognizance of any offences which one member of the ship's company might commit against another should be left to her own authorities, no further exemption should be allowed. The condition of a man-of-war seeking the accommodation of a foreign port would then be not very different from that which the law of France assigns to a private vessel, except as regards the immunity from proceedings in rent. She would be liable to be boarded and searched by the local authorities : persons who had sought refuge in her either from slavery or from the rage of a victorious faction could be seized and carried ashore, even if they had come on board in a place out of the jurisdiction: the captain himself indeed might be taken from his own quarterdeck on a charge of having offended against some local regulation. A privilege so curtailed - if it be a privilege at all - appears to be but imperfectly adapted for securing to maritime Powers undivided control over their ships of war or for preventing hazardous conflicts of authority. But, whether expedient or not, it is certainly different from the understanding which we believe to exist universally at present, and on which naval officers and their Governments have thought themselves entitled to rely.

"This suggestion has been urged by two Italian jurists, Lampredi and Azuni. 'A nation,' says the former, 'which resolves to act vigorously will not make the least difference between a merchant vessel and a ship of war, whenever long custom or a privilege accorded has not established the contrary, and thus set a limit to the exercise of its sovereign rights.'[Del Commercio dei Popoli Neutral! in Tempo di Guerra, ch. x (published in 1788)]. But he admits himself to be in opposition to many writers, and his opinion does not appear to be shared by the present Italian Government.[Letter of the Italian Minister of Foreign Affairs in appendix [of the Report of the commission]].

"Lampredi, in the chapter referred to, asserts the positions that a ship at sea is to be regarded as a mere vehicle (vettura per mare), and two ships meeting one another at sea as vehicles meeting in an unoccupied desert ; and hence that the persons on board are not protected by the flag, but solely as individuals by the law of nature, which makes every man free and independent except in regard to his legitimate Sovereign. It is evident that according to these positions a slave, a refugee, a person liable to conscription or impressment, or any other subject, might be forcibly taken out of a foreign ship by the Power claiming him not only in territorial waters but on the high seas.

"A like limitation of the privilege is favored by Pinheiro Ferreira. But this author, an avowed theorist, maintains also (in his Annotations on Martens) that ambassadors should be deemed liable to criminal and civil process. It has some support likewise in a dictum of Mr. Justice Best in 'Forbes v. Cochrane,' and in the far greater authority of Lord Stowell.[Letter in Appendix [of the Report of the commission]].

It must be observed, however, that that whole subject of the national sovereignty over ships has undergone much discussion, not only since Lampredi but since the time of Lord Stowell; and that the effect of those discussions has been to carry the jurisdiction of a State over vessels entitled to use its flag to a more advanced point, and place it on a firmer basis, than it had reached in 1820.

"It may be that should the extent of the privilege ever be-come a question in courts of law, some qualifications of it might be allowed, the necessity or expediency of which there has not hitherto been occasion to consider. A concurrent jurisdiction might be held to exist for some purposes, as in matters of civil status. Courts of law are accustomed, in dealing with such questions, to proceed very much, as speculative writers do, on considerations of general convenience; and some questions might easily be suggested as to which it would be hazardous to predict what answer they would receive. But the matter referred to this Commission is one upon which any decisions that could be pronounced by courts of law could have but an indirect bearing. As between State and State, the right which every naval commander in foreign waters has hitherto believed himself to possess of saying, ' My ship is the castle of my sovereign under my command ; no one enters it, and no force can be exerted in it, unless by my permission; and for the orders I give here I am not amenable to any foreign jurisdiction,' appears to us to be sustained by usage and opinion, and, we may add, by convenience. The privilege of the ship is the privilege of the Power whose flag she displays and in whose service she is employed. And the responsibilities of the officer who in foreign waters acts in obedience to instructions, to the detriment (should this be so) of the foreign country or any of its people are assumed, and would be wholly borne, by the Government which instructed him."

⁵ Professor Moore discussing the question of the condition of the fugitive as a ground for refusing extradition, says: "This question frequently arose under the treaty of 1842, during the existence of slavery in the United States. Prior to the conclusion of that treaty, when at various periods the surrender of fugitive criminals was granted as an act of comity by Canada and by some of the States of the United States, the Canadian Government refused to recognize offences which grew out of the relation of master and slave. Thus, on July 21, 1829, Mr. Van Buren, then Secretary of State, wrote to Mr. Vaughan, British minister, stating that the governor of Illinois had transmitted evidence that one Paul Vallard had stolen a female mulatto slave and fled to Canada. Mr. Van Buren, while saying that he was aware that there was no ground in public law for a formal application, requested Mr. Vaughan to employ his good offices. Subsequently Mr. Vaughan replied, enclosing an extract from a report of the executive council of Lower Canada, which was as follows: ' In former cases the committee have acted upon the principle, which now seems to be generally understood, that, whenever a crime has been committed, and the perpetrator is punishable according to the lex loci [law of the locality] of the country in which it was committed, the country in which he is found may rightfully aid the police of the country against which the crime was committed in bringing the criminal to justice; and, upon this ground, have recommended that fugitives from the United States should be delivered up.' But (the report concluded) the offence must be one of those mala in se, universally admitted to be crimes in every nation. Canada did not recognize slavery. She did not admit that property could be had in a human being, and consequently could not give Vallard up, even if he were in Canada, which did not appear." (J. B. Moore : Extradition, Vol. 1, § 440, p. 671-2. Professor Moore refers to MSS. Notes, British Legation, Vol. 15. The case of John Anderson is discussed, Ibid, p. 672-4, and referred to, Ibid, pp. 637, 642, 647, 677.)

⁶ Copied verbatim from Stowell and Munro: International Cases, vol. I, p. 249-253. The account there Driven is based upon the documents given by Professor J. B. Moore (Digest of International Law, vol. II, p. 350-361). We have omitted quotation marks in order to avoid confusion.

⁷ Notwithstanding the deservedly high authority of Umpire Bates, we must question the correctness of the decision which he reached in this case. The defect in his reasoning was due to his failure to recognize that slavery was contrary to the law of nations. Holding a different opinion, as we have just seen, Umpire Bates declared that " ... slavery, however odious and contrary to the principles of justice and humanity, may be established by law in any country; and, having been so established in many countries, it cannot be contrary to the law of nations." Clarke, discussing this case, remarks: "The law authorities in England were unanimously of opinion upon this case that they [the slaves] could not be given up in the absence of an Act of the English Parliament giving power to the executive. "For this reason the extradition clause of the Ashburton treaty, which has already been quoted, while it took immediate effect in America and Canada, did not come into operation in England until August, 1843, when the Act 6 and 7 Viet., c. 76, was passed. Some objection was made to this Act in the House of Commons, where fears were expressed that advantage might be taken of the treaty to get back fugitive slaves on pretended charges of robbery. The Attorney-General (Sir F. Pollock), being appealed to on the subject, said that, upon a charge of crime being made against a fugitive, his personal status in the country from which he had fled would be wholly immaterial." (Sir Edward Clarke: The Law of Extradition, 3 ed., 1888, p. 125.)

This refusal of the amendment to exclude slaves from the operation of the act might perhaps be considered as a legislative interpretation of the law of nations, in which event, it might have been expected to have some influence in fixing the responsibility of the British Government in the case of the Creole.

