We have seen that there are certain cases when a state is warranted in using force, either to secure redress for an injury, or to protect international society by enforcing respect for law and by preventing the abuse of a right. Such instances of intervention are of frequent occurrence, but we have still to examine certain other instances before we shall be in a position to decide whether the grounds upon which recourse to force is defended are to be condemned as unjustifiable interference. Interference as between states maybe defined as the unwarranted reliance upon force to constrain an independent state to adopt or to refrain from a particular course of action.

Since interference may result from menace as well as from the employment of actual force, it is important to distinguish between counsel offered in a friendly spirit, and similar "advice" which carries with it a threat of execution by force.⁴⁷ This distinction gives us no difficulty. It is only necessary to bear in mind that whether force is actually used or not, there is interference whenever an independent state is in fact restrained from the free exercise of its sovereign rights under international law by an intimation, however covert, of an intention to employ force to influence its action.⁴⁸

In discussing interference, the writers generally confine themselves to internal affairs, but there would seem to be no sufficient reason for insisting upon this limitation.⁴⁹ No doubt interference in international affairs is generally a more serious offense, and will be found to be less frequently extenuated by circumstances. Nevertheless, the use of force or the reliance thereon to dictate a sovereign state's conduct of foreign affairs is just as certainly an act of interference. Interference abroad, equally with interference at home, hinders a state in the exercise of the rights which belong to it by virtue of its sovereignty, independence, and equality. It follows then that non-interference in foreign as well as internal affairs is the correct rule of state conduct. But no state has a right to make an abusive use of its independence and to insist that it may pursue its selfish course without regard to the consequences for its neighbors. International law, guided by the experience and practice of states, has qualified the general rule of non-interference to admit certain other grounds of intervention which have been recognized as justifiable and more worthy of consideration than would be an insistence upon pushing to an abusive extreme the right of unrestricted independence of action in the conduct of a state's internal and external affairs.

In the following sections, we shall now consider the various grounds upon which states justify their encroachments upon the independence of their neighbors, and we shall be particularly interested to define any of these grounds of action before which the rule of non-interference gives way to recognize a just ground of intervention.

Without attempting to exercise constraint, a state will sometimes attempt to perform within the jurisdiction of another state acts of sovereignty, that is acts of authority which may under international law be performed only by the local sovereign.⁵⁰ Within another's jurisdiction, no state may perform any acts of authority unless permission has either been given by the local sovereign, or derived from some undisputed principle of international law. The performance of any act of authority constitutes a violation of sovereignty, and is an offense which no really independent self-respecting state will tolerate.⁵¹

There is a similar violation of sovereignty if a state attempts through penal enactments to compel individuals, while outside its own jurisdiction, to obey its commands in disrespect of the provisions of the local law wherever they may be. These two classes of instances are sometimes spoken of as acts of interference, but they are not the same as the other acts of interference discussed in the preceding section. For the offended sovereign is not constrained, but insulted, and immediately demands redress for the injury. If it should happen that the injured state meekly accepts the insult, then the violation of sovereignty merges into interference, for we may consider that it is virtually constraint that causes the injured state to forego its demand for redress.

There are other acts somewhat analogous, although they cannot be classed as violations of sovereignty, as when, for example, foreign representatives try to exert an indirect influence upon the government to which they are accredited, in order to induce it to conform to some desired policy. This may be done through the medium of the press, or through individuals of influence in government circles. There is also said to be interference when the agents of a foreign government pass over the heads of those with whom they are expected to negotiate in an attempt to bring pressure to bear upon the government to induce it to conform to their wishes.

This indirect influence is always resented by the government against which it is directed, even when it does not consider that the mano3uvre has been successful, and by general agreement, the rules of international law and diplomatic intercourse have come to set bounds to the political activity of foreign agents. To overstep them is to be guilty of a disrespect to the local sovereign and in a lesser degree to commit an infraction of its sovereign rights.⁵² A good name for these lesser infractions would be "contempt of sovereignty."⁵³

Even though there be no use of force in those instances of interference which constitute a disregard or disrespect of sovereignty, there is an insult which unless it be redressed, will lessen the respect, and hence the independence and equality of the state in question. A self-respecting state will not willingly submit to such treatment, and constraint only can explain the submission of a state which is willing to purchase safety at the expense of its honor.

Another less flagrant incident of such disrespect was recently reported in the press: Dr. Julio Bianchi, Minister of Guatemala, called upon Senator Moses, a member of the Foreign Relations Committee in reference to a Senate resolution "asking the State Department to explain this [U. S.] government's attitude towards the treatment accorded former President Estrada Cabrera of Guatemala by the new government in the Central American republic." (New York Times, Dec. 12, 1920, p. 14.) Shortly thereafter, in a communication to the Department of State, Minister Bianchi offered an explanation of his conduct, and added "that he regretted the incident, and promised that it would not be repeated." (New York Times, Dec. 24, 1920.)

A similar incident to the above occurred about this same time. The first Secretary of the British Embassy, during the illness of the Ambassador, dispatched directly to the Chairman of the Senate Committee investigating cable communication "a denial of the testimony given by a witness before the committee that the British Government censored cable messages to the United States from Great Britain." (New York Times, Dec. 24, 1920; Of. Washington Star, Dec. 23, 1920; Washington Post, Dec. 26, 1920.) To judge by the statements in the press, the State Department considered it necessary to notice these departures from the usual procedure of diplomatic intercourse.

Governments are particularly sensitive to any remarks made in regard to political matters under discussion in the legislature. It is evident that a foreign representative must be allowed to communicate politely and discreetly to the minister of foreign affairs the consequences which he believes will result from the adoption of the proposed measure but he must not go one step further and state what his government will do, or give publicity to his views, for he then attempts

either to impose the views of his own government, or he usurps advisory functions in the place of the constituted authorities. Professor Moore states this well recognized rule: "It is not permissible for one sovereign to address another sovereign on political questions pending in the latter's domains, unless invited to do so."⁵⁴ (Digest, VI: 5.)

After Viscount Grey returned from his mission to the United States, he published a letter in the London Times in which he discussed the ratification of the League of Nations Covenant. He explained the constitutional functions of the Senate in regard to treaties and the reason for the opposition to certain provisions of the League Covenant, and he lent his support in favor of certain modifications to meet these objections. Now President Wilson had been insisting that there must be no modification of the articles, and Lord Grey's letter could not help annoying him, but there was absolutely no possible ground upon which to base a complaint. Lord Grey had done no more than explain informally for the British public what it was right that they should be told. If the real purport was to inform the Senate that the British Government was less insistent upon an unamended treaty than was President Wilson, it was an able piece of diplomacy, a worthy example of the art. (See press reports Feb. 6, 1920.)

The Sun and New York Herald (Feb. 6, 1920) gives the following interviews with Senator Hitchcock, Chairman of the Senate Foreign Relations Committee, and generally regarded as President Wilson's spokesman:

"Senator Hitchcock insisted the Grey letter has been greatly overrated as to its importance and effect on the Senate situation. He issued a call for a conference of Democrats friendly to ratification to be held Saturday afternoon.

"Admitting that he had received a number of communications from the White House, Senator Hitchcock said none had borne on the general proposition of the treaty.

"'Has there been any change in the President's attitude?' he was asked.

"'I do not think I can tell you that,' was the reply.

'But I do not think the Grey letter will have much effect. It may affect the men who have thought the Allies would reject the treaty if we attached the Lodge reservations to it, but I never have believed they would object if we left the reservation subject to acceptance by acquiescence. There would have been danger if we had left in the preamble the requirement that the reservations be accepted in writing.

" 'The Grey letter seems to have been written for several purposes. One was to allay the feeling in Great Britain against the United States. Another was to help procure ratification here by making clear that Britain had no objection to the Lodge reservations. Nearly everybody had understood that.

" 'Before he left Washington I talked with Lord Grey and learned that his government did not seek six votes for the Empire and had little concern about them; but the British Government felt it would be embarrassed in its relations with the colonies and dominions if. they were disfranchised. To declare that America would not be bound by any decision in which it took part would be equivalent to disfranchisement. I do not think Britain is concerned how many votes we have, but she does object to depriving her dominions of their votes.

" 'Publication of the Grey letter in the press was an extraordinary proceeding for a government official. He could not do it here and he did it for a purpose. It seems to have been intended to placate British feelings against the United States and I do not regard it as a discourteous act. Lord Grey observed every propriety while here.' " The New York Times (February 6, 1920), states: "The one definite conclusion obtained from the White House announcement of to-day was that officials close to the President feel that Lord Grey, who still holds the rank of Special Ambassador to the United States, although he has returned to London, adopted a rather exceptional course in publicly expressing views which he must have known were in entire discord with the public utterances of the President in regard to the treaty situation. "The fact that Lord Grey, in his letter to the London Times, states that he spoke as an individual and not in the role of representative of his Government, has not been looked upon as materially changing the situation developed, especially in view of the fact that, as published in the New York Times on Monday, he showed to more than one Senator, during his visit here, a cablegram from Premier Lloyd George in which the latter stated that the Lodge reservations were satisfactory, and that England wanted the United States to enter the League of Nations.

"The publication of this information by the New York Times has attracted almost as much interest as the Grey communication to the London Times itself. There has been no effort to deny that such a cablegram existed and made its appearance in Washington at some of the conferences which Lord Grey held with Republican and Democratic Senators. In fact, several Senators have admitted either seeing or hearing of the cablegram and Senator Borah has had his version of the text of the now famous message included in the Congressional Record as part of an address attacking the League."

The efficacy of international society is, as we have seen, dependent upon the cooperation by the states whenever such cooperation is required to preserve the existence of a member state or to enable its government to fulfil its obligations under international law. It is not to be expected that any state will expend in this cooperation so great a portion of its resources as to endanger its own security or to prove an intolerable burden. The amount of the sacrifice which the cooperating state will make for this purpose will depend partly upon the benefits which it expects ultimately to derive from its effort, and partly upon its regard for the common good. The hope of enjoying a similar benefit when the circumstances are reversed also enters into the calculation. Reasoning a priori from this indisputable premise, international law would appear to justify states in coming to the assistance of a sister state to help it to suppress rebellion and preserve its orderly life. History affords us many precedents and certain of the older authorities also support this view.⁵⁵

Even as late as 1860, Theodore D. Woolsey, whose opinions are still highly esteemed, wrote: ". . . there is nothing in the law of nations which forbids one nation to render assistance to the established government in such case of revolt, if its assistance is invoked. This aid is no interference, and is given to keep up the present order of things, which international law takes under its protection."⁵⁶ (Woolsey: Introduction to International Law, 1st ed., 1860, § 41, p. 89 ; also 6th ed., § 42, p. 43.)

But this theory has a serious imperfection. It does not work in practice. By the test of actual experience, it has been tried and found wanting.⁵⁷ The assistance which a state accords its struggling neighbor has been found to deepen the hostile feelings of the factions, to discredit the sovereign, and to render it suspect of dependence upon the will of the helping state.

By other states the transaction is regarded with utmost jealousy, since it often presages a close alliance, and the state rendering assistance likewise becomes the target of all the disappointed parties in the assisted state. Its action engenders undying hatred. For all these reasons, assistance for the purpose of suppressing insurrection can no longer be justified as in accord with the approved practice of civilized states, and since it has been condemned in practice, assistance may properly be classified as unjustifiable. It is therefore an instance of interference.⁵⁸

Funck-Brentano and Sorel point out that a government exceeds its authority when it calls upon foreign help:

"When a state intervenes [interferes] to sustain the internal government of another state, in accordance with the wishes of the latter, the intervention [interference] results from an alliance; but this alliance is of a peculiar nature, for the government which asks or accepts the intervention [interference] of a foreign state itself attacks the sovereignty of the state which it directs. Such a government demonstrates its incapacity to make its authority respected by the subjects of the state, and it declares by implication that it has allowed the sovereignty of the state to perish. States are not states, are not sovereign, and are not independent unless they maintain order within, and secure respect for their territory. States only exist as the representatives of nations and the defenders of their interests. A state that appeals to foreign support against its own subjects fails in its duty, since instead of defending the nation against foreigners, it invites foreigners to violate its independence, and it exceeds its rights, since it no longer acts as a representative of the nation." (Translated from Funck-Brentano et Sorel: Droit des Gens, p. 219-220.)

But an invitation would evidently not be essential if the action to suppress revolution could be justified as taken to protect all of the states against a great and imminent danger.⁵⁹ This was the basis of the interference policy of the Holy Alliance to suppress revolutions. Metternich states this program of the Holy Alliance in a circular dispatch of May 12, 1821. "Useful or necessary changes in the governments of states must emanate only from the free will and the thoughtful and enlightened initiative of those whom God has made responsible for power.

"They (the powers) will consider void, and contrary to the principles of the public law of Europe, all pretended reforms brought about by revolution, or by force."⁶⁰ (Circular, May 12, 1821, Martens: Nouv. Recueil, vol. V, p. 644; Lingelbach: Intervention in Europe, p. 12.)

The British Government, championing non-interference, had opposed these doctrines of assistance to legitimate government.⁶¹ But even the British Government mildly interfered itself by delaying the recognition of the revolutionary government in Naples, and by criticizing the manner in which it had come into power.⁶²

This was an exception and on the whole the British Government threw its influence against the legitimacy doctrine which would excommunicate revolutionary government. On January 19, 1821, Viscount Castlereagh addressed the following circular to the British ministers at Foreign Courts:

"I should not have felt it necessary to have made any communication to you, in the present state of the discussions begun at Troppau and transferred to Laybach, had it not been for a Circular Communication, which has been addressed by the Courts of Austria, Prussia and Russia, to their several Missions, and which, His Majesty's Government conceive, if not adverted to, might (however unintentionally) convey, upon the subject therein alluded to, very erroneous impressions of the past, as well as of the present, sentiments of the British Government.

"It has become, therefore, necessary to inform you, that the King has felt himself obliged to decline becoming a Party to the measures in question.

"These measures embrace 2 distinct objects:

"1st. The establishment of certain general principles for the regulation of the future political conduct of the Allies, in the cases therein described;

"2ndly. The proposed mode of dealing, under these principles, with the existing affairs of Naples.

"The system of measures proposed under the former head, if to be reciprocally acted upon, would be in direct repugnance to the fundamental Laws of this Country. - But, even if this decisive objection did not exist, the British Government would, nevertheless, regard the principles on which these measures rest, to be such as could not be safely admitted as a system of international law. They are of opinion that their adoption would inevitably sanction, and, in the hands of less beneficent Monarchs, might hereafter lead to a much more frequent and extensive interference in the internal transactions of States, than they are persuaded is intended by the August Parties from whom they proceed, or can be reconcilable either with the general interest, or with the efficient authority and dignity of Independent Sovereigns. They do not regard the alliance as entitled, under existing Treaties to assume, in their character as Allies, any such general powers, nor do they conceive that such extraordinary powers could be assumed, in virtue of any fresh diplomatic transaction amongst the Allied Courts, without their either attributing to themselves a supremacy incompatible with the rights of other States, or, if to be acquired through

the special accession of such States, without introducing a federative system in Europe, not only unwieldy and ineffectual to its object, but leading to many most serious inconveniences.

"With respect to the particular Case of Naples, the British Government, at the very earliest moment, did not hesitate to express their strong disapprobation of the mode and circumstances under which that Revolution was understood to have been effected; but they, at the same time, expressly declared to the several Allied Courts, that they should not consider themselves as either called upon, or justified, to advise an interference on the part of this Country: they fully admitted, however, that other European States, and especially Austria and the Italian Powers, might feel themselves differently circumstanced ; and they professed, that it was not their purpose to prejudge the question as it might affect them, or to interfere with the course which such States might think fit to adopt, with a view to their own security; provided only, that they were ready to give every reasonable assurance, that their views were not directed to purposes of aggrandizement, subversive of the Territorial system of Europe, as established by the late Treaties.

"Upon these principles, the conduct of His Majesty's Government, with regard to the Neapolitan Question, has been, from the first moment, uniformly regulated, and Copies of the successive Instructions sent to the British Authorities at Naples, for their guidance, have been, from time to time, transmitted for the information of the Allied Governments.

"With regard to the expectation, which is expressed in the Circular above alluded to, of the assent of the Courts of London and Paris to the more general measures proposed for their adoption, founded, as it is alleged, upon existing Treaties, in justification of its own consistency and good faith, the British Government, in withholding such assent, must protest against any such interpretation being put upon the Treaties in question, as is therein assumed.

"They have never understood these Treaties to impose any such obligations; and they have, on various occasions, both in Parliament and in their intercourse with the Allied Governments, distinctly maintained the negative of such a proposition: that they have acted with all possible explicitness upon this subject, would at once appear from reference to the deliberations at Paris in 1815, previous to the conclusion of the Treaty of Alliance; at Aix-la-Chapelle in 1818; and, subsequently, in certain discussions which took place in the course of the last year.