⁸ In a letter to John Lothrop Motley, dated January 26, 1863, John Stuart Mill writes: "But a decided movement in your favor has begun among the public since it has been evident that your Government is really in earnest about getting rid of slavery. I have always said that it was ignorance, not ill-will which made the majority of the English public go wrong about this great matter. Difficult as it may well be for you to comprehend it, the English public were so ignorant of all the antecedents of the quarrel that they really believed what they were told, that slavery was not the ground, scarcely even the pretext, of the war. But now, when the public acts of your government have shown that now at least it aims at entire slave emancipation, that your victory means that, and your failure means the extinction of all present hope of it, many feel very differently. When you entered decidedly into this course, your detractors abused you more violently for doing it than they had before for not doing it, and the Times and Saturday Review began favoring us with the very arguments, and almost in the very language, which we used to hear from the West Indian slaveholders to prove slavery perfectly consistent with the Bible and with Christianity. This was too much : it overshot the mark. The Anti-Slavery feeling is now thoroughly rousing itself. Liverpool has led the way by a splendid meeting, of which the Times suppressed all mention, thus adding, according to its custom, to the political dishonesty a pecuniary fraud upon its subscribers. But you must have seen a report of this meeting ; you must have seen how Spence did his utmost, and how he was met ; and that the object was not merely a high demonstration, but the appointment of a committee to organize an action on the public mind. There are none like the Liverpool people for making an organization of that sort succeed if once they put their hands to it. The day when I read this I read in the same day's newspaper two speeches by Cabinet Ministers: one by Milner-Gibson, as thoroughly and openly with you as was consistent with the position of a Cabinet Minister; the other by the Duke of Argyll, a simple Anti-Slavery speech, denouncing the pro-slavery declaration of the southern bishops, but his delivering such a speech at that time and place has but one meaning. I do not know if you have seen Cairnes's Lecture, or whether you are aware that it has been taken up and largely circulated by religious societies, and is at its fourth edition. A new and enlarged edition of his great book is on the point of publication, and will, I have no doubt, be very widely read and powerfully influential." (The Letters of John Stuart Mill, edited by Hugh S. R. Elliot, vol. I, p. 277-9.)

⁹ Exactly what is meant by "innocent human life" does not appear from the correspondence, nor are we informed whether Mr. Williams considered that this designation would apply to and include the Empress Dowager.

¹⁰ The American Charge, in his dispatch of October 27 had reported as follows:

"Both Mexicans and foreigners have crowded this Embassy asking that I take some action with President Madero in behalf of Diaz, some insisting that he should not be executed; others that such execution be postponed. I have replied to one and all that the embassy could not under any circumstances take action or make representations, as his case was one of Mexican internal politics.

"Similar visits of committees from their colonies with petition to take some action for the sake of humanity have been received by the other members of the Diplomatic Corps, who have been much excited over the reported determination to execute Diaz. The wife of the Spanish Minister (acting Dean of the Diplomatic Corps), herself a Mexican by birth, went to see the Maderos, but was coldly received. The British Minister was very active for a time, saying that of course he could not act in the name of his government without instructions, but was acting for his colony. German and French Ministers will do nothing.

"Madero has made a speech, in reply to a manifestation, in which he concludes: 'General Diaz will be punished with all rigor. And I know very well that it is the wish of the nation that the blood of the guilty wash out the blood shed by General Diaz on June 25, 1879.' (Foreign Relations, 1912, p. 924.)

Relative to the occurrences of 1879, John W. Foster relates an interesting incident which took place at the time that he was minister to Mexico, during the interregnum before General Diaz arrived in Mexico City. Mr. Foster had invited members of the American Colony to the legation, and they came armed. Mr. Foster relates: "Our vigil passed with only two interruptions. A Senator called at an early hour to ask if he might become my temporary guest. He had been a champion in Congress of the Lerdo regime and showed much bitterness towards the Diaz movement, and feared that he might be exposed to insult, if not danger, from excited partisans of Diaz before order was established. He was my personal friend and I was glad to give him a room in my house. In the early hours of the morning General ---, a gallant old soldier, a former Minister of War, my near neighbor, for a similar reason also asked to become my guest, and brought with him his favorite war-horse, the companion of many campaigns, a noble animal. I gave the General my best chamber and quartered the charger in the Legation patio. My two distinguished guests remained with me for forty-eight hours only, but an amusing and somewhat embarrassing condition was developed. These two gentlemen, while both hostile to the Diaz movement, were bitter personal enemies, and could not be brought together at my table or in my family circle. So they were voluntary recluses in their own apartments during their stay. The practice of resort by public men to legation asylum is quite common in Latin-American States in time of disorder and revolution, but my experience in this instance was unique, in that the Legation at one and the same time afforded protection to public men, bank treasurers, and war-horses." (John W. Foster: Diplomatic Memoirs, vol. I, p. 81.)

¹¹ It will be noticed that Mr. Carr has dropped the limitation that the life saved should be "innocent."

¹² Millard's Review, in its number of August 21, 1920, discussing the Presidential Mandate for the arrest of the Anfu leaders, states that nine out of the 10 leaders were in the Japanese Legation at Peking, and quotes the French daily paper of Peking as having called the place in which they were living the "Hotel Obata." (Millard's Review, Aug. 21, 1920, p. 625.)

The same Review, in a later number, (September 18, 1920, page 112) carries a picture reproducing a cartoon by a Russian artist in Shanghai, showing the "Chinese Anfu 'traitors' in their present role as 'guests' of the Japanese Legation in Peking." Over this illustration, there is the title "Mr. Obata 's Anfu guests."

Japanese conduct is criticized in an article too long for us to quote in full. It is stated that Mr. Obata, Japanese Minister to China, having learned that the Minister of Foreign Affairs intended to ask for the extradition of the Anfu leaders on the ground that they were not political offenders, and that they had committed criminal offenses, sent to the Minister of Foreign Affairs, under date of August 27th, the following note:

"I have the honor to acknowledge the receipt of Your Excellency's note, dated August 22, replying to my note of August 9, on the subject of Mr. Hsu Shu-Cheng and others who are in the Imperial Legation Guard Compound.

"In that note it is stated that your government is unable to accede to the contents of my previous note and that you will make further communication to me based upon judicial evidences.

"I now have the honor to state in reply that in view of the facts that the Presidential Mandate looking to the arrest of the individuals in question was issued on political grounds, and that this legation is giving them refuge as political offenders, I shall not be in a position to comply with the request of extradition, irrespective of any criminal offences with which they may be charged." (Ibid, p. 112-113.)

¹³ For a concise account of this legislation, see Stowell and Munro: International Cases, vol. I, p. 439-445. We have borrowed a few extracts from this account.

¹⁴ From the testimony of the President of the American Seamen's Union, Mr. Andrew Furuseth, given before the Senate Committee, we take the following extract: "MR. FURUSETH. I want to call attention to this: That one of the things that was advocated by some of the members sitting on the commission of 1906, the report of which you have, was that the laws (British) governing English seamen should be made applicable to foreign vessels.

"SENATOR BURTON. I noticed that. They would not agree with the conclusions unless they were made applicable to foreign ships.

"MR. FURUSETH. Exactly. As a matter of fact, the laws dealing with deck load, the laws dealing with freeboard, the laws dealing with everything that has to do with safety of life among passengers, and . . . among the employees, . . . apply to foreign seamen in foreign vessels while in English ports. Thus, if an American vessel is lying in a port of England and one man gets hurt, he can sue the American vessel in the English court under the British compensation act now, . . . and Parliament gave to the board of trade definite authority to detain vessels that were undermanned or unseaworthy by reason of being undermanned, and they exercise that authority not only over native vessels, English vessels, but they exercise it over foreign vessels . . . Here is a circular issued by the board of trade to the boarding officers, giving them instructions how the vessels must be manned as a minimum." (Synopsis of Hearing before the Subcommittee of the Committee of Commerce of the Senate relative to involuntary servitude imposed upon seamen, p. 43.)

¹⁵ See Moore's Digest, vol. IV, § 622, p. 417f.

¹⁶ Congress, by the Act of December 2, 1898, repealed the law that authorized the arrest of deserters from vessels of the United States in the ports of the country. (Moore's Digest, vol. II, p. 418.)

¹⁷ It has been stated that President Wilson's objection was based upon the ground that it was not competent for Congress to advise the executive to give notice of the abrogation of separate articles of a treaty.

¹⁸ In an interview which I had Mr. Andrew Furuseth, relative to the purpose of this legislation which he had been so instrumental in securing, the President of the American Seamen's Union repudiated absolutely any belief in the right of a state under international law to intervene in the affairs of another. It was his opinion, based evidently upon a wide reading and study of the authorities, that every state has within its own jurisdiction, including therein its ports and harbors, the right by virtue of its sovereignty to impose whatever regulations it may judge best, except in so far as this liberty of action may have been restricted by treaties. This was the opinion expressed by Chief Justice Marshall in the case of The Exchange (7 Cranch, 136), in which he said :

"The jurisdiction of the nation is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source." ( Quoted in Moore 's Digest of International Law, vol. II, p. 308.)

Nevertheless, I have no doubt that humanitarian intervention will later be appealed to by organizations similar to the Seamen's Union when they perceive that the doctrine that every state may do what it chooses in its own territory can no longer be maintained. The theory of absolute sovereignty is refuted by the statement of Mr. Root, in the Proceedings of the American Society of International Law of April 27, 1918, p. 18-19. Cf. also discussion above under § 7 and below under § 9. Some other indications of this principle of the limitation which international law laces upon sovereignty in this matter of the jurisdiction over shipping will be found in Moore's Digest of International Law, vol. II, p. 273, 274, 277, 287, 290, 295, 353-4. The exemption from the local law of vessels that are driven into foreign ports by distress is another limitation which international law places upon the absolute control of the sovereign. (See Moore's Digest, vol. II, 208, p. 339f.)

¹⁹ It may be argued that the extradition and delivery of seamen is, in the United States, based upon treaty stipulations, but even so, the generally recognized obligation of cooperation for the delivery of deserting seamen, and the difficulties which a refusal of this cooperation will cause, might be said to lay upon the United States the obligation to fulfill this duty by negotiating treaties containing the appropriate provisions.

²⁰ The provisions of the Act of June 26, 1884, which prohibited the prepayment of seamen hired in American ports was applied to foreign vessels. This was evidently a proper matter for the local authority to regulate, and did not control the foreign vessel when without the port and jurisdiction of the United States. (See Moore's Digest of International Law, vol. II, p. 307-310.)

In the case of the Strathearn Steamship Company, Limited, v. Dillon, (252 U. S. ; printed in American Journal of International Law, July, 1921), the Supreme Court of the United States upheld the constitutionality of section 4 of the Seamen 's Act of March 4, 1915. Mr. Justice Day, speaking for the court, said in the course of his opinion delivered March 29, 1920: "Upon the authority of that case [Patterson v. Bark Eudora, 190 U. S. 169], and others cited in the opinion therein, we have no doubt as to the authority of Congress to pass a statute of this sort, applicable to foreign vessels in our ports and controlling the employment and payment of seamen as a condition of the right of such foreign vessels to enter and use the ports of the United States."

²¹ The distinct question of the right to police marginal waters beyond the three-mile limit when necessary to prevent smuggling is involved in the recent (Aug. 1, 1921), seizure of the British schooner, the Henry L. Marshall, outside the three mile limit in the vicinity of Atlantic City.

This schooner, according to the account in the New York Times, Aug 3, 1921, made a practice of lying outside the three mile limit and selling liquor to purchasers who came out in motor boats. The captain, Eris Anderson, was reported as having boasted that "these Federal men can 't do anything to me but make it uncomfortable." Captain Anderson was also quoted "as having admitted making a prior trip to Montauk Point with a cargo of liquor. On this trip he had 2,000 cases of liquor he was said to have sold to visitors."

According to the Times, Assistant United States District Attorney Clark said:

"It is our position that we have a right to seize a vessel outside of the three-mile limit if there is evidence of a conspiracy to violate our customs laws and the Volstead act. While the actual sale of liquor outside of the three-mile limit is not in itself illegal, yet if it can be shown that persons from this country go out there to buy contraband then conspiracy has been established."

The New York Times of August 5, gives further particulars and states that the members of the crew of the Marshall were held in $5,000 bail.

²² The various kinds of action which are in the nature of international police, or closely related to it may be classed as follows :

(1) Action undertaken to compel the observance of the law of nations. It is in this sense that we have used International Police as the heading of this chapter. (For the use of police in this sense see Westlake : Vol. I, p. 317.)

(2) Action undertaken to prevent the violation by a state of the law when such an occurrence seems likely, especially when the penalties imposed after the commission of the offense are inadequate to protect the interests of society. This is really an extraordinary procedure for the enforcement of the law, just as in our municipal law we have injunction to prevent the violation of the law when the court believes that the ordinary remedial processes are inadequate. Hall (International Law, 4th ed., § 95, p. 309 note) calls this "preventive interference."

(3) "International Police Regulation," which is closely related to the power of prevention and to every exercise of a police power, is the action of making and enforcing regulations necessary to prevent future violations. The publication of such regulations gives to all due notice and thereby tends to reduce the inconvenience and arbitrary character of the force which it may subsequently be necessary to employ.

(4) "Police patrol" or "international police patrol" is the preventive action which one or more states take to forestall and effectively to punish violations of international law by individuals. Such, for example, are the fisheries police of the North Sea (see Paul S. Reinsch: Public International Unions: Ginn and Co., Boston, 1911, p. 62); the protection of the submarine cables (Ibid., p. 63); African Slave Trade and Liquor Traffic (Ibid., p. 64); the repression of the white slave trade (Ibid., p. 64); the South American police convention (Ibid., p. 66).

(5) Action for the purpose of restricting the exercise by a state of certain of the rights it ordinarily enjoys when such liberty is considered dangerous to the safety of all the states. This last is perhaps the most characteristic form of the exercise of police power and is the action in international relations with which we are in this section principally concerned. When necessary to the safety of all the states, the exercise of police power justifies the curtailment or even denial of any of the rights of a state and its citizens, and in theory would go even to the limit of justifying the annihilation of a community, if such extreme action could be shown to be the only means to preserve international society. The exercise of this police power is in practice very closely associated with the ordinance power above referred to as police regulation, and for this reason we employ the more usual term of International Police Regulation for our section heading instead of International Police Restriction.

In our municipal [national] law, "police" is often used to designate the minor matters which are left to lesser, i.e., "police officials." In this sense, we have "police ordinances" and "powers of police." But even in this field, we perceive the essential or underlying idea of a power which cannot be completely regulated and provided for in advance by the superior authorities.

^22a The executive action of the great powers in concert or acting separately within a particular region or sphere of influence is more fully discussed in the following section. (§ 10).

²³ The English translation is: "And this decision is just, as the welfare of the State demands that no one should make a bad use of his own." (Institutions of Gaius and Justinian, translated by T. Lambert Means, London, 1882, p. 269.)

Cf. works of Edmund Burke, Boston, Little, Brown and Co., 1894, Vol. 5, p. 321-322, Letters on a Regicide Peace, Letter I. See also Hall : International Law, 4th ed., § 95, p. 309 note.

^23a lt is the purpose of intervention to vindicate the rights of the other states when any state takes advantage of its independence to use its rights in an abusive manner, that is without regard to the interests of its neighbors. The situation when the abusive action endangers a particular state is discussed below under 16, Self-Preservation. We are here concerned only with abuses which injuriously affect all of the states. Grotius shows in many of the passages we quote in this section and elsewhere (see § 7) that he always placed the rights and interests of international society above those of states considered separately.