"After having removed the misconception to which the passage of the Circular in question, if passed over in silence, might give countenance ; and having stated in general terms, without however entering into the argument, the dissent of His Majesty's Government from the general principle upon which the Circular in question is founded; it should be clearly understood, that no government can be more prepared than the British Government is, to uphold the right of any State or States to interfere, where their own immediate security, or essential interests, are seriously endangered by the internal transactions of another State. But, as they regard the assumption of such right as only to be justified by the strongest necessity, and to be limited and regulated thereby, they cannot admit that this right can receive a general and indiscriminate application to all revolutionary movements, without reference to their immediate bearing upon some particular State or States, or be made prospectively the basis of an Alliance. They regard its exercise as an exception to general principles, of the greatest value and importance, and as one that only properly grows out of the circumstances of the special case ; but they, at the same time,

consider, that exceptions of this description never can, without the utmost danger, be so far reduced to rule as to be incorporated into the ordinary diplomacy of States, or into the Institutes of the Law of Nations.

"As it appears that certain of the Ministers of the 3 Courts have already communicated this Circular Dispatch to the Courts to which they are accredited, I leave it to your discretion to make a corresponding communication, on the part of your Government; regulating your language in conformity to the principles laid down in the present Dispatch. You will take care, however, in making such communication, to do justice, in the name of your Government, to the purity of intention which has no doubt actuated these August Courts, in the adoption of the course of measures which they are pursuing. The difference of sentiment which prevails between them and the Court of London on this matter, you may declare, can make no alteration whatever in the cordiality and harmony of the Alliance on any other subject, or abate their common zeal in giving the most complete effect to all their existing Engagements." (British State Papers, 1820-1, Vol. 8, p. 1160-2.)

For a time Metternich was able to organize the continental monarchs for the purpose of interfering to insure themselves against the dangers of revolution, but even Russia sympathized with the Greek revolt and would not help to suppress it.⁶³ The Revolution of July (1830) in France gave the doctrine of interference to assist the "legitimate" government a fatal blow, although it was a long time before the reactionary powers entirely abandoned the policy of suppressing revolution.⁶⁴ In 1843, Nassau Senior remarks upon the views of Austria, Prussia, and Russia as to the illegality of insurrection against the "supreme, never ceasing, indivisible authority of a king," and continues, "They further assert that, by international law, all third parties are justified in interfering to enable a sovereign to retain or recover his authority. Whether they should or should not actually interfere, they have considered it a matter of discretion to be governed by the circumstances of each case ; but we are not aware that any one of them has ever abandoned, or doubted, or even limited that right." (Edinburgh Review, April, 1843, vol. 156, p. 365.) But on the same page, Senior states that England "denies that third parties can lawfully interfere to force a people to obey their sovereign." (Ibid, p. 365-6.)

In some instances, the British Government went further than a mere denial, as is shown by the following instructions of March 2, 1863, which Lord Russell, then Minister for Foreign Affairs, dispatched to the British Representative at Berlin:

"The Convention which has been concluded between Russia and Prussia, relating to the affairs of Poland, has caused considerable uneasiness in this country.

"The Powers of Europe were disposed to be neutral in the contest between the Russian Government and the Polish insurgents.

"Prussia has departed from this course.

"My inquiries, as well as a dispatch from Lord Napier, have led me to believe that the convention contains:

"1. An agreement that Russian troops, upon crossing the frontier of Prussia, shall not be disarmed, as would be required according to international usage, but shall be allowed to retain their arms, and to remain, and to act as an armed body in Prussian territory.

"2. A permission for Russian troops to pursue and capture Polish insurgents on Prussian territory.

"Count Bernstorff defended this Convention, and declared that it was not an engagement invoking intervention [interference] in the contest between Russia and the Poles.

"But it is clear that if Russian troops are to be at liberty to follow and attack the Polish insurgents in Prussian territory, the Prussian Government makes itself a party to the war now raging in Poland.

"If Great Britain were to allow a Federal ship-of-war to attack a Confederate ship in British waters, Great Britain would become a party to the war between the Federal Government of the United States and the Confederate.

"It is obvious that by this Convention Prussia engages to become a party in the war against the Poles without any apparent necessity for so doing. For Her Majesty's Government have not heard that any disaffection prevails in the Polish provinces of Prussia.

"It is but too probable that this Convention will irritate the Polish subjects of Prussia, tend to excite disaffection where it has not hitherto existed, and thus extend the insurrection.

"Upon viewing this Convention in all its aspects, therefore, Her Majesty's Government are forced to arrive at the conclusion that it is an act of intervention [interference] which is not justified by necessity; which will tend to alienate the affections of the Polish subjects of the King of Prussia ; and which, indirectly, gives support and countenance to the arbitrary conscription of Warsaw.

"You will read this dispatch to M. Bismarck, and you will ask for a copy of the Convention between Prussia and Russia.

"It is possible that the Government of Prussia and Russia, aware of the objections to which this Convention is liable, and seeing the ill consequences it may produce, may be disposed to cancel it, or to put an end to its operation.

"In that case you will inform me what steps have been taken with that view." (British Foreign State Papers, 1862-3, vol. 53, p. 807-8.)⁶⁵

We still occasionally find instances of assistance of a less pronounced or drastic nature than is the forcible invasion of a neighboring territory, as for example, when a state makes no protest when a neighbor blockades territory in the control of insurgents for the purpose of suppressing a revolt without according recognition of belligerency.⁶⁸ Sometimes such complaisance is an act of assistance no less effective than an armed intervention would be. Another form of assistance which may be effective in suppressing insurrection is an embargo upon the shipment of arms, such as the government of the United States has sometimes proclaimed on its Mexican frontier. Such an order is sure to handicap the operations of the insurgents, and it is likely to lead to and justify reprisals.⁶⁷ Still another interference by way of assistance is to grant a right of transit for the purpose of facilitating the suppression of an insurrection.⁶⁸ After the United States had recognized Carranza's Government, permission was given to the Mexican troops to traverse our territory. It was not surprising that the Villa faction had recourse to reprisals. On March 9, 1916, Villa, at the head of fifteen hundred Mexicans, raided the town of Columbus, New Mexico, killing several persons and committing various acts of destruction.⁶⁹

After it has been shown that interference for the purpose of assisting a government in the suppression of revolt is contrary to international law, it is not necessary for us to discuss interference either for the purpose of the "restoration"⁷⁰ of a deposed sovereign, or the "reintegration" to their former sovereign of provinces which have established their independence.

Interference for restoration and reintegration evidently violates the de facto principle of sovereignty still more seriously than does interference merely for the suppression of revolt. Consequently their illegality needs no demonstration and we may now pass on to consider the nature of state action which is the opposition of assistance, that is, the support of revolutionists against their government.

Interference in support of insurrection against the recognized government can hardly hope to find justification from the principles of international law.⁷¹ On the contrary, international law undoubtedly lays upon every state an obligation to forbear from interference during a reasonable period while the lawfully established government is attempting to reassert its authority. That this forbearance entails a considerable burden and loss is no adequate ground for interfering until a period reasonable under all the circumstances has been allowed for the reestablishment of the authority of the recognized government.⁷² And, even after the lapse of this interval, the presumed continuance of friendly sentiments should prevent any state from recognizing the revolting government unless the protection of important interests require it. A decent respect for the ties and relationships which bind together all the nations should make every state delay rather than hasten any proffer of aid. This obligation of forbearance does not relate only to armed invasion, but requires the state authority to refrain from all unfriendly acts or encouragement to the insurrectionists. This obligation of forbearance also requires states to police their frontiers and to prevent the organization and departure of hostile expeditions. Political refuge must not be abused and allowed to screen actual preparations for attack (see § 1, § 15) and legations and warships abroad must not be made use of to facilitate the operations of conspirators (see § 8(f ) ).

The obligation of reasonable forbearance is put to the test in the matter of recognition. The recognition of a de facto government without unreasonable delay after it has firmly established its authority is a fundamental principle of international law, and until such time as we shall have a more complete organization of the states of the world, it will be difficult to conduct international relations upon any other basis.⁷⁴ Nevertheless, the feeling of mutual trustfulness and security requires that every state should be able to rely upon its neighbors not to impeach its sovereignty, nor to withdraw in any manner the recognition which has once been accorded except when necessary for the purpose of protecting the important interests of the State that recognizes the new government. When these conditions are fulfilled, then recognition should only be given after the insurrectionists have firmly established their de facto independence and have maintained themselves beyond the period in which it is reasonable to expect the other states to support the inconvenience of the conflict.

The same requirements apply also to what is often a first step of recognition that is, recognition of belligerency. Recognition, when justified by the pressing need of the state to deal with de facto authorities is not interference. It is merely the exercise of an undoubted right. But any state that goes beyond the limits of what is required to secure the adequate protection of its immediate interests is guilty of a violation of the sovereignty of a sister state. Such an interference in the internal affairs of another state must be branded as contrary to the law of nations.⁷⁵ "Premature recognition" writes Professor J. B. Moore, "constitutes an act of intervention [interference], committed in favor of insurgents or of a conqueror. The recognition of the United States of America by France was in reality an act of intervention [interference] in support of revolution (cf. Moore's Principles of American Diplomacy, p. 13), as is shown by Article II of the treaty. Great Britain recognized the Kingdom of Italy before Francis II was entirely dispossessed." (Moore's Digest, Vol. I, p. 73.) Premature recognition is an unwarranted impeachment of sovereignty and is always an assault upon the rights of the parent state.

But when after a protracted struggle, neither side is able to vanquish the other, or to preserve the tranquility of the territory over which it claims jurisdiction, there arises a just ground for impeachment of sovereignty. In such a condition of anarchy it is permissible for the powers to intervene and adopt such measures as seem best calculated to reestablish order and to secure respect for international law throughout the land.

A protracted civil conflict usually degenerates into a condition of internecine warfare, and as such justifies humanitarian intervention (see § 8(c)) ; or the executive of the directing powers, acting in concert or separately as mandatories (§ 10), may consider that the freedom of sovereignty and the ensuing anarchy make it necessary to impeach the sovereignty of the state over the territory in question.⁷⁶

A prolonged struggle is almost certain seriously to injure the commerce of all other states, and to impose upon the nearer ones great burdens of police in the fulfilment of their obligations; in addition, vigilance and military preparation are often necessary in order to be ready to protect national interests. After a reasonable period of forbearance to allow the sovereign an opportunity to reestablish its authority, there arises, as we have indicated above, a right of intervention to prevent further injury to national interests. These grounds for intervention anarchy, humanity, and intolerable injury to the interests of other states combine in many instances to constitute the very strongest justification for recourse to such measures as are necessary to put an end to the strife. Certain authorities, perhaps not entirely free from national bias, maintain that interference to help a subject race to secure its freedom is not interference at all. How weak is the force of logic against these enthusiastic proponents of national emancipation!⁷⁷ They ignore the fact that international law is a society of recognized states and has no place for tribes, races, or nations which aspire to be accepted into the good fellowship until such time as by force of arms or by diplomacy an actual independence has been achieved.

No state can remain permanently strong which continues needlessly to oppress a subject people. The authority exercised over them must be tempered with humanity, or control will sometime surely be lost. But unless the sovereign is guilty of gross inhumanity, participation in the struggle by another state is as we have said, an act purely political and as such it must be judged. The evaluation of such interference requires the balancing of the benefits against the dangers and inconveniences, and the verdict which public opinion expresses needs to be checked up by consequent events.

An invitation from the insurgents can certainly have no more legal effect to justify interference in their support than when it comes from the recognized government, and since unrecognized insurrectionists have no legal standing, any appeal they may make must be considered solely from a political or moral viewpoint. Such appeals are often helpful to the interfering state as a defense against the imputation that it has harbored designs of conquest, and when the invitation comes from both the parties in conflict, mediation is properly undertaken; but in this latter event, if the proffered suggestion is enforced, mediation disappears, and we have an instance either of assistance or support of revolution, as the case may be.⁷⁸

It has frequently happened that states with hostile design have incited the disaffected elements in a neighbor 's territory to rise in revolt. This has been condemned as a violation of international law, but is it a violation of international obligation when a just ground for war exists and this milder measure with hostile intent may achieve the result without an invasion of territory by foreign troops! Or, when an invasion is necessary, is it not laudable to secure within the territory of the transgressor the cooperation of a portion of the population to help to enforce respect for the law that has been violated?

Formerly when the majority defended the divine right of kings and blamed any revolt against their authority as a crime they might expect other sovereigns to refrain from complicity in a revolt, but the right of a people to revolt against tyranny is now a recognized principle of international law.⁷⁹

To Professor Sheldon Amos, we owe the following concise - and so far as I know, the best - statement of the principles governing state action in support of revolutionists:

"It may be considered that, so far as direct and forcible intervention in the internal affairs of a Foreign State is concerned, the positive, as well as the negative, side of the doctrine is now pretty clearly established; that the mere strength, extent, or organization of an insurrectionary movement furnish no justification for interference either on one side or the other ; the duration of an anarchial condition, coupled with the apparent improbability of order ever being restored, may justify interference on the ground of the interest which all states are presumed to have in the stability and integrity of each state; and gross acts of inhumanity persisted in on either side may, on grounds of humanity, properly precipitate intervention." (Sheldon Amos: Political and Legal Remedies for War, p. 157-8.)

Every state has the right, when necessary for its defense, to anticipate the attack which another state premeditates and prepares. The authorities almost without exception recognize this right of prevention, or preventive war.

Lord Bacon, in his "Essay on Empire," writes: "Neither is the opinion of some of the schoolmen to be received, that a war cannot justly be made but upon a precedent injury or provocation ; for there is no question but a just fear of an imminent danger, though there be no blow given, is a lawful cause of war." (Phillimore: 1854, vol. I, p. 433.)

Grotius considers that "the first cause of a just war is an injury not yet done which menaces body or goods." (Grotius, Bk. II, ch. I, sec. II, § 3, Whewells's translation, Vol. I, 203.) But to Sir Edward Creasy we are indebted for the most perfect statement of the principle : "A state's right to security means not only the right to defend itself against actual direct attack, but the right to preserve itself from injury by anticipating attack in cases where it is manifest that attack is intended, and that such attack cannot be prevented by any pacific measures, which do not involve undue self-abasement and loss of real national dignity. In such cases (as in those of quarrels between individuals) the real aggressor is not he who first employs force, but he who renders the employment of force necessary."⁸⁰ (Creasy: First Platform of International Law, 1876, p. 150.)

But preventive war commenced without sufficient cause under a misapprehension as to the existence of the hostile design will itself constitute, in fact if not in intent, attack upon the innocent state. It will also be an unjustifiable interruption of the peace of nations. We may appropriately follow Grotius 's example and quote Cicero's remark: "That most injuries proceed from fear. He meditates hurting another fearing that if he do not so, he will suffer some evil." (Grotius, Book II, ch. 1. V. Whewells's translation, Vol. I, p. 208-210.)

If unreasonable apprehensions are made the basis for an unnecessary war, the peace of all the states will be destroyed. To obviate this inconvenience, many attempts have been made to formulate the conditions when recourse to prevention is justifiable. The text writers supply us with many definitions of the danger which would justify preventive action, but they do no more than to paraphrase what has been said above in regard to the meaning of danger. They do not attempt to set forth either the causes of the peril or circumstances in which it may reasonably be presumed to exist.

Vattel declares that "a nation must have received an injury, or be clearly threatened with one before it is authorized to take up arms as having a just ground for war." (Vattel, Law of Nations, Bk. II, 42, Carnegie translation, p. 248.)

Lord Castlereagh, in his note on the affairs of Spain, considers that the intervening state must be threatened with "that direct and immediate danger, which has always been regarded, at least in our own country, as constituting the only case which justifies foreign intervention." (De Martens, Rec. Supp. X. I. 176, quoted in Manning: Law of Nations, p. 135.)

It adds nothing to the precision of such definitions that nations should be cautioned against undertaking preventive action in doubtful cases, as when Vattel declares that a state "may even anticipate the other's design, being careful, however, not to act upon vague and doubtful suspicions, lest it should run the risk of becoming itself the aggressor." (Vattel: Bk. II, 50, Carnegie translation, p. 130.)

Chancellor Kent informs us that "the danger must be great, distinct, and imminent, and not rest on vague and uncertain suspicion."⁸¹

Since it is the evidence of a preparation for attack which justifies the remedial action of prevention, the first step is to find a definition of attack.

Westlake gives us a definition when he asserts the right of a state to defend itself by preventive means "against attack by another state, threat of attack, or preparations or other conduct from which an intention to attack may reasonably be apprehended. In so doing it will be acting in a manner intrinsically defensive even though externally aggressive. In attack we include all violation of the legal rights of itself or its subjects, whether by the offending state or by its subjects without due repression by it, or ample compensation when the nature of the case admits compensation. And by due repression we intend such as will effectually prevent all but trifling injuries (de minimis noncurat lex), even though the want of such repression may arise from the powerlessness of the government in question."⁸² (Westlake: International Law, vol. I, p. 312-3.)

From the point of view of international law, rather than from that of any particular state, we might say that recourse to preventive action is only permissible when overt acts have been committed, reasonably indicative of an intention to attack, and when there is peril in delay.

When it cannot be said that there is peril to the independence of the state concerned in putting off recourse to preventive action, the matter is not one of sufficient importance to interrupt the peace of nations.⁸³

When overt acts have been committed, and when delay would endanger the existence of the state, international law recognizes that the menaced state is fully justified in having recourse to preventive war.