The judicious Hooker writing about 1592 set forth in a remarkable passage the supremacy of international law:

"Now, besides that law which simply concerneth men, as men, and that which belongeth unto them as they are linked with others in some sort of Politique Society, there is a third kinde of law which toucheth all such several bodies Politique, so far forth as one of them hath publique commerce with another. And this third is the Law of Nations.... The strength and vertue of that law is such, that no particular nation can lawfully prejudice the same by any their several laws and ordinances, more than a man by his private resolutions the law of the whole Commonwealth or State wherein he liveth. For as civil law, being the act of the whole body Politique, doth therefore over-rule each several part of the same body; so there is no reason that any one Commonwealth of itself should, to the prejudice of another, annihilate that whereupon the whole world hath agreed." (Eccl. Policy, 1, 10, as quoted by Professor J. S. Reeves in American Journal of International Law, July, 1921, Vol. 15, p. 365.)

Günther, one of the founders of the positive system of international law, writes: "The closer union in which the European nations stand today, for they may certainly be considered as members of a great and equal society especially in matters which concern the common interests makes it necessary in accordance with the fundamental principles of international law (Freiwilligen Völkerrecht) that each nation in its conduct observe its obligation to international society and refrain from using the liberty it enjoys therein in such a manner as obviously to disturb the peace and security of this great society, or to give the other members any reasonable ground for mistrust or apprehension." (Günther: Volkerrecht Vol. I, 1787, p. 282; cf. ibid, p. 295-6.) When two or more nations engaged in war violate the fundamental rules recognized by international law as governing the conduct of hostilities, there is, as we have seen above (§ 7), a just ground for intervention to vindicate the law of nations. And again, when the manner of conducting a civil war is so barbarous as to shock neighboring nations and to serve as a reproach to civilization, third states have, as we have also seen (§ 8, c,), a right of intervention upon the ground of humanity. There is, however, still another ground of action, namely: when an unnecessary war between two independent states or a civil war unreasonably prolonged threatens the peace and security of international society, such conduct on the part of the warring states may rightfully be regarded as an instance of the abusive use of their liberty and their sovereignty. In accordance with the practice of states, the danger which such an abusive action causes to the security of states is sufficient justification for intervention.

Karl Heller (Die Frage der Zulässigkeit der Volkerrechtlichen Intervention, 1915, p. 6) says that Glafey is the first to observe that "when the warring parties welter in blood without end a third may intervene with arms and attempt to impose peace by force." (Ad. F. Glafey: Recht der Vernunft, 1739, Bk. 6, Chap. I, p. 97.)

Professor Kebedgy recognizes the justification of such intervention to prevent any state from using its sovereignty in a manner so abusive as to endanger the security of the other states. Quoting Professor Arntz' letter to Rolin Jaequemyns (revue de droit international et de legislation comparée, Vol. 8, 1876, p. 674) he gives as an illustration the case of a state which possessed of the monopoly of a sovereign remedy against a widespread malady should refuse to allow the drug to be exported for the benefit of other nations (Kebedgy: Intervention, p. 86).

²⁴ The action of the powers to compel Holland to desist, when she was at the point of subjugating the revolting Belgian Provinces, was a curtailment of the sovereign right of the Netherlands to settle its own internal affairs. Assuredly there never was a greater abuse of force than that employed by France and England to compel the Dutch to submit unless the coercive measures were justified by the superior needs of European peace. The moment was a critical one and the intervention was successful in preserving Europe from another general war which was seriously threatened. Upon this ground the action of the European concert has generally been justified (see

Pitt Cobbett : Cases on International Law, 3 ed., Vol. I, p. 347-8; cf . Rossi's remarkable analysis of the principles applicable to this instance in Archives de droit et de legislation, Brussels, Vol. 1, 1837, p. 369-70) . In the protocol of February 19, 1831, the great powers assembled in conference at London, formulated the principle which was the justification of their united action: "Every nation" declares the protocol "has its separate rights, but Europe also has rights given her for the maintenance of the peace and order of society." (Translated from LeClerq: Traités de la France, Vol. 4, p. 15. The French original reads: "Chaque nation a ses droits particuliers ; mais 1'Europe aussi a son droit; cést 1'ordre social qui le lui a donné.")

Professor J. B. Moore gives the following brief account pf the protest of Great Britain and France at the blocking of Charleston harbor. Although Secretary Seward wrote Minister Dayton: "In making these explanations, I must not be understood as conceding to foreign states a right to demand them" (Diplomatic Correspondence, 1862, p. 316), it might be considered that by making explanations he did, in fact, to some extent at least, concede the right. Professor Moore

Writes:

"February 14, 1862, Lord Stanhope, in the House of Lords, called attention to the report that a second squadron of ships laden with stone was about to be sunk by the United States in Maffit's channel at Charlestown, South Carolina. He observed that the sinking of large ships laden with stone on banks of mud at the entrance of a harbor could only end in its permanent destruction and was not justified by the laws of war, and declared that the British Government was well entitled to protest against the act. Earl Russell replied that he considered the destruction of commercial harbors a most barbarous act, that the French Government took the same view, and that they had decided to remonstrate with the Government of the United States. On February 28, Earl Russell stated that he had received a dispatch from Lord Lyons to the effect that Mr. Seward had stated that there had not been a complete filling up of Charleston Harbor and that no more stones would be sunk there.

"The subject had been discussed between Mr. Seward and Lord Lyons, and Mr. Seward had made explanations to the effect that artificial obstructions in the channels of rivers leading to ports had been regarded as an ordinary military appliance of war; that it was not conceived that such obstructions could not be removed ; and, that, upon the termination of the war, there would be cast upon the Government the responsibility of improving the harbors of all the States. After these explanations were given, Mr. Seward ascertained and stated that between the channels at Charleston which had been obstructed there still remained two the Swash channel and a part of Maffit's channel neither of which had been nor was intended to be artificially obstructed and which were to be guarded by the blockading naval forces. Mr. Seward observed that, in making these explanations he was not to be understood as conceding to foreign states a right to demand them. They were accepted by the French, as well as by the British Government." (Moore's Digest of International Law, Vol. 7, p. 855-6, § 1286, Professor Moore gives references to authorities and to other instances in which the question of the right to obstruct channels has arisen.)

For the discussion of the justification of intervention to preserve the Balance of Power on the ground of the right of the society of states to curtail the rights of the separate states for the preservation of peace, see discussion in § 17; cf . also Günther: Volkerrecht, Vol. I, p. 333, 58, 359-60; cf . ibid p. 298; Gentz, Fragmente aus der neusten Geschichte des Politischen Gleichgewicht in Europa. St. Petersburg, 1806.

Kamptz in his partisan effort to sustain the right of the Holy Alliance to interfere in the internal affairs of the states of Europe for the purpose of preventing constitutional changes by means of a revolution takes the ground that they have the right to prevent changes which endanger "the peace and security of the community of European states or the well recognized rights of other states" (Volkerrechtlicher Erorterung des Rechts der Europaischen Machte in die Verfassung eines Einzelnen Staats sich zu mischen, Preface p. VII). A little further along he declares such action to be "as necessary and beneficial for the great community of states as is police in each separate state" (Ibid p. VIII-IX).

The erroneous conclusions which Kamptz draws and the abusive application of this principle by the Holy Alliance in no way affects the correctness of the principle. It does, however, indicate the danger of abuse which is inherent in it.

²⁵ We must agree that Dr. Angell 's criticism of Hall is well founded, but since Hall 's remarks were mainly intended to apply to humanitarian intervention we have discussed his statement in a footnote of the preceding section (§ 8).