It is not possible to define in advance the nature of the circumstances which will in every case constitute a peril in delay, any more than it is possible to draw up an exhaustive list of acts which may be considered as indicative of an intention to attack. In every instance there is a question of fact to be decided by an examination of all the circumstances, which are usually involved and complicated. Nevertheless, it is possible to analyze and classify the instances which have occurred in state practice in order to formulate a few rules to serve as a guide in reaching a correct conclusion. We shall first consider whether certain specified overt acts may reasonably be considered as indicative of an intention to attack.

A sudden and excessive increase of armament has been considered by certain writers to be sufficient evidence of hostile designs. Sir Robert Phillimore referring to G. F. de Martens, says that: "armaments suddenly increased to an extraordinary amount are calculated to alarm other nations, whose liberty they appear, more or less, according to the circumstances of the case, to menace." (Phillimore, 1st ed., vol. I, § 212, p. 226.)

But it is not always possible to decide whether the military preparations are for defense or offense. Sir Henry Maine writes: "A state may take what measures it pleases for its own defense; and a state may adopt whatever commercial system it thinks most likely to promote its prosperity. That a state has these powers is not now denied, and would not, I think, be disputed; but nevertheless if the existence of these rights had not now for two centuries been affirmed by International Law, I think they would have turned out to be full of pretexts for war. Even at this moment the patience of states is hardly tried by the way in which their neighbors act upon the principle. Take France and Germany. Rarely in the history of the world have there been such achievements of military engineering as are exemplified in the fortresses which line the long border of the two countries. Every one of those fortresses is just as available for attack as for defense ; and knowing what men are, it is really wonderful that no complaint has at present been made of the mere fact of their construction. Take again two dependencies of European countries, which are really great countries standing on a footing of their own British India and Asiatic Russia. These are not countries in which fortresses are, or are likely to be, constructed in any large number. The conditions of climate and other difficulties render them defenses of no great value; but either power is engaged at vast outlay in creating a system of railways within its own countries; and we can see even now that any fresh railway constructed within the border of the one country gives rise at least for criticism and private complaint on the part of the other. I do not think we can doubt that if International Law had not been perfectly clear and precise on the subject of these rights, alleged to flow from the sovereignty of states, they would conduce to every variety of complaint followed by every variety of war. What really enables states to exercise their sovereignty in this way is nothing but the legal rule itself." (Sir Henry S. Maine : International Law, p. 64-5.)

Creasy, epitomizing and paraphrasing the words of Vattel, approves of his opinion in making arrogance of conduct on the part of a powerful state a justifiable ground for preventive action: "If the preponderant state commits acts of injury against its neighbors or any of them, or if by the arrogance of its pretensions, the tone of its public dispatches and manifestoes, or by any other manner of conduct, beyond the mere increase of its strength, it clearly threatens to attack or oppress

its neighbors, then other states are justified in combining together, and in making war on it, so as to prevent it from committing disturbance of the general security of the commonwealth of civilized nations, or of the security and independence of any of them." (Creasy, First Platform, p. 285; based upon Vattel, Bk. ch. III, p. 349.) From the context it is evident that Vattel intended to offer advice as to the prudent course to follow, rather than lay down the basis for a legal presumption. When, however, a great state gives evidence of an intention to enter upon a course of conquest with the aim of acquiring universal dominion, it goes without saying that the imminence of the peril justifies other states in declaring war to prevent the accomplishment of the design.

The tremendous armaments of all the great powers in the past make it difficult to characterize any such military preparations as indicative of hostile designs. They are generally justified on the ground of their necessity for the protection of widely dispersed possessions, or for the maintenance of the relative influence of the state in world affairs.

But when a state makes military preparations which are evidently a part of offensive operations to be undertaken against a neighboring state that is not itself pursuing a similar course, there is good ground for suspecting the purpose of the preparations. Prior to the war, Germany constructed railway lines to facilitate the concentration of troops on the Belgian frontier. This act alone might have been no more than a reasonable preparation to prevent disaster in case France should try to surprise Germany by an attack through Belgium, but when the German preparations were seen to include no corresponding measures of defense at other points along its frontier where it might be expected that France would be most likely to attack, they took on the aspect of a hostile concentration for an unjustifiable attack upon France through Belgium.⁸⁴

France might reasonably have made this armament a ground for preventive action against Germany had she found it expedient to do so.

Russia, just previous to 1914, secured French loans and employed them to lay a network of lines for mobilization along the German frontier, and to increase the size of her army. It would have been hardly reasonable to consider this a threatening concentration in preparation for a surprise attack because it was known that Russia would still require a period many times greater than Germany to effect her mobilization. The laying of railways and the increase of her army were as necessary for Russia 's defense as for an attack.

But when one of two rival powers mobilizes or concentrates its forces in such a manner that when the operation is accomplished it will have overcome certain strategic advantages which its rival possessed before the initiation of these operations, it is certain that the other will immediately have recourse to preventive war unless it can rely upon the fairness of the mobilizing power to reach some equitable adjustment of their difference. It may, perhaps, observe a similar forbearance when it is assured of the support of the other states.

The situation existing between Germany and Russia prior to the outbreak of the war was always one of strategic tension due to this inequality of rate of mobilization. Since Germany could mobilize in four days, while Russia was thought to require three or more weeks, it is evident that the moment Russia commenced mobilization, Germany would lose a portion of her strategic advantage every day that she delayed an attack.⁸⁵

If there was any probability of war, it would not have been reasonable to expect Germany to do no more than to mobilize and patiently to wait while Russia used the succeeding days to put herself in battle array.⁸⁶

If space would permit, we should like to examine the instances in which this same question of the dislocation of the strategic equilibrium has been involved.⁸⁷

When increased armaments or strained international

relations compel a neighboring state to undertake by way of precaution burdensome counter-measures, there is a tendency to regard the conduct of the state that has caused the inconvenience as internationally reprehensible, and a just ground for preventive action.⁸⁸

Since international law does not authorize intervention to prevent a neighboring power from conscious preparations for war such as arming to the teeth and fortifying its frontier, it cannot be expected that it will permit interference with a state's enjoyment of its right to grow and to develop its resources, even though the increase of territory and resources should give a preponderance of power.

Grotius in his great work, "War and Peace," published in Latin in 1625, wrote : "There is an intolerable doctrine in some writers, that by the Law of Nations we may rightly take arms against a power which is increasing, and may increase, so as to be dangerous. Undoubtedly, in deliberating of war, this may come into consideration, not as a matter of justice, but as a matter of utility; so that if the war be just on other accounts, it may, on this account, be prudent ; and this is what the arguments of authors come to. But that the possibility of suffering force gives us the right of using force, is contrary to all notion of equity. Such is human life, that we are never in complete security. We must seek protection against uncertain fears from Divine Providence, and from blameless caution, not from force." (Grotius, Bk. II, ch. I, § XVII, Whewell's translation, vol. I, p. 224-5.) Emerich de Vattel, in his Law of Nations, 1758, expressed a similar view: "We are here presented with a celebrated question which is of the greatest importance. It is asked whether the aggrandizement of a neighboring state, in consequence of which a nation fears that it will one day be oppressed, is a sufficient ground for making war upon it ; whether a nation can with justice take up arms to resist the growing power of that state, or weaken the state, with the sole object of protecting itself from the dangers with which weak states are almost always threatened from an over-powerful one. The question presents no difficulties to the majority of statesmen; it is more perplexing for those who seek at all times to unite justice with prudence.

"On the one hand, a state which increases its power by all the efforts of a good government does nothing but what is praiseworthy; it fulfils its duties toward itself and does not violate those which it owes to other nations. The sovereign who by inheritance, by a free election, or by any other just and proper means, unites new provinces or entire kingdoms to his states, is merely acting on his right, and wrongs no one. How would it be right to attack a state which increases its power by lawful means? A nation must have received an injury, or be clearly threatened with one before it is authorized to take up arms as having a just ground for war. On the other hand, we know only too well from sad and frequent experience that predominant states rarely fail to trouble their neighbors, to oppress them, and even to subjugate them completely, when they have an opportunity of doing so with impunity. Europe was on the point of being enslaved for lack of timely opposition to the growing power of Charles V. Must we await the danger? Must we let the storm gather strength when it might be scattered at its rising! Must we suffer a neighboring state to grow in power and await quietly until it is ready to enslave us? Will

it be time to defend ourselves when we are no longer able to ? Prudence is a duty incumbent upon all men, and particularly upon the rulers of nations, who are appointed to watch over the welfare of an entire people. Let us try to solve this important question conformably to the sacred principles of the Law of Nature and of Nations. It will be seen that they do not lead to weak scruples, and that it is always true to say that justice is inseparable from sound statesmanship.

"First of all, let us observe that prudence, which is certainly a virtue very necessary in sovereigns, can never counsel the use of unlawful means in order to obtain a just and praiseworthy end. Do not object here that the welfare of the people is the supreme law of the state; for the welfare of the people, the common welfare of nations, forbids the use of means that

are contrary to justice and honor. Why are certain means unlawful? If we look at the matter closely, if we go back to first principles, we shall see that it is precisely because the introduction of such means would be hurtful to human society, a source of evil to all nations. Note in particular what we said in treating of the observance of justice (Book II, ch. V). It is, therefore, to the interest and even to the welfare of all nations that we must hold as a sacred principle that the end does not justify the means. And since war is only permissible in order to redress an injury received, or to protect ourselves from an injury with which we are threatened, it is a sacred rule of the Law of Nations that the aggrandizement of a state cannot alone and of itself give any one the right to take up arms to resist it." (Vattel: Bk. Ill, §§ 42-43 ; Carnegie translation, p. 248.)

The most eminent of all of the modern international jurists, John Westlake, nearly three centuries after Grotius, has given us a concise statement which covers the right to grow and to arm: "The natural growth of a nation in power, and even the increase of its armaments in a fair proportion to its population and wealth and to the interests which it has to defend, must be looked on without jealousy, and without any attempt to check it, by those nations which by an inferiority of character or situation are destined to a decline in relative power."⁸⁹ (Westlake: International Law, vol. I, 1910, p. 316-7.)

The protection of the general prosperity of nations is the primary aim of international law. It can never seek to arrest progress and prosperity in order to facilitate the task of preventing possible injustice, but must hope to find some other means of restraining the abuses of power. The right of every independent state to employ the means at its disposal to develop its resources and to arm for protection against attack is as clear as any right of international law.

To justify preventive action, it is not essential that the hostile preparations should be undertaken by the government itself. Whenever a government lends its countenance to individuals who are making hostile preparations within its territory, or even when the government does no more than fail to fulfil the obligations which international law imposes upon it to police its territory and to suppress the fitting out of hostile expeditions, it becomes responsible for the illicit acts which it has tolerated, or failed to prevent.⁹⁰

No doubt the best intentioned state cannot always prevent the abuse of its territory and its use as a base for hostile expeditions against a friendly state. But in that event, as we have seen, the state whose security is threatened has the right to intervene directly by way of self-help, and to remove the menace to its security. Should the state who was unable to police its own territory attempt to oppose this reasonable recourse to preventive action, it becomes itself responsible for the hostile preparations made on its territory, and preventive war then becomes justifiable against the government itself.⁹¹

When a state feels itself menaced by plots and preparations in a neighboring state, it is inclined to hold the latter responsible, even though the government itself is not implicated and when it has done its best to police its territory. Dissatisfaction with the result sometimes leads the menaced state to demand that more stringent laws be passed to permit of a greater vigilance. The other may be justified, however, in considering that the existing regulations go as far as is possible without interfering with the rights of its citizens and subjecting them to unreasonable restrictions. The precedents of international practice have to be consulted for the purpose of defining the obligations which international law imposes upon every state for the police of its territory. But when a government refrains from using the authority which it possesses, its conduct is either so unfriendly or so culpably negligent as to render it directly responsible for the hostile acts preparing against its neighbor, and to justify the latter in intervening to compel the delinquent state to reform its conduct.⁹²

Phillimore discussing this matter remarks: "Upon the same principle, though a nation has a right to afford refuge to the expelled governors, or even the leaders of rebellion flying from another country, she is bound to take all possible care that no hostile expedition is concerted in her territories, and to give all reasonable guarantees upon this subject, in answer to the remonstrances of the nation from which the exiles have escaped. During the time when the residence of the Pretender in France within the vicinity of England, gave reasonable alarm to the British Government, the removal of his residence to a place of less danger to Great Britain formed the subject of the stipulations of various Treaties. If the hostile expedition of the present Emperor of the French in 1842, against the then existing monarchy of France, had taken place with the sanction of connivance of the British Government, England would have been guilty of a very gross violation of International Law; and she showed at the time a wise and just anxiety to purge herself from any such suspicion. But though the strange and almost unparalleled vicissitudes of fortune afterwards compelled the very monarch, against whom that expedition had been directed, to take refuge in this country, the then representative of the executive of France, though the leader of that expedition, had no cause of complaint, either on this ground, or because other political refugees, professing all shades and kinds of opinion, resided in safety in England; which, before it was their refuge, had so often been, and indeed still is, the theme of their vituperation."⁹³ (Sir Robert Phillimore: Commentaries Upon International Law, 1854, vol. I, § 217, p. 228-230.)

Military necessity in relation to neutral rights is probably the most intricate of all the questions which we shall have to discuss, and it has not as far as I am aware been satisfactorily treated by any of the writers upon the law of nations. To understand the application of the principles, it is first necessary to understand the nature of neutrality. We have already seen that every state is obligated to do what it is reasonably able to help to enforce international law, and to repel aggression against its sister states. Now since the imperfect system of international law leaves to each state the exercise of its discretion as to where and how it should act, it may well happen that an injustice be done the innocent party in strife through a failure of other states to be reasonably active in the discharge of their obligation to cooperate for the enforcement of justice. When such a miscarriage of justice occurs, the injured state will have just cause of complaint against neutral states, and since states have ever been prone to regard their own cause as just, they have generally been ready to penalize neutral states who fail to intervene in support of what the belligerent considers justice, i.e., his own cause. In this atmosphere has grown de facto a right of neutrality for those states only that were sufficiently strong to insist upon enjoying that status. As an obligation corresponding to this right of neutrality, the neutral state was bound to enforce upon both belligerents alike the respect of its neutrality. The point to note clearly is that the right of a state too weak to make its neutrality respected by all the belligerents can be based only upon the sanction of other states cooperating to make it respected. In the absence of such a collective sanction, a belligerent who fears that his adversary will take advantage of the weakness of a neutral state will not dare to wait until by the violation of the neutral territory the war has been won. In this situation, the belligerent who has ground for apprehension will anticipate and offer the neutral too weak to defend his neutrality the choice of being with him or against him.

It is reasonable to believe that the bitter lesson taught by the recent war will make powerful neutrals quicker to intervene for justice in future wars, in which event a small power in a precarious position may be allowed to remain neutral even when unable to defend its neutrality against an unscrupulous belligerent.

Let us hope that the time has come when a weak neutral can rely on the support of other states. In any event, we may expect to find in practice a better respect of neutral rights on the part of belligerents.

But even now and until the advance is reasonably certain, there is some justification for belligerents proceeding as far in the disregard of neutral rights as neutrals and other states will tolerate, provided always that such disregard does not amount to an act of bad faith or inhumanity, which is contrary to the fundamental and always controlling precepts of international law.

Grotius took this view as the following extract shows :

"Hence we may collect how he who carries on a righteous war may lawfully seize a place situate in a land which is not at war ; namely, if there be a danger, not imaginary, but certain, that the enemy will seize that place, and thence do irreparable damage: and next, on condition that nothing be taken which is not necessary for this purpose of caution, for example, the mere custody of the place, leaving to the true owner the jurisdiction and the revenues: finally, if it be done with the intention of restoring the custody to the true owner as soon as the necessity is over." (Grotius: De Jure et Pacis, Bk. II, ch. II, X, Whewells 's translation, vol. I, p. 240-241.)