²⁶ "By the rules of right and justice universally recognized among men and which are the law of nations, the sovereignty of Colombia over the Isthmus of Panama was qualified and limited by the right of the other civilized nations of the earth to have the canal constructed across the Isthmus and to have it maintained for their free and unobstructed passage." (Extract from address by Hon. Elihu Root on "The Ethics of the Panama Question" before the Union League Club of Chicago, Feb. 22, 1904, printed in Senate Document, 471, 63rd Congress, 2nd Session, p. 39.)

This obligation is based upon the fundamental principle that all of the nations are required to cooperate for the purpose of facilitating international commerce. This was the principle which justified the United States and the other powers in forcing their way into Japan and in compelling her to negotiate and sign treaties providing for commercial relations. The right to use international rivers which pass through another state rests upon the same basis. ( Cf . Woolsey: International Law, 6th ed., § 62, p. 79-83.)

Grotius clearly recognizes the right to use the territory of another state. He justifies the right of transit for the purpose of traffic with a remote nation, or in the prosecution of a just war. "The reason," he says, "is the same as above; that ownership might be introduced with the reservation of such a use, which is of great advantage to the one party and of no disadvantage to the other; and the authors of ownership are to be supposed to have intended this." (Grotius, Bk. II, ch. II, XIII, § 1, Whewell's translation, vol. I, p. 243; cf. also Vattel, Bk. II, § 123, Carnegie translation, p. 150.) Whewell states: "Gronovius in a long note gives very strong reasons why this right of transit cannot be held, and cases in which it has been negatived. "But this objection really applies only to warlike transit, which is now recognized as a violation of neutrality. At the time when Grotius wrote, military transit was recognized and was a good example of the limitation of sovereign right for the benefit of what was then considered the interest of all the states. The principle upon which Grotius then based the right of military transit has not disappeared because this particular application has become antiquated. In the same chapter Grotius sets forth his theory of the common right which all men have in property which has become private. Even those who do not accept this theory in its entirety will find it a valuable argument in the support of the superior right of the community over the property held by the separate members. (Bk. II, ch. II, I to XI, Whewell's Translation, vol. I, p. 237-240.)

The United States was justified in intervening to secure the abolition of the Danish Sound Dues. ( See Woolsey : International Law, 6th ed., p. 77-8.) This is a good example of the principle, even though the Danish vested interests were recognized and purchased in the form of a payment, in return for which Denmark was obligated to maintain the necessary lighthouses, etc.

²⁷ For an extremely able and thorough discussion of the Treaty of 1846, and Article 35, which contains the provisions relative to the guaranty of transit, see William C. Dennis: The Panama Situation in the Light of International Law, in American Law Register (Published by the Department of Law, University of Pennsylvania), vol. 52, May, 1904, p. 265-306. Cf. Travers Twiss: The Law of Nations, Vol. I, § 231, p. 367-379, where the nature of a treaty of guarantee is considered.

²⁸ The effects of this supervision are considered in the following section. The diplomatic correspondence relative to the Isthmus shows the nature of the American supervision. The United States had assumed, with the acquiescence of Colombia, onerous obligations for the police of the territory in question and in so doing, the United States was fulfilling obligations which were Colombia's, but from which Colombia was in a certain measure excused by her weakness. This police, or supervisory power, over the Isthmus for the purposes of international commerce gave to any action to facilitate this commerce (as the building of the Canal) the benefit of a prima facie presumption that it was justifiable. Another power, intervening for the same laudable purpose, would not have been entitled to this same presumption.

²⁹ It would seem that this wide-spread opinion is based in part upon Roosevelt 's statement in his speech to the students of the University of California, at Berkeley, Cal., March 23, 1911: "I am interested in the Panama Canal because I started it. If I had followed traditional conservative methods I should have submitted a dignified state paper of probably two hundred pages to the Congress and the debate would have been going on yet. But I took the canal zone, and let Congress debate, and while the debate goes on the canal does also."

In his Autobiography Roosevelt has described his conduct more fully and exactly: "From the beginning to the end our course with Colombia was straightforward and in absolute accord with the highest standards of international morality. Criticism of it can come only from misinformation, or else from sentimentality which represents both mental weakness and a moral twist. To have acted otherwise than I did would have been on my part betrayal of the interests of the United States, indifference to the interests of Panama, and recreancy to the interests of the world at large. Colombia had forfeited every claim to consideration; indeed, this is not stating the case strongly enough; she had so acted that yielding to her would have meant on our part that culpable form of weakness which stands on a level with wickedness. As for me personally, if I had hesitated to act and had not in advance discounted the clamor of those Americans who have made a fetish of disloyalty to their country, I should have esteemed myself as deserving a place in Dante's Inferno beside the faint-hearted cleric who was guilty of "il gran rifiuto." ( Extract from the Autobiography of Theodore Roosevelt and printed in Senate Document No. 471, 63rd Congress, 2nd Session, p. 61.)

³⁰ Senator Cullom relates how President Roosevelt sent for Senator Hoar when he was present to discuss with him the question of the Panama Canal.

"The President wanted the Senator to read a message which he had already prepared in reference to Colombia's action in rejecting the treaty and the canal in general; which message showed clearly that the President had never contemplated the secession of Panama, and was considering different methods in order to obtain the right of way across the Isthmus from Colombia, fully expecting to deal only with the Colombian Government on the subject. The President was sitting on the table, first at one side of Senator Hoar, and then on the other, talking in his usual vigorous fashion, trying to get the Senator's attention to the message. Senator Hoar seemed adverse to reading it, but finally sat down, and without seeming to pay any particular attention to what he was perusing, he remained for a minute or two, then arose and said:

" 'I hope I may never live to see the day when the interests of my country are placed above its honor.' He at once retired from the room without uttering another word, proceeding to the Capitol.

"Later in the morning he came to me with a typewritten paper containing the conversation between the President and himself, and asked me to certify to its correctness. I took the paper and read it over, and as it seemed to be correct, as I remembered the conversation, I wrote my name on the bottom of it. I have never seen or heard of the paper since." (Cullom, Shelby M.: Fifty Years of Public Service, p. 212-213.)

³¹ The apparently equitable basis upon which one opinion in support of the treaty rests, is that the United States should not by the exercise of force directly, or by indirection, gain at the expense of Colombia. But Colombia rejected the basis of reasonable compensation, and it may well be questioned whether other obstreperous states should be encouraged in an unreasonable resistance to action for the common good, as they would be if they could in last analysis rely upon the power that had been resisted to make good the cost. Such a practice would not tend to support and develop the settlement of international controversies upon the basis of juridical principles.

³² No entirely satisfactory term can be found to express the relationship considered in this section. Various words have been employed, such as "hegemony," "primacy," "police jurisdiction" (Bernard: Non-intervention, p. 24), "tutelage ibid, p. 8; cf. Moore: Asylum in Legations, Political Science Quarterly, Vol. 7 (1892) p. 16), "surveillance" (A. H. Snow: The Question of Aborigines in the Law and Practice of Nations, p. 21, 27), "next friend," "international patron" (ibid, p. § 21), "international guardianship" (ibid, p. 21). "Client State" (Lawrence: Principles, 4th ed., § 39, p. 66, § 64, p. 126). Professor Bernard well depicts this condition of statehood: "All men are not in fact completely free, nor are all states completely sovereign. There may be states in name, which are not such in reality Governments which labor under an incurable incapacity to govern, and which a makeshift policy keeps alive under an irregular and capricious tutelage, in order to avoid, on the one hand, the embarrassments which would be occasioned by their fall, and to prevent, on the other, as far as possible, (for such, efforts often come too late,) atrocious barbarities and gross oppressions. To such cases the principle does not apply, and the hopeless infirmity which makes interference necessary is an evil that we have to deal with in the best way we can. Again, there is the anomalous thing called a 'Protected State' a relation which almost necessarily involves more or less of falsehood, in which you have on the one side a galling or corrupting dependence, and, on the other, power without definite responsibility and responsibilities without effective control." (Mountague Bernard: The Principles of non-intervention (1860), p. 7-8); Westlake's (International Law, 1:121-144) study of "Colonial Protectorates" and ''Spheres of Influence" is also of interest. "Supervision" seemed on the whole to best express the relationship. I have recently been gratified to find that the late Alpheus H. Snow used this same designation in the project of a code of the Law of Nations published in the proceedings of the American Society of International Law (1911, p. 330).

³³ This process recalls the beneficium and commendatio of the feudal system.

³⁴ For a short account of the Monroe Doctrine brought up to date, see John Bassett Moore: Principle of American Diplomacy, p. 238-269 ; Bibliography, p. 268. Professor Moore says (ibid, p. 258-9), "The 'Monroe Doctrine' has in reality become a convenient title by which is denoted a principle that doubtless would have been wrought out if the message of 1823 had never been written the principle of the limitation of European power and influence in the Western Hemisphere."

The void filled by this limitation on Europe is filled by the counterbalancing hegemony of the United States. A study of the history of American Diplomacy indicates that there has been a tendency on the part of the United States to use this paramount position to protect the weaker and more backward American States from European dictation and all coercion above and beyond what was reasonable to obtain redress. Even when measures of force have been reasonably employed, the satisfaction exacted has not been allowed to include the cession of territory or the establishment of a supervision over the finances or other internal affairs of the delinquent state. In place thereof, the United States exerts itself to arrange a satisfactory settlement without, nevertheless, assuming or shouldering the responsibility by guaranteeing the payment. In a less conspicuous manner, this government has exercised diplomatic pressure to prevent wars and restrict the revengeful acts of warring factions. As regards territory in proximity to its frontiers or to the Canal (perhaps also all American territory), the United States is understood to prohibit even a voluntary transfer to any European country. This perhaps affords the clearest evidence of the regional control of the United States. Professor Moore, in the work above referred to, and in his "Digest of International Law," supplies the evidence in support of these assertions. More recently, President Wilson's administration has extended the scope of this regional control so as to forbid the establishment of new governments by crimes and in violation of constitutional principles, notably in the case of Huerta (see Moore: Principles of American Diplomacy, p. 217-225) and still more recently in that of the Tinoco Government in Costa Rica. (See World, August 3, 1920.) Whatever difference of opinion may exist as to the justification and wisdom of this policy, its effect to bring the states in question more closely under the supervisory control of the United States can hardly be questioned.

The relation of the United States to the little African Republic of Liberia is described by Alpheus H. Snow in his scholarly consideration of "The Question of Aborigines in the Law and Practice of Nations" (Government Printing Office, Washington, 1919, p. 21): "The American negro settlements on the west coast of Africa maintained a precarious existence and an indefinite international status. They resembled colonies of the United States to some extent, but the United States, on account of the Monroe doctrine, denied itself sovereignty over them, and asserted their independence under its patronage. Their international independence was at last recognized and the State of Liberia came into existence. The United States has stood in the position of 'next friend,' or international patron, disclaiming sovereignty or control of any kind, but holding itself morally obligated to use its good offices on behalf of Liberia in all international complications. It has thus maintained a species of international guardianship - a benevolent surveillance without claim of sovereignty or responsibility.

Professor Delbrück, discussing President Wilson's intervention policy in Mexico, said in the course of an interview (New York Sun, Nov. 9, 1913): "Other questions, however, are involved. Who gave the United States the overlordship of the Western Hemisphere? By what right, moral or otherwise, does the United States interfere in Mexico and dictate who is to be President? No right exists. There is no question but might, which is not changed by the fact that the people themselves and civilization in general probably will be served thereby."

Prof. Hershey (Essentials of International Law, 142, p. 152-3) discusses "The Primacy of the United States in America." He considers that "it is a primacy essentially political in its nature, which has no legal basis whatsoever, but rests upon certain maxims enumerated by the fathers of the Republic, and applied by American statesmen."

Bertrand Russell (Why Men Fight, p. 108) says: "The South American Republics are sovereign for all purposes except their relations with Europe, in regard to which they are subject to the United States: in dealings with Europe, the army and navy of the United States are their army and navy."

An English writer expresses the following opinion: "The Monroe Doctrine is nothing more than the expansion of the natural sense of guardianship felt by the United States as the predominant power in that part of the world for the minor states whose institutions are more or less modelled on their own, which is aroused when a likelihood arises of interference with their liberty or institutions on the part of a foreign power." (F. W. Payn: Cromwell on Foreign Affairs, p. 85.)

In his remarkable study of this relationship between states in different stages of political and social development, Alpheus H. Snow (Question of Aborigines in the Law and Practice of Nations, p. 196) considers that the trusteeship of the superior state "... is for conservation and elevation of status. A conservator or guardian can find in the private law no warrant for altering for the worse the social status of the incompetent person or the ward. His duty is to alter it, if possible, for the better.

"When the United States extended its sovereignty over Cuba, the Philippines, and Porto Rico, as the result of the Spanish War, the public sentiment was strongly against 'imperialism' and in favor of the doctrine that 'the Constitution follows the flag.' In developing a conception of the law of nations which should take account of this public sentiment the American Government based itself upon the conception of a trusteeship implied in sovereignty. By recognizing this trusteeship under the law of nations, through acts of the government declaratory of the trust, the relationship between the United States and the countries to which its sovereignty was extended was established as being social and not imperial, and the spirit of the Constitution was made to follow the flag and to permeate the spirit of the peoples within whose territories the flag had been raised by the power of the United States in conformity with the existing law of nations.

"In a campaign speech (New York Herald, Aug. 29, 1920) President Harding, inveighing against what he considered the abuse of this power, said: "Nor will I misuse the powers of the Executive to cover with a veil of secrecy repeated acts of unwarrantable interference in domestic affairs of the little republics of the western hemisphere, such as in the past few years have not only made enemies of those who should be our friends, but have rightfully discredited our country as their trusted neighbor."

"The following extract is from a letter of Hon. E. J. Phelps, written at the time of our intervention in Cuba: "The idea that this country, or any other, is justified in undertaking a moral or political supervision over the affairs of its neighbors, and in correcting by armed invasion the faults of their institutions or the mistakes of their administration, or administering charity to them by force, is absolutely inadmissible and infinitely mischievous." (E. J. Phelps, Letter in New York Herald, March 29, 1898.)

Lord Eustace Percy, one of the ablest of the younger British diplomatists, stationed several years at Washington, discusses with a frankness which gives added value to his remarks the relations of the United States to her weaker neighbors: "In the last few years the United States has been driven into a policy of expansion in Nicaragua, in Haiti, and in Santo Domingo ; but her motives have been, not financial, but strategic and humanitarian. From the strategic point of view she cannot tolerate chronic misgovernment in any of the states lying within and on the flank of the 'south coast line' to which she has now pushed forward her strategic frontier - the line through the Caribbean from Cuba to Colon and Panama. And even if it had been possible on grounds of expediency to ignore such misgovernment, the humanitarian attitude which has been her boast would have made inaction impossible.