Vattel, with a reckless disregard of consistency with his previously expressed opinion (see Bk. Ill, 43) declares: "Imperative necessity may also warrant a belligerent in seizing temporarily a neutral town and placing a garrison there, for the purpose either of protecting himself against the enemy or of anticipating the designs of the enemy upon the same town, when the sovereign is unable to defend it." (Vattel: The Law of Nations, Bk. Ill, ch. VII, § 122, Carnegie translation, p. 275.) Hall discusses this situation somewhat fully: "The right of self-preservation in some cases justifies the commission of acts of violence against a friendly or neutral state, when from its position and resources it is capable of being made use of to dangerous effect by an enemy, when there is a known intention on his part so to make use of it, and when, if he is not forestalled, it is almost certain that he will succeed, either through the helplessness of the country or by means of intrigues with a party within it. The case, though closely analogous to that already mentioned, so far differs from it that action, instead of being directed against persons whose behavior it may be presumed is not sanctioned by the state, is necessarily directed against the state itself. The state must be rendered harmless by its territory being militarily occupied, or by the surrender of its armaments being extorted. Although therefore the measures employed may be consistent with amity of feeling, it is impossible to expect, as in the former case, that a country shall consider it more important that the threatened state shall be protected than that its own rights of sovereignty shall be maintained intact, and while the one state may do what is necessary for its own preservation, the other may resent its action, and may treat it as an enemy. So long however as this does not occur, and war in consequence does not break out, the former professes that its operations are of a friendly nature; it is therefore strictly limited to such action as is barely necessary for its object, and it is evidently bound to make compensation for any injury done by it.¹⁸

"The most remarkable instance of action of the kind in question is that which is presented by the English operations with respect to Denmark in 1807. At that time the Danes were in possession of a considerable fleet, and of vast quantities of material of naval construction and equipment; they had no army capable of sustaining an attack from the French forces then massed in the north of Germany; it was provided by secret articles in the Treaty of Tilsit, of which the British government was cognizant, that France should be at liberty to take possession of the Danish fleet and to use it against England;¹⁹ if possession had been taken, France 'would have been placed in a commanding position for the attack of the vulnerable parts of Ireland, and for a descent upon the coasts of England and Scotland;' in opposition, no competent defensive force could have been assigned without weakening the Mediterranean, Atlantic, and Indian stations to a degree dangerous to the national possessions in those regions; the French forces were within easy striking distance, and the English government had every reason to expect that the secret articles of the Treaty of Tilsit would be acted upon. Orders were in fact issued for the entry of the corps of Bernadotte and Davoust into Denmark before Napoleon became aware of the dispatch, or even the intended dispatch, of an English expedition. In these circumstances the British government made a demand, the presentation of which was supported by a considerable naval and military force, that the Danish fleet should be delivered into the custody of England; but the means of defense against French invasion and a guarantee of the whole Danish possessions were at the same time offered, and it was explained that 'we ask deposit we have not looked for capture; so far from it, the most solemn pledge has been offered to your government, and it is hereby renewed, that, if our demand be acceded to, every ship of the navy of Denmark shall, at the conclusion of a general peace, be restored to her in the same condition and state of equipment as when received under the protection of the British flag.' The emergency was one which gave good reason for the general line of conduct of the English government. The specific demands of the latter were also kept within due limits. Unfortunately Denmark, in the exercise of an indubitable right, chose to look upon its action as hostile, and war ensued, the occurrence of which is a proper subject for extreme regret, but offers no justification for the harsh judgments which have been frequently passed upon the measures which led to it." (Hall: International Law, 4th ed., 1895, § 85, p. 284-7.)

Hall has not included what was perhaps the most significant incident connected with these events. The British plenipotentiary, desirous of limiting the harshness of the measures so as not to humiliate the Danes unnecessarily, had agreed to withdraw the British forces from the captured island of Zealand within a short period. But in view of the hostility of Denmark, which was naturally to be expected, the retention of this position became a matter of the greatest military importance. Nevertheless^ the British Government honorably carried out the unfortunate terms of their plenipotentiary, which they might, with some justification, have regarded as a sponsion. Evidently in their minds the faithful observance of a treaty took precedence over military necessity even in a case of such urgency as the one under consideration.²¹

The case of Copenhagen has often been referred to by German sympathizers as exactly comparable with that of Belgium, but the two cases obviously are not based upon the same principles. Firstly, in the case of the invasion of Belgium, Germany's own uncompromising we might say aggressive conduct made war inevitable and created the necessity, if such there was. Secondly, it would appear that the war might have been fought without invading Belgium, and hindsight has shown how much wiser were those of the Kaiser's advisers who urged another plan. But after all, these two reasons are of lesser moment than those which follow. Thirdly, Germany had solemnly pledged her word to defend the neutrality of Belgium, whereas, instead of keeping faith, she treacherously invaded the territory of an innocent nation. Fourthly, Germany unworthily attempted, by bearing false witness, to make her own people and neutral nations believe that the invasion was justified by prior violations of Belgian territory, into which, Germany declared, French troops had penetrated. Thus, Germany herself violated a treaty into which she had entered with a full knowledge of all the circumstances and from which she had for many years derived advantage.

In honorable contrast with this conduct, England may be justly proud of the scrupulousness with which in 1807 her Government refused to make necessity a ground for repudiation of the agreement into which they entered, we might say unwittingly. It would not necessarily follow that the precedents of a hundred years ago should be made the models of to-day, but in a situation similar to that which faced England in 1807, when the autocracies of France and Russia combined to compass her ruin, I believe that any intelligent government would disregard the neutrality of a power too weak to prevent itself from becoming an involuntary instrument for the carrying out of the enemy's designs.

If a high-minded and intelligent government would follow the precedent of 1807, we should praise and not blame England for it. But it is to be hoped that a nearer sense of the obligation which rests upon all of the states to defend the independence of any one of them from attack will henceforth render such an act of prevention at one and the same time unnecessary and inexpedient.

Among independent states, the maintenance of the political equilibrium is a matter of constant attention. It is almost as instinctive for the statesman incessantly to make the countless little moves which are necessary for the purpose as it is for an individual to call into play the different muscles which maintain his balance and keep him erect.²²

Since every state that is not increasing its relative influence in international affairs is anxious at least to preserve existing advantages, it is natural that this similarity of purpose should constitute a basis for cooperative action. The supporters of the policy of conservation would preserve the political equilibrium of states by the maintenance of existing relations, that is, they defend the status quo. The weaker states that fear to be swallowed up by the great states are generally of this persuasion, and sometimes this group will be found to include a great state possessed of greater territory than it can expect to defend by its unaided force against the encroachments and cupidity of its rivals.

A different method is advocated by a second group composed of states of great power and insatiable land hunger who wish to acquire new territories without the danger and expense of war. They would apportion among themselves the territory of any state upon which they have cast their covetous eyes. The best instance of the application of this method of maintaining the political equilibrium was the partition of Poland at the end of the eighteenth century. But this doctrine of partition in order to maintain the balance of power is nothing but another name for conquest. It can make no claim to the recognition of international law, since its purpose is to build up the territories of the great powers through the spoliation of their weak and un- offending neighbors. In practice the partition of the coveted territories does not meet the basic test of law. It is not generally effective in maintaining peace. On the contrary, it sows the seeds of greater discord.²³

The brazen doctrine of partition has had an interesting history of its own. The first crude method of equal division was improved upon so as to permit the carving up of the seized territory in such a manner as to preserve the proportionate strength of the partitioning powers.²⁴

As evidence of the prevalence of this doctrine, we may quote from so liberal a thinker as Sir Robert Morier, who was in general no admirer of Napoleon III. He writes his father from Vienna, June 20, 1866: "That, if there should result from this war [Austro-Prussian] great territorial changes such as to alter very gravely the relative strength of the military monarchies of Europe, France should expect some corresponding advantages, is so absurdly fair that it is inconceivable to me that even that dullest of corniferi, John Bull, should shake his foolish head at it."²⁵ (Memoirs and Letters of Sir Robert Morier, vol. II, p. 67.)

In this connection, and in view of subsequent events, it is interesting to read what Lord Palmerston wrote Lord Clarendon, March 1, 1857: "As to the Emperor's schemes about Africa, the sooner Cowley sends in his grounds of objection the better. It is very possible that many parts of the world would be better governed by France, England, and Sardinia than they are now; and we need not go beyond Italy, Sicily, and Spain for examples. But the alliance of England and France had derived its strength not merely from the military and naval power of the two states, but from the force of the moral principle upon which that union has been founded. Our union has for its foundation resistance to unjust aggression, the defense of the weak against the strong, and the maintenance of the existing balance of power. How, then, could we combine to become unprovoked aggressors, to imitate, in Africa, the partition of Poland by the conquest of Morocco for France, of Tunis and some other state for Sardinia, and of Egypt for England! and, more especially, how could England and France, who have guaranteed the integrity of the Turkish Empire, turn round and wrest Egypt from the Sultan! A coalition for such a purpose would revolt the moral feelings of mankind, and would certainly be fatal to any English Government that was a party to it. Then, as to the balance of power to be maintained by giving us Egypt. In the first place, we don't want to have Egypt. What we wish about Egypt is that it should continue attached to the Turkish empire, which is a security against its belonging to any European power. We want to trade with Egypt, and to travel through Egypt, but we do not want the burthen of governing Egypt, and its possession would not, as a political, military, and naval question, be considered, in this country, as a set-off against the possession of Morocco by France. Let us try to improve all these countries by the general influence of our commerce, but let us all abstain from a crusade of conquest which would call down upon us the condemnation of all the other civilized nations. ' 'This conquest of Morocco was the secret aim of Louis Philippe, and is one of the plans deposited for use, as occasion may offer, in the archives of the French Government." (Ashley: Life of Palmerston, vol. II, p. 125-6.)

The tenet of the first school - that which defends the rigid maintenance of the status quo - may not appear so abhorrent, but it has no greater justification in international law than the doctrine of conquest, called partition. The latter in any event does allow the states of exuberant strength to acquire new territories, while the former would put the world in a strait-jacket.²⁶

We must therefore relegate these two time-honored doctrines to the sphere of politics of which they are an interesting, if not happy, expression. Unfortunately, many of the writers upon international law have failed to perceive this, and have been led into a regrettable confusion. They have done much to obscure the understanding of the balance of power.²⁷

Other writers have added to the confusion of the discussion by classing under the balance of power counter-intervention by third states to prevent a state which has vanquished its rival from disturbing the political equilibrium by an unjust annexation of territory. Any and all of the states are of course justified and obligated to do what is reasonably possible in preventing the conqueror from exacting an unreasonable satisfaction, such as an excessive annexation of territory. In those instances when other states have been apprehensive that the excessive annexation would disturb the political equilibrium, they have naturally been especially active in preventing it. But such interventions from a legal viewpoint were no more than ordinary instances of counter-intervention for the vindication of the law and the prevention of conquest. Ignoring this, statesmen and many of the text-writers have regarded this action entirely from the point of view of the political motive which inspired it. They have therefore classified it by its political motive as an instance of action to maintain the balance of power instead of by its juridical purpose as counter-intervention.²⁸

A similar confusion has been made where states have combined against a power that has given evidence by its conduct that it was preparing to subjugate its neighbors in the hope of acquiring a commanding position in world affairs. We have already referred to the justice of thwarting these designs by way of prevention. Essentially this is action for self-defense, although it is anticipatory in form.

When the discussion of the balance of power ranges over these four classes of state action without distinguishing them carefully one from another, we cannot wonder that no very clear understanding of the juridical principles applying to intervention for the preservation of the balance of power has been reached.

It is interesting to follow the history of the doctrine of the balance of power, as M. Charles Dupuis has done for us so admirably in a recent volume.²⁹ But we are here primarily concerned in finding out what the law of intervention relative to this matter now is ; and for this purpose, we are obliged to examine the practice of states. What states now do and have done in the past, and justified on the ground that the purpose of their intervention was lawful must be presumed to be so. Among the modern writers who have studied this question, not a few have recognized that intervention for the preservation of the balance of power is justifiable.³⁰ Probably those who condemn the balance of power are thinking solely of the doctrines of partition and the status quo, which cannot, as we have seen, be defended.³¹

Turning to the practice of states, we find that a continuing and controlling majority of the states of international society have acted upon the belief that their interests would be best maintained by preventing anyone of their number from suddenly acquiring so great an accession of territory or resources as to disturb the relations of other states, and to endanger the continuance of the independence of some of them.³² In practice, the states have intervened severally and collectively to enforce respect for this principle.

Why, it will be asked, is this prohibition permissible when the insistance upon the status quo is not! At first view it might seem that the lawful acquisition of territory through the succession of a sovereign, or through the combination or annexation of two states, was no different in principle from a dangerous preponderance of power which results from gradual growth and increase of wealth and resources. It would, however, be futile to attempt to prevent increase of power through growth. The natural force of human growth, which is more fundamental than the regulating enactments of nations, would rend asunder any system which attempted to prevent a state from using the advantages of its foresight, self-denial, and wealth to continue its state growth. But the right of increase by growth, which cannot be denied, may be reasonably regulated, so as to prevent disastrous consequences to others, and the states in practice have not hesitated to subject the exercise of any of the rights of sovereignty to such reasonable restrictions as they judged to be for the best common interest.³³

Reasonable regulation of the exercise of the rights of an independent state has often taken the form of a restriction upon armament and fortification.³⁴

A special and important form of the restriction of armament is the neutralization of a portion of the territory of a state.³⁵ This application of the principle has been extended to place an entire state under the regime of neutralization.³⁶

Regulation has been attempted with more or less success in regard to the form of government,³⁷ and the capacity to enter into certain treaties. From the nature of things, such provisions must be of comparatively short duration, but they maybe of great value in tiding over difficulties and putting an end to wars. That they continue to form an integral part of the existing law of nations is evidenced by the articles of the recent Peace Treaty of Versailles.³⁸

The regulatory restrictions (presumably reasonable) which the states of the world in their executive capacity have imposed upon individual states with the object of preserving international peace are usually found in the acts of the great congresses or conferences, such as Westphalia and Vienna. The powers of first rank assembled in conference have effectively exercised the executive authority of international society, and the treaties which they have signed and proclaimed for the government of all the states non-signatory, as well as signatory, have" included in express words such restrictions as they considered reasonable and necessary to effect the purpose in view.³⁹

These treaties are usually known as treaties of guarantee, because the signatory powers promise to intervene to enforce them.⁴⁰

International law, as evidenced by the practice of states is seen to justify a power when intervening for the preservation of international peace and tranquility, to prevent an acquisition of territory dangerous to the security of the other states, and to enforce respect for such reasonable restrictions as are imposed upon the exercise of the sovereign rights of certain states. This action, so necessary for the enforcement of international law and the maintenance of order, will be thought by many to be no more than mere abuse of force. In consequence of this error, they may sometimes be inclined to obstruct justice by resisting the powers that are attempting to preserve and protect the interests of all the states by maintaining the conditions necessary to preserve peace and order. A correct understanding of the principles governing intervention for the preservation of the balance of power is, therefore, a matter of great practical importance.

Conquest is the forcible seizure, or the enforced cession of territory or rights from a state without the authorization of international law.⁴¹ Otherwise expressed, conquest is a violation of international law.⁴²

History furnishes many examples of conquest, and certain writers like Bernardi and Steinmetz have unblushingly advocated it,⁴³ but no modern government, however strong or however ill-intentioned, has dared to proclaim a war of conquest or to justify conquest as such. Whenever conquest was the motive, some other pretext has been alleged to cover it.⁴⁴

Lord Palmerston, in a letter to Lord Clarendon in 1853, gives us the following remarkable description of the older methods of conquest as employed by the Russian Government: "The policy and practice of the Russian Government has always been to push forward its encroachments as fast and as far as the apathy or want of firmness of other Governments would allow it to go, but always to stop and retire when it was met with decided resistance, and then to. wait for the next favorable opportunity to make another spring on its intended victim. In furtherance of this policy, the Russian Government has always had two strings to its bow - moderate language and disinterested professions at Petersburg and at London; active aggression by its agents on the scene of operations. If the aggressions succeed locally, the Petersburg Government adopts them as a 'fait accompli' which it did not intend, but cannot, in honor, recede from. If the local agents fail, they are disavowed and recalled, and the language previously held is appealed to as a proof that the agents have overstepped their instructions. This was exemplified in the Treaty of Unkiar-Skelessi, and in the exploits of Simonivitch and Vikovitch in Persia. Orloff succeeded in extorting the Treaty of Unkiar-Skelessi from the Turks, and it was represented as a sudden thought, suggested by the circumstances of the time and place, and not the result of any previous instructions; but having been done, it could not be undone. On the other hand, Simonivitch and Vikovitch failed in getting possession of Herat, in consequence of our vigorous measures of resistance; and as they failed, and when they had failed, they were disavowed and recalled, and the language! previously held at Petersburg was appealed to as a proof of the sincerity of the disavowal, although no human being with two ideas in his head could for a moment doubt that they had acted under specific instructions." (Ashley: Life of Lord Palmerston, 1876, vol. II, p. 25-26.)

In this polite age, conquest is usually effected under the guise of an indemnity for a war proclaimed to have been undertaken in defense of international law rights.

In some instances the cession of territory is exacted as security against the recurrence of the offenses alleged to have justified recourse to arms.

It is not necessary to enter into any further discussion of conquest as a justifiable purpose of war, but the question as to the legality of conquest has been much confused because of the failure to perceive the distinction between the illegality of conquest and the legality of the consequences which often result directly from a conquest. It is of primary importance to international society that every territory should have a responsible master able to police it for the maintenance of peace and for the fulfilment of international law. It is not yet practicable to hold the title to important territory in abeyance because it has been illegally acquired.⁴⁵ For the same reason that a certain period of adverse possession gives title to land in our common law, any territory acquired by conquest is presumed legally to belong to the conqueror as soon as forcible opposition to the conquest ceases and the other states refrain from publicly impugning the title.⁴⁶ There is evidently a great field for the further gradual restriction of the more injurious forms of conquest. This progress must be based upon a clearer definition and understanding of the nature and function of the derivative forms of conquest. We may expect the powers gradually to become nicer in regard to the recognition of title resting merely upon firm possession after conquest.⁴⁷ In the course of time we may also expect that conquest will be defined more carefully and rigidly, so as to place under the ban certain disguised and more refined methods now used to obtain by force what belongs to another.