"The Nicaraguan policy of the United States displays the same features as her Cuban record. She has exerted her influence, has intervened, has withdrawn has, in short done everything but assume direct and permanent responsibilities. She aided and abetted the expulsion from Nicaragua of the dictator Zelaya; she then, in 1910, went very near intervention for the overthrow of Madriz, whom she regarded as Zelaya 's legatee, and when the expulsion of that gentleman failed to lead to a restoration of stable government, she actually intervened in 912, and sent marines to Managua. The opposition of the Senate defeated President Taft's first attempt to deal with Nicaragua as his predecessor had dealt with Santo Domingo and President Wilson found at the outset of his administration that he was responsible for a Nicaraguan government placed in power by American bayonets, but with no means of controlling or maintaining it. This,

indeed, is still the position at the present day. The United States has recently gone so far as to conclude an agreement with the Nicaraguan Government by which she acquires a naval base in the Bay of Fonseca, an option on the construction of any inter-oceanic canal across Nicaraguan territory, and a measure of control over Nicaraguan finances. There, however, she has stopped. She has not taken over the foreign relations of Nicaragua and has done little to regularise the relations of this small republic either with the outside world or with its Central American neighbors." (Lord Eustace Percy: The Responsibilities of the League, p. 90-92. Hodder and Stoughton, London, 1919.)

A few pages further on, Lord Eustace writes:

"The United States has therefore responsibilities for Cuba. Foreign nations can call on her to secure their just rights in the island. Cuba is made a sort of dependency of the United States, and the United States has shown that she is fully alive to considerations of what may be called strategic imperialism, by acquiring naval stations on the shores of Cuba at Guantanamo and Bahia Honda.

"Moreover, the Platt amendment has not remained a dead letter. In 1906, the United States made use of her powers under Clause 3 by occupying the island and she remained there for three years. During this second occupation she went considerably deeper in laying the foundations of government than she had first attempted to do. The whole of Cuban law underwent a radical revision, and when the second evacuation took place in 1909, Americans had become much more

keenly conscious how serious was the task of securing good government for the people they had freed. Many people conversant with Cuban conditions thought the evacuation premature, and experience has more or less borne out their apprehensions. Till 1913 the government of Cuba remained thoroughly bad. Public opinion in the United States became increasingly convinced, especially during the negro risings of 1912, that a third occupation would be necessary. An improvement has taken place since the election of President Menocal in 1913, but a serious doubt has grown up in the mind of thoughtful Americans whether their policy is really adequate. Cuba is a ward, she is not wholly and solely responsible for her own actions, she has recognized the United States as her guardian. But this guardianship is only potential. In ordinary times it is in abeyance, and takes no stronger reform [a form] than that of diplomatic lectures." (Ibid, p. 85-7.) Professor Moore has given a brief and clear account of the relations between the United States and the republics to the south of us. ( J. B. Moore : Principles of American Diplomacy, p. 400-408; cf. also Dickinson: The Equality of States, 1920, p. 246-7.)

In the ancient Hindu philosophy, we find an interesting statement of the objections incident to political control of one state by another. Benoy Kinnar Sarkar, in his article discussing the doctrine of Mandala (American Political Science Review, August, 1919, p. 400) quotes Shookra to the effect that "Great misery comes of dependence on others. There is no greater happiness than that from self rule," and Kautila's remark on "Foreign rule" to the effect that such a "country

is not treated as one's own land, it is impoverished, its wealth carried off, or it is treated as a 'commercial article.' " Mr. Sarkar remarks that this description recalls John Stuart Mill's metaphor of the "cattle farm" applied to the "government of one people by another."

³⁵ See Stowell's Diplomacy of the War of 1914, p. 497-502. Palmerston in a letter to Lord John Russell, Aug. 9, 1847, frankly states the true status of Portugal and the reason why its separate existence has been preserved. He writes, "….. and it is only by maintaining Portugal in its separate existence, and in its intimate and protected state of alliance with England, that we can be sure of having the Tagus as a friendly instead of its being a hostile naval station." (Ashley's Life of Palmerston, vol. I, p. 20.)

³⁶ See Stowell : Diplomacy of the War of 1914, p. 496-502.

³⁷ This is the explanation of the following statement from Lawrence: "We may, therefore, say that the supremacy of the Great Powers is felt only in matters which are connected more or less intimately with European politics, though they may not belong geographically to Europe." (Lawrence: Essays on Some Disputed Questions in Modern International Law, p. 229.)

Had Holland been in Asia and situated near a state like Germany, it would have fallen under German control, but in Europe Great Britain blocked the road. It was natural that the Dutch, in the conduct of their foreign affairs, should defer sufficiently to Great Britain to sustain British interest in the continuance of Dutch independence, but, if Great Britain on her part should presume too far upon this deference, the government of the Netherlands corrected this excess by inclining toward Germany. By a similar policy of balance, other small states of Europe have been able to maintain their independence. They escape the dictation of a single power, and are only compelled to accept the decrees of the powers acting collectively. The position of Portugal is somewhat anomalous, and may properly be classed as within the British sphere of influence.

Professor Edwin D. Dickinson, in his remarkable study entitled, "The Equality of States in International Law," in the course of his discussion of the action of the European Concert, comments upon the status of Greece: "…. but the truth is that for nearly a century the great powers have governed the affairs of Greece in a series of conferences in which that state has not participated." (E. D. Dickinson: The Equality of States, p. 302.)

³⁸ "whereas when the Great Powers guaranteed the neutrality of Belgium, they fixed the international status of the newly-created kingdom, and made its neutralization a principle of public law. The consent of the lesser states was not asked ; but they were tacitly assumed to be bound by the acts of their more powerful neighbors. Similarly in such matters as recognition of independence, admission of another state to the rank of a Great Power, and reception of a semi-civilized state into the family of nations, the Great Powers act on behalf of others as well as themselves. They speak in the name of Europe, and bind it by their decisions." (Lawrence: Essays on Some Disputed Questions in Modern International Law, p. 231-2.)

Professor Pillet, discussing the fundamental rights of states, recognizes the control of the principal powers over the conduct of international affairs. He writes: ''The principal states known as the Great Powers have acquired the direction of the important interests which are of common concern. They decide upon the improvements to be made in the positive law of nations, they regulate the affairs which are of general interest, they take action to obviate great dangers which threaten them all. The Great Powers have, therefore, an evident superiority in fact which tends to become a superiority in law, by reason of the continually increasing deference with which their decisions are observed by the states concerned, even though they might, speaking from a strictly legal viewpoint, disregard decisions in regard to which they have not been consulted. (Translated from Revue générale du droit international public, Vol. 5, p. 71. Professor Pillet refers to Alfred Chretien, Principes de droit international public, p. 171.)

Cf. also H. von Rotteck's (Recht der Einmischung, p. 95-6) interesting remarks about the role of the European Concert; Günther (Volkerrecht, Vol. I (1787), p. 296) alludes to this right of action.

³⁹ President Wilson, in his war message to Congress says: "A steadfast concert for peace can never be maintained except by a partnership of democratic nations."

⁴⁰ Professor Holland, in his book, The European Concert in the Eastern Question, has collected the important documents relative to this matter, and supplied brief historical introductions. In an introductory chapter, he says: "The assumption of a collective authority on the part of the powers to supervise the solution of the Eastern question in other words, to regulate the disintegration of Turkey has been gradual. Such an authority has been exercised tentatively since 1826, systematically since 1856. It has been applied successively to Greece, to Egypt, to Syria, to the Danubian principalities and the Balkan peninsula generally, to certain other of the European provinces of Turkey, to the Asiatic boundaries of Turkey and Russia, and to the treatment of the Armenians." (Holland: The European Concert in the Eastern Question, p. 2.)

Another writer, F. W. Payn, remarks: "The relation of the powers at the Berlin Conference to the Petty States which they then called into existence are those of guardian and ward. 'If uncontrolled by Europe, the animosities and jealousies of Greeks, Bulgars, Serbs, and Macedonians, preventing them from acting in concert and leading to internecine conflicts, might quickly lead to the reimposition of the Turkish yoke upon her former provinces or more probably to an international conflict for the partition of Turkey, disturbing the peace of the world and fatal to the independence of these little States." (F. W. Payn: Cromwell on Foreign Affairs, p. 85.)

Rolm-Jaequemyns, in his study of the oriental question (Revue de droit international et de legislation comparée, Vol. 8, (1876), p. 367-9) recognized the right and the obligation of the European powers to intervene in the Balkans to protect the inhabitants from Turkish misrule.

⁴¹ When action is collective, the overwhelming force back of the decision gives it in fact a deference similar to a precept of law, and we may also regard the nations acting collectively as the nations in conclave. Now a conclave of the nations has always been recognized as the means of defining and enforcing the law of nations, just as anciently and before the development of more permanent and more highly differentiated institutions, the gathering of the people interpreted the law, and made provision for its execution. Hall recognizes (4th ed., 95, p. 307), that "a somewhat wider range of intervention than that which is possessed by individual states may perhaps be conceded to the body of states, or to some of them acting for the whole in good faith with sufficient warrant."

⁴² See R. Robin: Des Occupations, p. 281-5. We discuss this incident more fully below § 8 (a).

Because France was the tacit mandatory of Europe, Guizot was justified in declaring: "When Charles X, in 1830, declared hostilities against the Dey of Algiers, that could not be called on our part a defensive war ; yet was it, nevertheless, legitimate. In addition to the insult we had to revenge, we also satisfied a great and lawful interest, not only French, but European, by delivering the Mediterranean from the pirates who had infested it for ages." (Guizot, Memoirs, Translated by J. W. Cole, London, 1861, Vol. 4, p. 100.)

Professor Kebedgy draws a distinction between action as a mandatory and the ordinary intervention of a single state. A power acting in the capacity of a mandatory that is as the delegate of the powers is, he says permitted to act "only with the consent of the others and within the limits of the authorization." ( Translated from Kebedgy : Intervention, p. 82. )

⁴³ See Article 22 of the Covenant of the League of Nations, which is in part a codification of principles long acted upon. Cf. Secretary Colby's note to Earl Curzon of November 20, 1920, relative to the British mandate over the Mesopotamian oil fields (published in the press November 26, 1920), in which he speaks of "the establishment of the mandate principle" as "a new principle": but the treaty only gives a verbal recognition to an institution which has long existed in practice, although it has heretofore been an expedient of a somewhat exceptional nature.

A few other instances where mandatory is used in this sense are Lawrence: Some Disputed Questions in Modern International Law, p. 230; Hershey: Principles of International Law, p. 151.

"Nevertheless, mandates may be assigned for the control of regions which have hitherto had no intimate relationship with the paramount or trustee state, as was indicated by the offer to the United States of a mandate over Armenia.

President Wilson in his message to Congress, May 24, 1920, advising that the United States accept the proffered mandate over Armenia, quoted from the appeal of the San Remo conference a portion which dwells upon the advantageous position of the United States to undertake the task because of its disinterested situation "because they believe," so the appeal read, "that the appearance on the scene of a power emancipated from the prepossessions of the Old World will inspire a wider confidence and afford a firmer guarantee for stability in the future than would the selection of any European power." (Congressional Record, May 24, 1920, p. 7533.)

The American Military Mission to Armenia, known as the Harboard Mission, in its report dated October 16, 1919, gives an account of the frightful treatment to which the Armenians have been subjected, and considers under what conditions one of the great powers might undertake as a mandatory the supervisory control of the country. This report contains a valuable statement of the nature of the task, and formulates reasons for and against the acceptance by the United States of the mandate, should it be offered. In the enumeration of the motives which may influence this country in reaching a conclusion, we find a good statement of certain of the motives which are generally present and often potent to induce states to intervene in the internal affairs of other states.

⁴⁵ In the case of mandates under the Covenant of the League of Nations Article 22 seeks to prevent such abuse of power by the requirement that "the mandatory shall render to the Council an annual report in reference to the territory committed to its charge."

⁴⁶ Dr. T. J. Lawrence, discussing the Concert of Europe, touches upon this question: "If, then, the principles and rules of the law of nations are really to be deduced from the practice of nations when ever that practice is consistent and uniform, it is time, I think, to give up the doctrine of equality in deference to the stern logic of established facts. For many years Europe has been working around again to the old notion of a common superior, not indeed a Pope or an Emperor, but a Committee, a body of representatives of her leading states. During the greater part of the present century England, France, Austria, Prussia and Russia, have exercised a kind of superintendence over European affairs under the name of the Great Powers, and in 1867 Italy was invited to join them. An examination of the history of a few important international transactions will show the growth of what is called the Concert of Europe, and will enable us to discern in some degree the nature and limits of its functions. It will at the same time reveal to us

a difference in kind as well as in degree between the rights of sovereign states under modern International Law. (T. J. Lawrence: Some Disputed Questions in Modern International Law, 209-210.)

G. F. de Martens (Précis, § 119), over a century ago, spoke "of states of small or medium size which, however sovereign they may be in theory, are affected in their freedom to enter into agreements out of regard to powers that keep them in a very real dependence while they preserve the outward appearance of a formal independence."

Sheldon Amos refers to this question "in order," as he remarks, "to show that a purely legal dogma of an abstract equality cannot take the place of true political equality." (Remedies for War, p. 63.)

Westlake remarks:

"The rights of equality and independence are often reckoned among the inherent rights of states. With regard to the first, semi-sovereign or dependent states are manifestly unequal to sovereign or independent ones, and even the latter are ranked for ceremonial matters in an order of precedence, while it is not pretended that they are or ought to be equal to one another in the influence which accompanies strength. Their equality consists in the fact that in the received principles and rules of international law, other than those of a ceremonial nature, no distinction is made between great states and small, so that the influence of strength is only lawful when exerted in modes which the right of self-defence does not authorize those on which it is exerted to resist. Thus considered, and there is really no other way of considering it, the equality of sovereign states is merely their independence under a different name." (Westlake: International Law, Vol. I, p. 321.)

The recently published study on ''The Equality of States in International Law" by Professor Edwin D. Dickinson of the University of Michigan, has given us a thorough and scientific study of this doctrine of equality. This is a work of unusual merit and is almost certain to correct the prevailing misconceptions as to state equality. Mr. Dickinson, in his conclusion, writes :

"The principle of equality has an important legal significance in the modern law of nations. It is the expression of two important legal principles. The first of these may be called the equal protection of the law or equality before the law. States are equal before the law when they are equally protected in the enjoyment of their rights and equally compelled to fulfil their obligations. Equality before the law is not inconsistent with the grouping of states into classes and the attributing to the members of each class of a status which is the measure of capacity for rights. Neither is it inconsistent with inequalities of representation, voting power, and contribution in international organizations. The second principle is usually described as equality of rights and obligations or more often as equality of rights. The description is a heritage from theories of natural law and natural right. What is really meant is an equality of capacity for rights. Equality in this sense is the negation of status. If applied without qualification in international organizations it requires equal representation, voting power, and contribution. Equality before the law is absolutely essential to a stable society of nations. If it is denied the alternatives are universal empire or universal anarchy. Equality of capacity for rights, on the other hand, is not essential to the reign of law. Strictly speaking, it has never been anything more than an ideal in any system of law. Among states, where there is such an utter want of homogeneity in the physical bases for separate existence, there are important limitations upon its utility even as an ideal." (Dickinson: The Equality of States in International Law, pp. 334-5.)