It is often erroneously stated that a right of intervention arises from a treaty. This is a misunderstanding. Treaties do not create rights, they record them.^47a

The procedure of international law allows each state a very wide discretion in judging how far the circumstances will permit it to go in the fulfilment of its obligations to enforce international law, and this uncertainty reacts on other states, who are deeply concerned in knowing how the state will interpret its obligations and what policies it will pursue. To obtain this assurance, states enter into agreements recorded in treaties that they will or will not act in a particular manner.⁴⁸ Evidently such an agreement must look to the performance of acts which are in themselves legal under international law. Otherwise to fulfil the treaty would be to violate international law, and this no nation may justly promise or require. Treaties which record an agreement to interfere in the internal affairs of the signatory or of other sovereign states are without any standing in international law, and cannot be made to justify the interference which they contemplate. No state can retain its independent status if it agrees to transfer to another the liberty to interfere for the preservation of a particular form of government.⁴⁹ Such an agreement would be equivalent to a signing away of international sovereignty, and would, if duly entered into and acquiesced in by all the interested states, amount to the establishment of a supervisory control or protectorate.⁵⁰ A change of such serious import cannot be presumed to be intended, and any government which should promise to another such liberty of interference would be acting ultra vires, that is, beyond its powers, unless it were shown that the nation as a whole had, after due consideration, intended to accept the inferior status of a protected state.

There are, however, instances in which treaties relative to interference in the internal affairs of fully sovereign states are in accord with international law, and must be considered as valid. We refer to stipulations which evidence the agreement of the concert of powers to restrict the exercise of rights of sovereignty for the defense of the interests of international society, as, for example, when the Great Powers excluded Napoleon from the throne of France.⁵¹

In conclusion, we may summarize the results of our discussion: whenever the justification of intervention is based upon a treaty, it is necessary first to show that the purpose of the treaty was legitimate. Treaties which have the support of a majority of the states are, however, to be presumed to be a sufficient justification for the acts they contemplate, unless it be shown that the provisions of the treaty constitute an unreasonable curtailment of the rights of an independent state not necessary for the peace and security of international society.

FOOTNOTES:

⁴⁷ The same distinction based upon the absence of constraint hold as regards intercession, good offices, and mediation, the consideration of which must be reserved for a later volume on the procedure for the settlement of international controversies. Westlake remarks:

"….. the tender of advice to a foreign government, even about the internal affairs of its state, is not intervention and violates no right, though it is generally injudicious. Statesmen must remember that though governments and states are different, and it is to states that the rights given by international law belong, yet it is governments that they have to live with and whose susceptibilities they will therefore find it needful to consult." (Westlake: International Law, Vol. I, p. 320-321.)

"Usually the intimation is not given in so crude a form as to amount to a threat of force. A word to wise governments is sufficient, and from even the slightest hint, a small state understands what its greater neighbor wishes. A refusal to acquiesce will bring into play against it the wide reaching influence of the great state, and unless the smaller state can counter by some retaliatory action sufficiently important to act as a deterrent, it must expect to feel the full weight of the great state's hostility exercised in a peaceful but unfriendly manner. The consequences may be very disastrous to the small state. The smaller state usually yields perforce to the dictation of the greater, and avoids the disagreeable consequences which would result from an insistence upon its rights. We have then a veritable instance of interference, but it is one which neither of the states concerned cares to proclaim as such.

The essential object of investigation in any instance ought to be to discover whether an undue influence has been exerted upon the government to induce it to adopt a desired course in such a manner as really to affect its freedom of action.

The mere fact that a particular course is adopted by a small state from fear that otherwise the great neighbor will make it suffer does not constitute an act of interference unless the great state has given an intimation or warning which thereby attaches to the act a greater certainty of a disagreeable consequence.

The anticipation that the greater state may use force is the ordinary condition of interstate life, but an intimation to the effect that force will be used is an attempt to control the weaker state by duress. Should an intimation be disregarded under such circumstances, it is almost certain that the interfering state will make an especial effort to let the other state pay the penalty of its temerity.

Halleck perceives that a menace of force may constitute an interference. He says: "Armed intervention, [i.e., forcible interference] on the contrary, consists in threatened or actual force, employed, or to be employed, by one state in regulating or determining the conduct or affairs of another." (Halleck: International Law, ch XIV, § 12, p. 335.)

But so keen an observer as Stapleton would make the actual employment of force the criterion of interference. This is to confuse the means with the purpose, as so frequently occurs. He says:

''Of all the principles in the code of international law, the most important - the one on which the independent existence of all weaker states must depend - is this: No state has a right FORCIBLY to interfere in the internal concerns of another state, unless there exists a casus belli against it. For, if every powerful state has a right at its pleasure forcibly to interfere with the affairs of its weaker neighbors, it is obvious no weak state can be really independent. The constant and general violation of this law would be, in fact, to establish the law of the strongest.

"This principle as here laid down is the true principle of 'non-intervention' [non-interference]. But by leaving out the word forcible, and by then applying it, without limitation or explanation, much confusion respecting it has arisen. "It is essential, therefore, that it should be correctly defined; for, taking it in the broad sense in which it is sometimes taken, as forbidding all kinds of intervention [interference] in the internal affairs of neighboring states, it is neither defensible in theory nor harmless in practice." (A. G. Stapleton: Intervention and Non-intervention, London, 1866, p. 6.)

Professor Kebedgy (Intervention, p. 9) with a similar opinion, quotes Kant's Essay on Perpetual Peace to the effect that: "No state should forcibly mix in the constitution and government of another state."

As regards the statement that the actual use of force is not an essential idea of interference, we cannot do better than quote Sir Robert Morier's answer to the Duke of Cambridge, who did not see how Great Britain could intervene to stop the Franco-German war without an army: "I ventured to observe that there were certain moves on the political chessboard which necessarily led to checkmate, and that good players did not go on playing after these were executed." (Memoirs of Sir Robert Morier, II, 153.)

Russia interfered at Olmütz (1850) just as surely as if force had been employed. France, Germany and Russia interfered between Japan and China in 1896, just as surely as if the ships of war assembled in Chinese waters had belched forth their fire.

Pellegrino Rossi states this principle clearly, although his definition of interference is restricted to internal affairs, and does not include intermeddling in foreign relations. He says, "There is said to be intervention [interference] when a state mixes in the internal affairs of another state for the purpose of modifying its political system. That the intervening [interfering] state acts through menace, through invasion, or through any other means of constraint, and whether upon its own initiative, or upon the request of one of the parties that divide the state where the intervention [interference] takes place, is of slight importance." (Translated from Rossi's article on Intervention in Archives de droit et de législation, Vol. I, (1837), p. 357.)

Frederick de Martens says: "Intervention [interference] takes place by means of diplomatic notes or by force of arms" (Bergbohm's German Edition, Vol. I, p. 299).

De Floeckher writes: "Intervention [interference] exists from the moment that notice of the demand is given to the state upon which it is made, and it is not necessary that it be enforced for the state often yields to the pressure brought to bear upon it." (de Floeckher: Intervention, p. 4, cf. also Geffcken in Holtzendorff's Handbuch, Vol. IV, p. 131-2.)

Professor Berner also perceives that the actual use of force is not essential to constitute intervention. (Berner article on Intervention in the Deutsches Staats-Worterbuch (1861), Vol. V, p. 341.)

⁴⁹ Some of those who limit intervention to internal affairs are Rossi: Intervention, Archives de droit, (1837), p. 357; H. von Rotteck: Recht der Einmischung, 1845, p. 17; Bernard: Intervention, 1860, p. 1; Carnazza Amari; Non-intervention, in the Revue de droit international (1873), Vol. V, p. 353; Rougier : Les Guerres Civiles, 1903, p. 328. Among the authorities who expressly include external affairs as well as internal are Vidari: Intervento, 1868, p. 5; Kebedgy: Intervention, 1890, p. 37; The Standard Dictionary; Cavalieri: Intervento, 1913, p. 8.

⁵⁰ The action we are discussing does not include what we have called self-help (see above § 1), for self-help is really cooperation.

⁵¹ As examples of violations of sovereignty which are currently spoken of as interference, we may take the case of Crampton, the British Minister in the United States, who, at the time of the Crimean War, was given his passports for violating American neutrality and sovereignty in inducing recruits to proceed to Canada for enlistment in the war against Russia. (See Crampton's Case, Stowell and Munro: International Cases, Vol. II, pp. 278-285.)

⁵² Another British Minister, Lord Sackville West, in 1888 was peremptorily dismissed by Grover Cleveland because he was shown to have advised a correspondent, supposedly of British origin, to vote for the reelection of Cleveland. (Stowell and Munro: International Cases, Vol. 1, p. 10.) Such a serious transgression as this was a violation of international law, and not merely a disregard of international comity or courtesy.

⁵³ An illustration of such violation or contempt of the sovereign authority of the receiving state was the action of Ambassador Bernstorff, or his agents, in publishing a warning in the newspapers, advising passengers not to embark upon the Lusitania. Of course such a warning could properly emanate from no government but that of the United States. It does not benefit the cause of peace or national honor to tolerate such conduct on the part of a foreign diplomat.

⁵⁴ Col. Repington relates the incident of the former Kaiser's letter to Lord Tweedmouth, dated February 2, 1908, in which William II tried to allay the apprehension caused Great Britain by Germany 's naval plans. Col. Repington was probably justified in considering this as an attempt to influence in German interest a British Minister at a most critical moment before the estimates for the Navy were coming on in Parliament. The Kaiser's action was severely criticized in the Times, but the English press in general seems to have been inclined to minimize the matter. (Col. Charles A. Repington: Vestigia, London, 1919, p. 284-292.)

The same writer tells how, because he criticized certain well-known defects of the German Army, the Kaiser, "ordered his new Ambassador, Baron Marschall von Bieberstein, to see Colonel Seely, then Secretary of War, and to demand my dismissal from the position of editor" of The Army Review, an organ of the British General Staff. "The Ambassador," writes Col. Repington, "received a very crisp answer for his impudence, but never knew how he had scored off me. My intention had been to give up this work when the Staff journal was in going order, and as this moment had come I wished to pass on the work to some one else. But it was impracticable for Colonel Seely or for me to submit to German dictation, and therefore I had to remain on for six months or so, much against my will."

⁵⁵ "It was customary," writes Rougier, "in the 16th and 17th centuries to stipulate in peace treaties that in the event that one of the contracting states should find itself involved in a rebellion, the other states would refuse to the insurgents every manner of succor; cease all commerce with them; and deliver them into the hands of their sovereign." (A. Rougier: Guerres civiles, p. 374 ; refers to De Olivart : Del reconocimiento de belligerancia y sus effectos immediatos, Madrid, 1895, p. 4; for interesting details relative to the Anglo Spanish treaty of November 15, 1630, and the Franco-Spanish treaty, Pyrenees, 1659.)

As similar in principle, we may refer to the treaty of March 15, 1834, between Austria, Prussia and Russia for the extradition of political offenders, including those who had risen against their governments. (British State Papers, vol. 53, 1862-3, p. 872-3; cf. ibid, p. 871-2.)

⁵⁶ Geffcken quotes Guizot as saying that the French intervention in Spain, "...in spite of its success, brought no good, either to Spain or to France. It delivered Spain over to the incapable and incurable despotism of Ferdinand VII, without putting an end to revolutions, and substituted the ferocities of the absolutists in place of the anarchists. Instead of the maintenance of French influence beyond the Pyrenees being assured, it was injured and destroyed." (Translated from Holtzendorff: Handbuch des Voelkerrechts, vol. IV, § 143.)

Russia's interference to assist Austria to crush the Hungarian uprising had much to do with arousing public opinion against the intermeddler, who was punished at Sebastopol. In this case, it might be said that Russia interfered to serve a national interest in assisting to suppress an uprising in close proximity to her Polish provinces.

⁵⁷ See Bluntschli: Voelkerrecht, § 474.

⁵⁸ Bluntschli contradicts what he has said ( 474) and falls into error by declaring that "intervention is authorized when the state itself either requests a friendly power to intervene or accepts an offer to do so." (Translated from Lardy 's French edition, § 475.)

But Hall remarks: "As interventions, in so far as they purport to be made in compliance with an invitation, are independent of the reasons or pretexts which have been already discussed, it must be assumed that they are based either on simple friendship or upon a sentiment of justice.

If intervention on the ground of mere friendship were allowed, it would be idle to speak seriously of the rights of independence. "Further along, Hall declares that if the intervention "be directed against rebels, the fact that it has been necessary to call in foreign help is enough to show that the issue of the conflict would, without it, be uncertain, and consequently that there is a doubt as to which side would ultimately establish itself as the legal representative of the state." (International Law, 4 ed., § 94, p. 307.)

⁶⁹ See discussion above, under § 9.

⁶⁰ See Sheldon Amos : Remedies for War, p. 265-7 ; W. A. Phillips: The Confederation of Europe, p. 218-233; and it was to oppose this broad assertion of a right to interfere that Castlereagh issued his famous circular of January 19, 1921.

⁶¹ Lord Liverpool's government in 1815 objected to the introduction of the words 'souverain légitime' [legitimate sovereign] into a draft of a treaty with the restored government in France." (Bernard: Non-intervention, p. 15.)

⁶² In answer to Lord Grey's speech in the House of Lords, February 19, 1821, attacking the government for interfering to assist the King of Naples, Lord Liverpool denied that his government had interfered, or that ground for interference had been given, (referring evidently to forcible interference), but declared that the circumstances made "indispensably necessary that the government should publish its disapproval of those proceedings. In the first place that revolution was effected by a military mutiny; and, in the next, the Spanish Constitution was adopted under the most extraordinary circumstances." (Hansard's Debates, 2nd Series, vol. 4, p. 764.)

⁶³ See W. A. Phillips: The Confederation of Europe, p. 234f.

⁶⁴ Metternich protested, in September, 1830, against "the presumption of the French Government for its own convenience, to set up a new law of nations, which was nothing more than a complete overturning of all the rules which had until then guided the diplomacy of European states." (Lingelbach: Intervention in Europe, in Annals of the American Academy, Vol. 16, (1900), p. 14, citing Geffcken in Holtzendorff 's Handbuch des Volkerrechts, Vol. IV, p. 143.) But even before this, action by France, England had opposed the doctrine of legitimacy and restoration.

⁶⁵ Three days later, Lord Russell seems to have considered the convention less offensive (see British State Papers, 1862-3, vol. 53, p. 814.) In reference to this convention, it is interesting to read the remarks of Representative Waldeck in the Prussian Chamber, February 18, 1863, in which he severely criticized Bismarck's interference to assist Russia in suppressing the Polish insurrection. (British Foreign State Papers, 1862-3, vol. 53, p. 793-4.)

In his despatch of February 21, 1863, the British Minister at Berlin especially drew Lord Russell's attention to Representative Waldeck 's speech, "first, because it has excited special attention, and has highly exasperated the semi-official organs of the Government; and secondly, because it fairly represents the feelings of a great portion of the Liberal party in regard to the proposed intervention.

"To mark still more its sense of what the exigencies of the present moment demand, the Party of Progress has drawn up a resolution to the effect that 'the House do declare that the interests of Prussia require that the Government should abstain from rendering any assistance, or showing any favor either to the Russian Government or to the insurgents, and that consequently neither of the parties engaged be admitted upon Prussian territory without being previously disarmed.'

"This resolution has been submitted to a committee of 21 members, and will be brought before the House as soon as the committee have drawn up their report upon it.

"The language of the Liberal press is unanimous in condemning the policy of the Government, but it is so much an echo of what has been said in the Chamber that a reproduction

of it would only be a repetition of what is given in the enclosed report.

"A circular addressed by the President of Police at Breslau to the Silesian press is not uninteresting as showing the possible proportions which the intervention may take. It warns the newspapers against giving any indications of the movements of the troops, saying that all the advantages of sudden concentration would be thereby lost, 'whether such would be required for the defence of the frontier or for direct action in the neighboring State ("zu einem directen auftreten im Auslande").

"It is further worthy of notice, in connection with this subject, that Thorn and other important towns situated in the Polish districts have sent up deputations, principally composed of Germans, to protest against the rumors put about to the effect that the districts from which they come were disturbed, or that the inhabitants apprehended danger." (British Foreign State Papers, 1862-3, vol. 53, p. 789-790.)

⁶⁶ Lord Lyons, in a letter of March 26, 1861, relates how "Mr. Seward asked whether England would not be content to get cotton through the northern ports, to which it could be sent by land." (Lord Newton: Lord Lyons, I, 1913, 31.) Notwithstanding Lord Lyons 's objection, five days later Mr. Seward told him : "I differ with my predecessor as to de facto authorities. If one of your ships comes out of a southern port without the papers required by the laws of the U. S., and is seized by one of our cruisers and carried into New York and confiscated, we shall not make any compensation." (Ibid, 33.)

Notwithstanding Seward 's insistence, Great Britain recognized the belligerency of the Confederate States. Holland (Studies in International Law, p. 138-140) gives the following instances of acquiescence in blockade without such recognition: Russia 's blockade of Circassia in 1826, and Turkey's blockade of Crete, 1866-68, and also of 1897. The same authority says (ibid, p. 145) : "Third Powers may more fairly be called upon to make this sacrifice when the blockade has a high political object, as in a case of intervention, or is a measure of self-preservation, such as the suppression of a rebellion."

⁶⁷ ". . . In order to prevent the giving of aid to the enemies of the government at the City of Mexico, the Congress of the United States adopted a joint resolution empowering the President to stop the exportation of arms and munitions of war. President Taft approved this resolution on March 14, 1912, and on the same day put it into effect. The export of military supplies for the Mexican government continued to be lawful." (J. B. Moore: The Principles of American Diplomacy, 1918, p. 216.)

Yet a few months previous [January 25, 1911], Hon. Wilbur J. Carr, writing for Secretary Knox, had set forth the principles in regard to the export of contraband. "You should in this connection have also clearly in mind that it is not illegal, being against neither the international laws of neutrality nor the rules of our neutrality statutes, to trade in arms and ammunition during a war or during a revolution; that trade in such materials is merely trade in contraband of war; and that the persons engaging therein are subject to no other penalty than the confiscation of the materials in which they are trading. Therefore, so long as our customs laws are complied with in the matter of the commercial shipment of arms and ammunition into Mexico it is not clear in what way we may legally interfere with traffic in such materials on this side of the border. If the Mexican Government desires to exclude such materials from her territories, it is clearly her duty and not ours to accomplish such exclusion." (Foreign Relations, 1911, p. 399. Cf. Ibid, 415-6; 433.)

To reconcile this conflict of opinion and disparity of practice, it is necessary to remember what has been said above under § 10, relative to the supervision of less developed states. The United States cannot always apply the rules of international law in Mexico as if she were dealing with a completely independent state instead of with one subject to a certain supervision.

⁶⁸ In the New York Sun (April 17, 1920), it was reported from Washington that the United States Government had refused to allow Carranza to transport troops across United States territory to attack rebels in Sonora. The dispatch stated: "The precedent established when troops were rushed

across American territory for the purpose of defeating Villa at Agua Prieta will not be followed."

Relative to the above incident, I have prepared the following account from my notes of documents read to me, and of verbal statements made at the Department of State, in May 1920, but I have not yet received a copy of the documents which I requested:

October 19, 1915, the Mexican Government asked permission for transit from Laredo and Eagle Pass to Agua Prieta, Sonora, via Douglas "for the purpose of affording fuller protection to foreigners and natives in the northern part of the State of Sonora, now menaced by certain forces of Francisco Villa, and to make it an easier task for my government to defend that section of the republic." October 22, the United States acknowledged the Mexican note and gave permission for a group of four or five thousand men, unarmed, arms and ammunition to be sent as baggage, and a small detachment of American troops to act as an escort.

⁶⁹ For a brief account of these events, see J. B. Moore: Principles of American Diplomacy, p. 227f.

⁷⁰ Every generation in European history has had its deposed monarchs to show how ineffectual was the sentimental doctrine of legitimacy and the related constitutional principle of the divine right of kings to prevent the recognition of the de facto revolutionary governments.

Nevertheless we find many instances of the persisting strength of this idea of legitimacy, as when the Dutch and French gave asylum to Charles II and his adherents. Perhaps on the same grounds the Dutch were not very active in bringing to punishment the murderers of Cromwell's ambassador, and shamelessly allowed the regicide judges to be extradited after the restoration of Charles II. (See Sir George C. Lewis: Extradition, p. 48 note.) Cromwell's Ambassador to Sweden was instructed to protest (1682) against the reception of the representative of the Stuart Pretender. (John Thurloe: State Papers, vol. I, p. 228.)

According to a Berne despatch of July 27, 1920 (New York Times, July 29, 1920), the socialist press of Switzerland condemns the government for the favorable treatment accorded royal personages in refuge. The dispatch states that a government report discloses that "Switzerland has two laws for strangers desiring to enter and dwell within her gates one or royal and princely personages and their suites, and another for ordinary individuals."

For the purpose of historical investigation and the critical analysis of the instances of interference, this division of assistance into (1) Suppression, (2) Restoration, (3) Reintegration, should prove convenient.

⁷¹ "No state," declares Theodore D. Woolsey, "is authorized to render assistance to provinces or colonies which are in revolt against the established government. For if the existence and sovereignty of a state is once acknowledged, nothing can be done to impair them ; and if the right of interference, in favor of liberty for instance, be once admitted, the door is open for taking part in every quarrel." (Introduction to International Law, 1st ed., 1860 41, p. 89.)

It is not necessary to refer to the host of authorities that have reiterated the illegality of interference in internal questions. Sir Henry Maine (quoting Mr. Hall) remarks: "'Thus with regard to the first power or right which is alleged to reside, by the nature of the case, in a sovereign state, the power of organizing itself in such a manner as it may choose, it follows that such a state may place itself under any form of government that it wishes, and may frame its social institutions upon any model. To foreign states, the political or social doctrines which may be exemplified in it, or which may spread from it, are legally immaterial.'

"This is correct law, and in our day I do not doubt that to most minds it would seem plain that, the condition of Sovereignty being taken for granted, these rights so stated follow. But, as a matter of fact, confining ourselves to this branch of state powers, none have been more violently denied or disputed; and if they were preserved it is far less owing to their logical connection with the definition of state Sovereignty, than from the fact that, from the very first, the position that they exist has been plainly stated by the international lawyers. And the fact that these rights have been preserved is a signal tribute to the importance of International Law. It happens that the long peace which extended from 1815 to 1854 was, both at its beginning and at its end, all but broken up by the denial of these simple rights of which I have been speaking." (Sir Henry S. Maine: International Law, 2nd ed., p. 61.)

Even when France came to the help of the American Revolutionists, "...the French Manifesto states that the King of France neither was, nor pretended to be, a judge of the disputes between the King of England and his colonies; and that he took up arms to avenge his injuries, and to put an end to the tyrannical empire which England has usurped, and pretends to maintain, upon the ocean." (Annual Register, vol. 22, p. 390, quoted by Senior: Edinburgh Review, April,

1843, vol. 156, p. 337.)

John Stuart Mill, in a letter to Pasquale Villari, June 30, 1857, wrote: "The English Government will never aid a people to overthrow its government, however detestable it may appear. You have seen how the English Government did not oppose French intervention in Rome, Russian intervention in Hungary, and even during the war against Russia, it was not willing to stir up Poland. Is that not conclusive?" (Freely translated, Mill's Letters, vol. I, p. 195.)

Mill's opinion is borne out by Seward's plaint in his instructions to Minister Motley dated July 14, 1863: "If your speculations concerning the Polish revolution are correct, as I believe they are, then it will be seen that a location within the immediate sphere of European politics, like that of Russia, has some advantages as well as some disadvantages. 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. The Poles are not yet recognized by either France or Great Britain as a belligerent. They talk of intervention in behalf of Poland, but they do not act."

(Diplomatic Correspondence, 1863, Part II, p. 926.)

In his speech on the recognition of the independence of the revolted Spanish Colonies, Sir James Mackintosh, before the House of Commons, June 15, 1824, said: "With respect, indeed to the State Papers laid before us, I see nothing in them to blame or to regret, unless it be that excess of tenderness and forbearance towards the feelings and pretensions of European Spain which the Dispatches themselves acknowledge." (Miscellaneous Works of Sir James Mackintosh, vol. Ill, p. 439.)

In the case of Cuba, where strife was almost chronic, the United States pushed forbearance to an extreme limit.

⁷² The misery which the blockade of the Southern ports of the Confederacy caused the cotton spinners of Manchester was not considered by the British Government as a sufficient ground for intervention.

⁷³ During the Sonderbund conflict in Switzerland (1846), which arose in part over the question of the expulsion of the Jesuits, France and the reactionary powers espoused the cause of the revolting cantons and threatened to impose upon Switzerland the arbitration of the Pope. This support of the revolt was so patently an unjustifiable interference in the internal affairs of Switzerland that Lord Palmerston was able to thwart it by diplomacy alone until Switzerland had overthrown the Sonderbund. This is a striking example of the respect paid to international law in a case where the States interfering in violation of law were much more powerful than it defenders. See Ashley's Life of Palmerston, vol. I, pp. 5-16. Cf. also the somewhat prejudiced account in Sir Robert Morier's Memoirs, vol. I, pp. 38-60.

⁷⁴ See Westlake: International Law, vol. I, p. 57-8.

⁷⁵ As long as the sovereign state is conducting military operations to regain its supremacy over the territory recognized as belonging to it under the law of nations, there is, as we have said above, a presumption against the interference of any state, even on the grounds of protecting its interests, but when the sovereign state seems exhausted, and is unable or unwilling to prolong its efforts to reestablish its authority, the presumption in its favor is lost, and those states whose interests are affected by this unfortunate condition of affairs are justified in recognizing the revolutionary de facto government. Funck-Brentano and Sorel discuss the question of premature recognition: ''A nation which revolts against the state of which it is a part, and wishes to establish an independent state, engages in a civil war, and places itself outside of the public law of the state. A foreign state which intervenes [interferes] in support of this nation commits an act

of war against the state to which it belongs, and steps outside the law of nations in time of peace. If interventions [interferences] of this kind, such as that of France in support of the United States in the reign of Louis XVI, appear legitimate, it is because instead of considering them in relation to international law, they are regarded only from a political viewpoint. Such an act, in accord with a wise and generous policy, is seen to have produced beneficial results. But this policy is none the less contrary to the principle of international law in time of peace, and if good resulted, it was only after a long and bloody war." (Translated from Funck-Brentano and Sorel: Precis du droit des gens, p. 221.)

⁷⁶ Upon the ground of anarchy, intervention has been justified by many writers. Professor Strauch, after expressing the opinion that no state is justified in intervening in the case of a revolution in another state, declares that international law has no concern with the form of government each state may adopt, but he considers that the government, whatever its form, must be able to preserve order and fulfil its obligations. "When conditions of anarchy prevail," Professor Strauch declares, "other states have an undoubted right to intervene without waiting for an invitation." (Freely translated from Strauch 's article on Intervention, in Bluntschli's Staatsworterbuch, vol. II, 1871, p. 278.)

Although the discussion of intervention in civil wars by Funck-Brentano and Sorel (Précis du droit des gens, p. 222) is not a juridical piece of reasoning, it is interesting and suggestive. These authors consider that a civil war puts an end to all authority, and that "in this condition of anarchy, foreign states recognize no other law than that of necessity." If, according to these authors, they find one of the parties capable of organizing a government, they recognize it, or they may act as their interests and obligations require.

⁷⁷ See Mamiani: Rights of Nations; or, the New Law of European States applied to the Affairs of Italy, p. 40-144, where the right of intervention in a civil war is denied, but is permitted to help a subject people, as in the case of the Dutch against the Spaniards; the Swiss against Burgundy, etc. This alleged ground of intervention has been considered under § 8 (b).

⁷⁸ See Bluntschli: Volkerrecht, 477; Halleck: International Law (1861), p. 339, ch. XIV, 20. Halleck refers to Phillimore, vol. I, CCCXCV, but the latter 's discussion is confused.

After Macintosh has stated (History of the Revolution of 1688, p. 301-2), with charm of style and accuracy of reasoning, the grounds which justify a people in rising against a tyrant, he adds: "Whenever war is justifiable, it is lawful to call in auxiliaries." But it does not necessarily follow that the appeal will justify another state in intervening; even though revolution be justifiable by the test of certain principles, it remains a matter to be determined by the people of each state, and does not concern international law, except when its course is marked on either side by tyranny and oppression so great as to justify intervention on grounds of humanity.

The acts of James II were sufficient to justify revolution, but it seems hardly possible to regard them as grounds for humanitarian intervention by foreign states, and unless we can find another justification, we must consider the invasion of William of Orange as an interference, contrary to the law of nations.

Vattel writes: "But if a prince by violating the fundamental laws, gives his subjects a lawful cause for resisting him, if, by his insupportable tyranny he brings on a natural revolt against him, any foreign power may rightfully give assistance to an oppressed people who ask for its aid." (Vattel, bk. II, § 56, Carnegie Translation, p. 131.)

When the conditions are such as afford grounds for humanitarian intervention, an appeal for foreign aid may be helpful to justify the intervening state by securing public sympathy and by showing the real situation.

This is the real significance of the statement by Vattel and certain other authorities that intervention in a civil war is justifiable when one of the parties appeals for support. See H. von Rotteck: Einmischungsrecht, p. 11 (No. 5); Martens: Précis, § 74; Heffter: Volkerrecht, § 46. In those instances when the appeal for intervention is not justified upon the ground of humanity, Hall is perfectly correct in declaring: "When intervention so undertaken is directed against the existing government, independence is violated by an attempt to prevent the regular organ of the state from managing the state affairs in its own way." If we except the instances in which humanitarian intervention is justified, we must agree with his concluding statement: "If, again, intervention is based upon an opinion as to the merits of the question at issue, the intervening state takes upon itself to pass judgment in a matter which, having nothing to do with the relations of states, must be regarded as being for legal purposes beyond the range of vision." (International Law, 4 ed., § 94, p. 306-7.)

"Incitement to revolt as a means of overcoming the resistance of a transgressor cannot here be given the attention which its importance merits, and must be reserved for a volume now in preparation relative to the means of enforcing international law.

It may well be that the salutary principle of limiting acts of hostility to the period of a declared war should prevent all law-abiding states from committing certain overt acts such as the shipment of arms to conspirators, and the furnishing of other supplies.

"It is in violation of the Law of Nations," writes Vattel, "to call on subjects to revolt when they are actually obeying their sovereign, although complaining of his rule." (Vattel, Bk. II, § 56, Carnegie translation, p. 131.)

France furnished the American Revolutionary emissaries with money and supplies before she openly committed the hostile act of recognizing the independence of the Revolutionists while the conflict was still in doubt.

⁸⁰ Other references are : Vattel, Bk. II, 50 ; Bk. Ill, 26. Professor T. E. Holland writes: "The right of a state to exist in safety calls for no remark. Its violation or threatened violation gives rise to the remedial right of self-preservation." (Holland: The Elements of Jurisprudence, 4 ed., 1888, p. 328.)

Probably the writers who appear to controvert the right of intervention for prevention were not objecting to the anticipation of an attack actually in preparation, but only wished to deny the alleged right of attacking an innocent state on the ground that it was necessary for self-preservation; for example, H. von Rotteck: Recht der Einmischung, 1845, p. 24-5. (See discussion of "Necessity" in the following section 16.)

⁸¹ But this same eminent authority discloses the little juridical value which he attaches to this definition when he tells us that "every nation has an undoubted right to provide for its own safety, and to take due precaution against distant as well as impending danger," and continues: "The right of self-preservation is paramount to all other considerations. A rational fear of an imminent danger is said to be a justifiable cause of war." (Kent's Commentaries, 12 ed., vol. I, p. 23. Kent refers to Huber, De jure civitatis, lib. 3, c. 7, sec. 4.)

⁸² Hall expresses the same idea less concisely: "If the safety of a state is gravely and immediately threatened either by occurrences in another state, or aggression prepared there, which the government of the latter is unable, or professes itself to be unable, to prevent, or when there is an imminent certainty that such occurrences or aggression will take place if measures are not taken to forestall them, the circumstances may fairly be considered to be such as to place the right of self-preservation [prevention] above the duty of respecting a freedom of action which must have become nominal, on the supposition that the state from which the danger comes is willing, if it can, to perform its international duties." (Hall: International Law, 4 ed., § 11, p. 57.)

83 Lawrence writes: "Governments constantly submit to small inconveniences rather than resort to hostilities; and an evil that is not sufficiently grave to warrant a recourse to the terrible arbitrament of battle is not sufficiently grave to warrant intervention. (T. J. Lawrence: Principles, 4 ed., 1910, § 65, p. 128.)

Creasy says: "We may add that, inasmuch as in most cases 'probability is a man's guide of life' (Bishop Butler), probabilities must be studied with care proportioned to the importance of the subject." (Creasy: First Platform of International Law, § 289, p. 283.) Creasy supports this statement by summarizing the words of Vattel which, as written by the latter were: "A nation's whole existence is at stake when it has a neighbor that is at once powerful and ambitious. Since it is the lot of men to be guided in most cases by probabilities, these probabilities deserve their attention in proportion to the importance of the subject-matter; and, if I may borrow a geometrical expression, one is justified in forestalling a danger in direct ratio to the degree of probability attending it, and to the seriousness of the evil with which one is threatened. If the evil in question be endurable, if the loss be of small account, prompt action need not be taken ; there is no great danger in delaying measures of self-protection until we are certain that there is actual danger of the evil. But suppose the safety of the state is endangered; our foresight can not extend too far. Are we to delay averting our destruction until it has become inevitable?" (Vattel, Bk. Ill, § 44, Carnegie translation, p. 249.)

⁸⁴ Col. Repington, in his "Vestigia," 1919, p. 304-7, refers to his articles in the London Times of January, 1911, in which he discussed the transference of the German base of concentration from the Metz and Strasbourg line in the direction of the Belgian frontier. In view of the powerful German defenses on the French line, and the German tactics of envelopment, Colonel Repington said that it was apparently clear that "the axis of the future attack on France had been shifted to the north, and that a great, if not the main attack would be based upon the line Cologne-Coblentz, and that the neutrality of Belgium was threatened by this new departure of German strategy."

He considered that his reading of German intentions was supported by the German theories of enveloping attack, and by the practice of German generals at maneuvers. Colonel Repington also states: "I also showed that General von Falkenhausen in a book which he had recently published, had calmly assumed as a matter of course that the territory of both Belgium and Holland would be violated by the contending armies, and that this general had placed his 1,250,000 men on a front of 250 miles, which was again much in excess of the length of the French frontier." (Lt. Col. Charles a Court Repington: Vestigia, 1919, p. 306.)

⁸⁵ See Stowell's The Diplomacy of the War of 1914, p. 184f., where this matter is fully discussed. Many of the writers on the War of 1914 have failed to understand the consequences of what we might call unequal mobilization.⁸⁶

This statement is not intended, by any means to defend the justice of Germany's declaration of war against Russia. As I have shown in my study of the events preceding the outbreak of the war, Germany gave Russia good and sufficient cause to believe that she was making preparations for war, and that she intended to force the issue. Consequently, Russia was fully justified in mobilizing, and Germany was entirely to blame for so acting as to give Russia just cause for recourse to preventive measures.

From recent disclosures of Russian documents, we learn how the Tsar was influenced by his love of peace and his confidence in the German Emperor to give the insensate order that mobilization be countermanded after it had once begun. Any intelligent and patriotic Russian officer must have felt amply justified in disobeying such a command issued by a sovereign of the poor Tsar's intelligence.

⁸⁶ A good illustration is furnished by the Russo-Japanese War of 1903-4. Japan did her best to avert a conflict, but Russia was uncompromising, and began to dispatch her forces to the Far East. Under the circumstances, Japan was justified in commencing by way of preventive war the attack which was thrust upon her. She was not, however, entirely blameless in doing so without a clearer statement of her intention. For a fuller consideration of this particular point, see Stowell

and Munro: International Cases, vol. II, p. 26-34.

A similar situation arose when President Roosevelt dispatched the American fleet on its tour round the world. There was, of course, no hostile intention in this act, but the result would be to place our ships in the Pacific. Japan decided at once that she would not make an issue of the California difficulty, and relations improved.

As I write, the question of the union of the American fleet in the Pacific is alluded to in the press. When this shall have been accomplished, it is evident that Japan's relative position in the Pacific will be less than it was before. If relations were seriously strained between the two countries, this act, although it is legitimately related to the necessities of American defense, might precipitate a conflict.

When President Kruger sent his ultimatum to Great Britain, he was probably of the opinion that if he delayed, Great Britain would increase her forces in South Africa, and that the Transvaal Republic would be obliged to fight at a greater disadvantage, or accept such terms of settlement as the British Government might be willing to offer.

"With reference to the news of the disaster of Isandlwana in the Zulu War, which had recently reached London, Lord Blachford, in a letter dated February 26, 1879, wrote:

"My expression about being at war 'with everybody everywhere' was a rough and unjust one, as is sometimes the case when one thing leads you to give vent to a pent-up impatience about another.

"What was in my mind was this : In Natal, in Afghanistan, in Turkey we are always assuming - at least there are a quantity of people who assume that, because this or that state or potentate is an inconvenience to us, making us keep more troops or ships than we like, or unsettling trade, or threatening the balance of power, that is at bottom a sufficient reason for trying to disable them, and the only question is one of waiting for a pretext. This I take it was the old theory of foreign policy, which I, for one, flattered myself was exploded or nearly so, and it is one which, if carried out to its full extent, would keep us engaged in disabling everybody, the U. S. because they will evidently one day threaten our naval supremacy, Prussia, Russia, France, with their great armies and ambitious objects; Italy and Greece with their prospects with regard to the Mediterranean trade, and so on.

And the revival of this kind of Chauvinism, jingoism, or whatever you choose to call it, which is and always has been the great enemy to the peace of the world, keeps me, I confess, in that state of disgust which one feels at a thing which you find to your surprise is not too stupid to be formidable, like what I suppose Cobdenites feel towards the resuscitation of protection.

But of course I must admit that the question is one of degree, and that there is a point at which you must take measures to clip the wings of a neighbor who is at once powerful and ill-intentioned." (Letters of Lord Blachford, edited by G. E. Marindin, 1896, p. 393.)

Sir George Cornewall Lewis, answering a letter from Lord Palmerston, takes up the same idea which Sir Robert Peel had expressed in the House of Commons, (see Morley's Life of Cobden, p. 358), and argued that it was not a wise matter of policy to attempt to insure against all these dangers by counter-armament. Although the discussion in these letters was relative to a question of national policy, its broad international bearing justifies me in reproducing them here.

"November 22, 1860.

"My dear Lewis,

"You broached yesterday evening what seems to me a political heresy, which I hope was only a conversational paradox, and not a deliberately adopted theory. You said you dissented from the maxim that prevention is better than cure, and that you thought that, instead of trying to prevent an evil, we ought to wait till it had happened, and should then apply the proper remedy. Now I beg to submit that the prevention of evil is the proper function of statesmen and diplomatists; and that the correction of evil calls forth the action of generals and admirals. Evils are prevented by the pen, but are corrected by the sword. They are prevented by ink-shed, but can be corrected only by blood-shed. The first is an operation of peace ; the second, the action of war.

"It seems to me to be no valid argument to say that measures taken to prevent an evil may by possibility lead to war, when it can be shown to be far more probable that the evil, if it happens, will lead to that result.

"There are endless instances of serious conflicts which might have been prevented by timely vigor and negotiation, and an equal number of cases in which timely vigor and activity have averted dangerous consequences. If the Duke of Wellington 's Government, in 1830, had not been swayed by the same timidity which prevailed in the Cabinet yesterday, the French would not now have had Algeria a possession which, whenever we have a war with France, will give us trouble and cause us much annoyance. If Lord Aberdeen's Government had shown less timidity when the Russians prepared to invade the Danube Principalities, it is pretty certain that we should not have had the Russian war; but it is needless to multiply examples to prove what appear to me to be self-evident propositions.

"Yours sincerely,

"PALMERSTON."

"Kent House, November 23, 1860.

"My dear Lord Palmerston,

"As a medical maxim, it is true universally that prevention is better than cure; but it seems to me that this maxim must be applied with discretion in political, especially in foreign, politics. If the evil is proximate and certain, or highly probable, no doubt a wise statesman will, if he can, prevent it. But with respect to remote and uncertain evils, the system of insurance may be carried too far. Our foreign relations are so numerous and so intricate, that if we insure against every danger which ingenuity can devise there will be no end of our insurances. Even in private life it is found profitable for those who carry on operations on a large scale not to insure. One thing, according to the received though not very precise saying, insures another. A man who has one or two ships, or one or two farmhouses, insures. But a man who has many ships, and many farmhouses, often does not insure.

"We keep in every country of the world a paid agent, often of great activity and intelligence, whose time in general is only half employed, and whose business it is to frighten his own government with respect to the ambitions and encroaching designs of foreign governments. I am not seeking to undervalue the services of diplomatic and consular agents. I know that, on the whole, they are of great benefit to the country which employs them; but it is natural and proper that they should keep a sharp look-out for the machinations of foreign governments, and that their imagination should sometimes be stronger than their reason. If their advice was listened to, we should be perpetually taking expensive precautions against remote and problematical risks.

"Generally, I think that our foreign policy is too timorous; that we are apt to be scared by bug-bears, and to underrate the power of England, and the fear of it entertained by foreign nations. I do not believe that the possession of Algeria by France is any real disadvantage to us. It acts as a constant drain on the military and financial resources of France, and in the event of a war would necessarily fall into our hands, if we were able to obtain and maintain the empire of the sea. The possession of Egypt and Malta did nothing for France in the late war.

"If an evil is certain and proximate, and can be averted by diplomacy, then undoubtedly prevention is better than cure. But if the evil is remote and uncertain, then I think it better not to resort to preventive measures, which insure a proximate and certain mischief. The evil may probably never occur ; the cure may perhaps be simple and inexpensive, and may not imply hostilities. It seems to me that our foreign relations are on too vast a scale to render it wise for us to insure systematically against all risks; and if we do not insure systematically, we do nothing."

"Believe me,

"Yours very sincerely,

"G. C. LEWIS."

(Ashley's Life of Palmerston, vol. II, 1876, p. 331-4.)

The same opinion was held by Cobden, who, Morley writes, "opposed war, because war and the preparation for it consumed the resources which were required for the improvement of the temporal condition of the population. Sir Robert Peel had anticipated him in pressing upon Parliament the danger to European order arising from military expenditure. Heavy military expenditure, he said, meant heavy taxation, and heavy taxation meant discontent and revolution. That wise statesman had courageously repudiated the old maxim, Bellum para si pacem veils. A maxim that admits of more contradiction, he said, or one that should be received with greater reserve, never fell from the lips of man. What is always still more important, Peel was not afraid to say that it is impossible to secure a country against all conceivable risks. If in time of peace you insist on having all the colonial garrisons up to the standard of complete efficiency, and if every fortification is to be kept in a state of perfect repair, then no amount of annual expenditure can ever be sufficient. If you accept the opinions of military men, who tell a Minister that they would throw upon him the whole responsibility in the event of a war breaking out, and predict the loss of this or the other valuable possession, then the country must be overwhelmed by taxation. It is inevitable that risks should be run. Peel's declaration was, and must at all times remain, the language of common sense, and it furnished the key to Cobden 's characteristic attitude towards a whole class of political questions where his counsels have been most persistently disregarded." (Morley: Life of Richard Cobden, 1881, p. 357-8.)

⁸⁹ A few of the authorities who express the same view that innocent growth is not a just ground of intervention are: G. F. de Martens: Precis, Bk. IV, ch. I, § 120; Klüber, Europäisches Völkerrecht § 41; Wheaton; Elements, Part II, ch. I, § 3 ; Woolsey: International Law, 1860, § 42, p. 91 ; Twiss; Law of Nations, vol. I, § 101, p. 147-8 ; Creasey: First Platform, § 163, p. 152-3.

⁹⁰ Phillimore has accurately discussed this principle:

"In all cases where the territory of one nation is invaded from the country of another, - whether the invading force be composed of the refugees of the country invaded, or of subjects of the other country, or of both the government of the invaded country has a right to be satisfied that the country from which the invasion has come, has neither by sufferance nor reception (patientiâ aut receptu) knowingly aided or abetted it. She must purge herself of both these charges, otherwise, if the cause be the feebleness of her government, the invaded country is warranted in redressing her own wrong, by entering the territory, and destroying the preparations of war therein made against her ; or, if these have been encouraged by the government, then the invaded country has a strict right to make war upon that country herself; because she has afforded not merely an asylum, but the means of hostility to the foes of a nation, with whom she was at peace. For it never can be maintained, that however much a state may suffer from piratical [sic] incursions, which the feebleness of the executive government of the country whence they issue renders it incapable of preventing or punishing, that, until such government shall voluntarily acknowledge the fact, the injured State has no right to give itself that security, which its neighbor's government admits that it ought to enjoy, but which that government is unable to guarantee.

"It must be admitted that there is a practical acknowledgment of such inability, which, as much as a voluntary confession, justifies the offended country in a course of action which would under other circumstances be unlawful." (Phillimore: International Law, vol. 1, 1854, § 218, p. 230.)

Phillimore supports his own opinion by a quotation from Burlemaqui which was itself based upon the opinion of Grotius (Bk. II, ch. xxi) and from Heineccius (Praelectiones) on the same chapter of Grotius: "Now it is presumed that a sovereign knows what his subjects openly and frequently commit; and as to his power of hindering the evil, this likewise is always presumed, unless the want of it be clearly proved."

This matter is treated by Vattel with his customary elegance of expression, and with a juridical accuracy which this author does not always display. (Vattel, Bk. II, § 72-8.)

⁹¹ See discussion of self-help § 1 above; see also Hall: International Law, 4 ed., § 84, p. 282 ; ibid, § 91, p. 299.

The same principle justifies the use of force against vessels under another flag when they are engaged in filibustering expeditions. (See Westlake: International Law, vol. I, p. 168-172, 313.)

⁹² Westlake justifies intervention in the internal affairs of another state to prevent attack and he defines attack as we have said to include all violation of the legal rights of a state or of its subjects, "whether by the offending state or by its subjects without due repression by it, or ample compensation when the nature of the case admits compensation. And by due repression we intend such as will effectually prevent all but trifling injuries (de minimis non curat lex), even though the want of such repression may arise from the powerlessness of the government in question." (Westlake: International Law, vol. I, p. 313.)

If, in place of this juridical opinion, we were to accept the extreme view of Funck-Brentano and Sorel, we should be forced to conclude that any state could make an excuse of the defects of its own legislation to avoid responsibility. These authors write: "Intervention most frequently occurs when the actions of the government of a state or of its subjects are made the basis of a diplomatic complaint. The motives for this intervention are usually attacks in the press against foreign governments, and the existence of secret societies and conspiracies. As long as a state only demands from another state the strict and loyal enforcement of the latter 's laws, it does not exceed its rights, and does not commit an act of intervention in the interior affairs of the state; it merely asks for the respect which is due it in the form which is compatible with the constitution of the state to whom the request is addressed. Intervention begins when the demanding state declares that the institutions of the foreign state are not adequate to assure the state making the representations the respect to which it has a right and the security of which it is in need, and when it demands a modification. Even in diplomatic form, such an intervention is a violation of the law of nations in time of peace. It is so clearly a violation, and is based so truly upon force and upon force alone, that there is no case in which it has been employed other than by strong states against weaker states ; nevertheless, it is the weak states which are most often likely to find it necessary to employ it: the press and secret societies of the great states are much more dangerous to the security of the small states than the journalists and conspirators in the little states are to the great." (Translated from Funck-Brentano et Sorel: Precis du Droit des Gens, p. 218-9.) This exaggerated statement is of value as an indication of the basis of the sovereign right of each state to adhere to its own institutions.

Sir George Cornewall Lewis (Extradition, 1859, p. 65) declares that "the law of England recognizes the principle of protecting a foreign government by its own municipal regulations." In footnotes, he gives several references.

Phillimore (1 ed., Vol. I, § 213, p. 227), well states the right of self-help in the case of culpable negligence and asylum for hostile expeditions, and (Ibid, § 214, p. 227) quotes Vattel. (Vol. Ill, ch. VII, § 133.)

⁹³ The reader will remember that we discussed above, under § 8 (f) this question of political asylum.

⁹⁴ The Greek war of independence, the Polish insurrections of 1832 and 1863, the Hungarian uprising of 1849 (see Moore's Principles of American Diplomacy, p. 202f), and the Boer War of 1898-99, called forth mass meetings and very warm expressions of public opinion throughout the civilized world. In as far as these demonstrations were merely popular, they offered no ground for protest on the part of the governments concerned, but could only serve as a helpful warning of a general disapprobation which any wise government would take into account.

⁹⁵ Manning's reference is to Alison, Hist. French Rev. I, 433, 434.

⁹⁶ See discussion above of Hostile Expeditions. The Austro-Serbian question is examined in E. C. Stowell: Diplomacy of the War of 1914, p. 77-8.

⁹⁷ This duty of refraining from any violations of the sovereignty of the other state is discussed above, § 12.

The limits within which a state should restrict its efforts at propaganda, political or religious, are indicated in a letter Frederic Rogers (Lord Blachford) wrote regarding the appointment of missionary bishops in the Turkish Empire:

"My dear Lord Bishop, - I am rather afraid of being misunderstood about your Bill, a copy of which has just reached me.

"I, of course, think it is a just claim of the English Church to be allowed to consecrate Missionary Bishops, and as a Churchman I shall be extremely glad if your particular Bill passes as it stands.

"But I think that in your Bill the State is entitled to take this objection the Bill proposes to invest a Bishop in a Mahomedan country say of Mecca with a statutory relation to the Church of England, that is to say, to attach him remotely, but really, to the constitution of this country of which the Church is a part.

"Now, this Bishop of Mecca is not a mere Bishop of English congregations, but a Missionary Bishop bound in that capacity to make war upon Mahomedanism, which is, on the other hand, part of the political constitution of the Ottoman Empire.

"Now, the Ottoman Empire having been to a certain extent admitted into the family of nations, is it according to the comity of nations that the English Parliament should take under its wing an organized attack on the constitution of that Empire? The Pope, no doubt, does it in England, but first he does it under shelter of certain principles of toleration, which we profess, and which it appears to me are sufficient to cover his aggression ; and next we, notwithstanding, quarrel with him for doing it.

"You will answer that the Crown may, under your Bill, prevent any such complications by refusing its assent to the creation of any Bishopric which is calculated to cause them.

"This is one of those answers which is good or bad according to the animus of the person to whom it is addressed. A rash or careless Minister may authorize the erection of an Anglican Bishopric in a place where its erection would be politically unjustifiable. The question is whether the advantage (of setting the Church going in a missionary direction) justifies the risk of an ill-advised appointment causing a complication with a foreign country.

"Personally, I think it does (and therefore wish well to your Bill), but if I held the well-being of the English Church a matter of little importance to this country I should think differently, and should think that the Parliament had a right to some more distinct guarantee (to speak as a politician) against the abuse of the powers of consecration.

"Even personally I prefer our colonial principle of proceeding, the principle, namely, of leaving Bishops to consecrate in virtue of their inherent spiritual powers, and leaving the consecrating and consecrated to arrange for themselves what shall be their relation to each other. In this case, the State is subject to no responsibility (colonial Bishops being no part of the Constitution), and is therefore entitled to no control over the missionary operations of the Church.

"I should therefore have liked best to see a Bill (though it would have been perhaps very difficult to draw one) which would merely have permitted the Church to create an Episcopate beyond the limits of the Queen's Dominions, leaving the relations of that Episcopate to be formed by mutual consent without any statutory aid or the necessity of any Royal assent.

"But I repeat, in default of this, I should consider your Bill as likely to be of great advantage, and wish it success." (Letters of Frederic Lord Blachford, edited by George Eden Marindin, 1896, p. 234-6.)

⁹⁸ In regard to propaganda of objectionable doctrines, Heiberg, who may be called the dean of authorities upon the subject of intervention, remarks: "A state which can be ruined in this wise, must either be tottering, and out of touch with higher civilization [Kultur], or the ideas and danger laden system which has gained recognition in the state from which the danger threatens must have truth in them." (Translated from Nicht-Intervention, 1842, p. 15-16.) Heiberg refers to the views of the elder Rotteck against interference on account of revolutionary troubles, which called forth a counter opinion from one Dr. Trummer, who considered that states are so nearly affected by what happens across their borders that intervention cannot always be avoided.

Ott's French edition of Klüber (§ 237, p. 308) contains an interesting note (e) condemning interference because of the fear, real or alleged, of "a moral invasion, an intellectual contagion, a political epidemic." References to other authorities are also given,

⁹⁹ After Westlake has justified "the decision of the great powers in 1815 to exclude Napoleon from the throne of France, as a man the experience of whose conduct precluded belief in any protestations of peacefulness which he might make," he remarks: "With this must be strongly contrasted the at-tempt which during a few years after the congress of Vienna was made by the continental great powers to rule Europe on the principle of legitimacy. In the circular dispatch which, on the occasion of the insurrection at Naples, the courts of Austria, Russia and Prussia dated from Troppau, 8 December 1820, they said that 'the powers have exercised an incontestable right in occupying themselves with taking in common measures of security against states in which the overthrow of the government by a revolt, even could it be considered only as a dangerous example, must have for its consequence a hostile attitude against all constitutions and legitimate governments.' This was to assert a right of self-preservation against the contagion of revolution; to deny to a nation the right of establishing for itself free institutions, by force if they cannot otherwise be attained, lest the example should be dangerous to autocratic governments in other countries. The true principle was expressed by Canning, when on 31 March 1823, on the occasion of the French intervention against the government which had been established by insurrection in Spain, he wrote to the British ambassador at Paris: 'No proof was produced to his majesty's plenipotentiary of the existence of any design on the part of the Spanish government to invade the territory of France, of any attempt to introduce disaffection among her soldiery, or of any project to undermine her political institutions; and so long as the troubles and disturbances of Spain should be confined within the circle of her own territory, they could not be admitted by the British Government to afford any plea for foreign interference. If the end of the last and the beginning of the present century saw all Europe combined against France, it was not on account of the internal changes which France thought necessary for her own political and civil reformation, but because she attempted to propagate first her principles, and afterwards her dominion, by the sword." (Westlake: International Law, Part I, Peace, p. 318-319.)

Westlake adds the following in a footnote: "We quote the last sentence only for the principle, without implying anything as to the historical accuracy of the judgment passed by Canning on the wars of the French revolution, further than that it was certainly a true judgment so far as concerns the part taken in those wars by Great Britain. (Ibid.) Bernard as we have indicated above quotes from this same speech with approval. (Bernard: Non-intervention, p. 12-13.)

¹ Nassau Senior, discussing interference of this kind, points out the flimsy basis upon which it is justified, declaring that the circumstances which create the "supposed inconvenience or danger arising to other nations from events occurring in the interior of a country" are "incapable of definition, and generally incapable of proof. If," he continues, "we examine the statements of evils suffered or apprehended from the domestic affairs of independent nations, on which the most remarkable modern interventions have been founded, we shall find them in general too vague to be susceptible of refutation, or too frivolous to deserve it ..." "A remarkable similarity runs through all the state papers in which this right of intervention is asserted. They generally begin by disclaiming the wish to interfere with the affairs of any independent state; they then state the inconveniences suffered by their own frontiers, in consequence of the disturbed state of their neighbors; they add that the doctrines professed, and the examples held out, are subversive

of the general tranquility of Europe, and particularly of that of their own dominions: and they therefore propose to take military possession of the disturbed country, with no views of aggrandizement, but simply in self-defense." (Nassau Senior : The Law of Nations, Edinburgh Review, April, 1843, p. 334-6.)

² We should remember that the preservation of a government is by no means the same thing as the preservation of a nation or state. Even when the state itself is destroyed, the people may find happiness under another flag. These considerations should help to secure a better recognition of the obligation to sacrifice the existence of the state rather than to disregard the sacred terms of a treaty. Again I quote the noble words of Westlake: ". . . . patriotism should not allow us to forget that even our own good, and still less that of the world, does not always and imperatively require the maintenance of our state, still less its maintenance in its actual limits and with undiminished resources." (Westlake: International Law, vol. I, p. 312.)

When we speak of the existence of the state, we are always making a mere supposition, for no one really knows what will endanger the existence of the state. We should always read "interests of prime importance" when the preservation of the state is discussed.

³ Machiavelli endorsed this doctrine of necessity as a complete justification in "The Prince" (1676, eh. xviii) where he wrote : "A prince, therefore, who is wise and prudent, cannot or ought not to keep his parole when the keeping of it is to his prejudice, and the causes for which he promised removed. Were men all good this doctrine was not to be taught, but because they are wicked and not likely to be punctual with you, you are not obliged to any such strictness with them; nor was there ever any prince that wanted lawful pretence to justify his breach of promise." (Quoted from T. J. Lawrence : Documents Illustrative of International Law, p. 3-4.) On the whole, Vattel cannot be said to support the doctrine of necessity in its absolute form. (Cf. Bk. Ill, § 43; Bk. II).

Klüber (Europäischer Völkerrecht, § 44) gives an emphatic endorsement of the doctrine, and gives several references in notes.

G. F. de Martens (Précis, §§ 74, 78) permits interference when necessary for the security of the state.

Professor Franz von Liszt, of the University of Berlin, in the year of our Lord 1920, still supports the doctrine of necessity (Völkerrecht, 11 ed., Berlin, 1920, p. 180-1).

At first view, we appear to find a considerable weight of modern authority defending the doctrine of absolute necessity, that is, the right of a state to do anything which it finds necessary for the preservation of its existence, even though it disregard the most sacred rights of its innocent neighbors. But on closer inspection, we find that very few really intend to support this stand. What many of these authorities have in view is the right of a state to disregard the inviolability of a sovereign state's territory when the latter fails to police it and prevent its serving as a base for hostile expeditions. The invasion of the territory in such circumstances is not a violation of sovereignty, but a cooperation with the sovereign for the policing of his territory. It is unlawful for him to resist reasonable action of this nature, and he will do so at his costs and peril. (See above §§ 1 and 15.)

This seems to be the idea at the bottom of Hall's somewhat confused statements. (Cf. International Law, 4 ed., §§ 11, 83, 85, 91.) On the whole, his authority is opposed to this absolute doctrine of necessity. Phillimore stumbles in the same manner. (See vol. I, § 213, p. 227.)

Lawrence, defending action under necessity, is evidently intending to justify both preventive action by self-help, and acts of military necessity (Principles, 4 ed., 1910, § 65, p. 127.)

Oppenheim (International Law, 2 ed., vol. I, §§ 129-130, p. 184-6; § 138, p. 195; vol. II, 413, p. 532), betrays in the confusion of his words the insecurity of his premises.

See also Twiss (vol. I, p. 149-150) ; Guizot (Memoirs, vol. IV, p. 5) ; Kent (Commentaries, 12 ed., vol. I, p. 23.)

As we have indicated, the value of the evidence which many of these text writers bring to the support of the doctrine of necessity is weakened and neutralized by the conflicting views which they express. Those authorities who would allow every independent state to be the sole judge of when the preservation of its existence against impending danger justifies an invasion of a neighboring state may present some theoretical difference between the advocates of the extreme doctrine of necessity, but in practice, either doctrine would make possible the same disregard of the rights of innocent weaker states, and may therefore be considered as two forms of international anarchy. See discussion in section 15 regarding Castlereagh 's note on the affairs of Spain; cf. also his Circular of January 19, 1821 (British State Papers, Vol. 8, p. 1160), in which this doctrine was expressed (quoted in Creasy, p. 293). Calvo calls these "wise principles" (Le Droit International, 1 ed., vol. I, § 97, p. 201.)

Evidently influenced by Castlereagh, Wheaton (Elements of International Law, Part II, eh.

I, § 12, p. 106), referring to the sovereign's right to establish whatever form of government it chooses, declares: "No foreign state can lawfully interfere with the exercise of this right, unless such interference is authorized by some special compact, or by such a clear case of necessity as immediately affects its own independence, freedom, and security."

⁴ Opposed to the doctrine of absolute necessity, that is, the right of a state to do anything and to disregard any right or rights when it believes it necessary for the preservation of its existence, are the following authorities:

Grotius points out that reason justifies the principle of self-preservation, but he considers we must "proceed to that which, though subsequent in origin, is of greater dignity; and must not only accept it, if it be offered, but seek it with all care." (Grotius: De Jure Belli et Pacis, Bk. I, ch. II, I, § 2, Whewell's translation, p. 30; cf. Ibid, Bk. II ch. I, IV, § 1.) In other places where Grotius appears to justify violation of law upon the ground of necessity, he seems really to mean the right to disregard less important rights (Bk. II, ch. II, VI, § 2; Bk. II, ch. VI, V; Bk. II, ch. II, IX).

Creasy (First Platform, p. 282, note) quotes approvingly Acton's translation of Mamiani's "Rights of Nations" (p. 192) : "Though it be infallibly true and certain that it is the duty of every human society to save itself, and though we be allowed also to affirm that there exists between them a tacit agreement to help and protect each other for the sake of their common safety, this must always be understood with some discretion, and never extended beyond the limits of rectitude and justice. No sanctity, no grandeur of purpose, not even any necessity or extreme pressure of an emergency, can suffice to justify the resort to means which are not good. Let our diplomatists, both of the old school and the new, take care to remember this, that the observance of a principle is beyond measure more important than the peace, order, and safety of a single or of several States."

See also, E. C. Stowell: Diplomacy of the War of 1914, p. 445-456, 640-650. Ott's Edition of Klüber ( 44, p. 307) has an important note controverting Klüber 's opinion in support of the doctrine of necessity.

⁵ Hauterive, in his note to Vattel (Edition by Hauterive, Vol. I, p. 432-3, Bk. II, § 120) says that "necessity" is of the same nature as inadvertence and insanity in that they remove man's volition. In such cases, it is evident that much, if not all, of the deterring effect of punishment will be removed and hence there will be no rational ground for retributive punishment. Nevertheless, the law will have been disregarded, and this will justify action to restore the rights of the wronged state.

Westlake has shown the fallacy of this assertion: "When," he says, "a small injury is inflicted in obedience to an almost irresistible impulse, the law may overlook it, but in principle we may not hurt another or infringe his rights, even for our self-preservation, when he has not failed in any duty towards us."

"Self-preservation, when carried beyond this point, is a natural impulse, an effect of the laws to which human nature is subject in the stage of advancement to which it has as yet attained. But the office of jural law is not to register and consecrate the effects of the laws of nature [i.e. of human nature], but to control them by the introduction of the principle of justice, where an unreflecting submission to the tendencies which in their untamed state they promote would be destructive of society. In that way human nature itself has been gradually improved, and we may hope will continue to be so." (Westlake: International Law, Vol. I, p. 311; Cf. ibid, p. 307-317.)

Relative to necessity as an excuse, it may be of interest to refer to the somewhat confused reasoning of certain writers: H. V. Rotteck (Einmischungsrecht, p. 20-25) ; Oppenheim

(vol. II, p. 53); Lawrence (Principles, 4 ed., 1910, § 65). Rotteck says action on account of necessity does not become lawful, but is excused.

⁶ The rules of international law are in the main derived from, or indicated by, the concurrent practice of states, and like all inductive generalizations, can be only approximately accurate. But when once a rule has been formulated, it receives for that reason a greater respect, and tends to make the practice of states conform to the terms in which it has been stated.

⁷ See above § 9.

⁸ See also below § 22. Disraeli well understood this as is shown by the following remark which he made: ''If the government of the world was a mere alternation between abstract right and overwhelming force, I agree there is a good deal in that observation; but that is not the way in which the world is governed. The world is governed by conciliation, compromise, influence, varied interests, the recognition of the rights of others, coupled with the assertion of one 's own ; and in addition, a general conviction, resulting from explanation and good understanding, that it is for the interest of all parties that matters should be conducted in a satisfactory and peaceful manner." (G. E. Buckle: Life of Disraeli, Vol. V, p. 460461.)

⁹ Some writers condemn the attempt to establish a hierarchy of rights, but this is to misunderstand the real significance of this doctrine of necessity. There would be no hierarchy of rights if such right were accurately and completely formulated, but since, in view of our lack of juridical experience and science, this is not yet possible, every right as formulated must be understood to be subject to certain fundamental or guiding principles, as Westlake has said in a passage already quoted : "...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.] (Westlake: International Law, vol. II, p. 313.)

¹⁰ In the same note, Pradier Fodéré quotes Jouffroy (Catéchisme de Droit Naturel, 1841, 107, p. 41) as declaring: "When in a case of urgent necessity a person violates the rights of another in the belief that there is no other means to save his innate rights, he does not do wrong provided that he is justified in believing (pent présumer) that the other to protect those rights would spontaneously have done the same. That is to say, 1st, when to defend one of the rights essential to the preservation of a man's dignity, he violates a right of another less essential to humanity; 2nd, when he is able to make the reparation which he owes."

¹¹ Speaking of intervention to ward off imminent danger, Lawrence (Principles, 4 ed., § 65, p. 127-8) says: "It must be sufficiently important in itself to justify the expenditure of blood and treasure to repel it Governments constantly submit to small inconveniences rather than resort to hostilities."

Perhaps it is fair to say that the criticism, whether well founded or not, that fell upon Lord Palmerston because of his interposition in the Don Pacifico affair was based upon the ground of the relative insignificance of the claims which Palmerston sent a fleet to collect from Greece. (See Hogan: Pacific Blockade, p. 105-115, for an account of the facts of this intervention.)

¹² Cf. Twiss, vol. I, p. 149 ; Grotius, Bk. II, ch. II, VIII ; Stowell and Munro: International Cases,

Vol. II, p. 544-557. When possible, the same principle would require payment prior to expropriation. An interesting case of angary was the seizure of the Dutch vessels in the ports of the United States during the recent war. ( See J. W. Garner : International Law and the World War, vol. I, p. 174-6.)

Grotius (Bk. II, ch. II, VII, VIII, IX, Whewell's translation, vol. I, p. 239-240) justifying certain alleged "pristine rights" of all mankind and declaring that they are revived by necessity, warns that "this liberty go not too far." First, he cautions us to endeavor to avoid using it, and by way of illustration he adds: "Plato allows a man to take water from his neighbor's well, if in his own he has dug down to the chalk, seeking water ; and Solon, if he has dug his own ground forty

cubits. For as Plutarch says, he thought that necessity was to be relieved, not idleness encouraged; and Xenophon says to the Sinopians, If we are not allowed to buy, we must take; not from contempt of Rights, but from necessity."

"Secondly, such liberty is not granted, if the possessor be in like necessity; ….. Lactantius says, that he does not do amiss who abstains to thrust a drowning man from a plank, or a wounded man from his horse, even for the sake of his own preservation. So Cicero; and Curtius. "Thirdly, that when it is possible, restitution be made." 13 That is, self-help. See above, §§ 1 and 15.

¹⁴ Some of the authorities who express this view are Twiss (vol. I, § 102, p. 149), Phillimore (Commentaries, 1 ed., vol. I, § 213, p. 227), and Lawrence (Principles, 4 ed., § 65, p. 127.) Halleck (International Law, ch. IV, 25, p. 95), criticizing Phillimore 's view, points out the contradiction in his reasoning, but does not appear himself to seize the principle of relativity for which Phillimore is groping.

We find what is really another recognition of the principle of relativity, although it is also based upon an erroneous interpretation of principle: I refer to the alleged right of transit, or passage for troops across neutral territory. (See Vattel, Bk. II, ch. IX, § 123. Pradier-Fodéré's edition supplies interesting notes to this passage and to the following sections relating to the right of "innocent passage" vol. II, p. 108-116.)

¹⁵ The failure to distinguish between a liberty of each state to make this decision subject to such rectification as the procedure of international law provides and an absolute or perfect right to decide as it chooses has caused much confusion. We shall revert to this matter later on.

¹⁶ The limitation which some authorities put upon justifiable action for self-preservation is really a question of the reasonableness of satisfaction. (Cf. Halleck, ch. IV, § 5, p. 84.) Whenever international law gives a right of action for redress, the right is limited to what is reasonably required for satisfaction, compensation, and security.

¹⁷ The laws of war carry with them their own sanction, and the belligerent who violates them will be in danger of degrading the conflict to a war of extermination which may work the destruction of both parties, but will tend surely to eliminate the transgressor from the ranks of respectable states. The states that survive today are those that have shown a proper regard for the laws of war, or at least, to state a truism, we may say that they have shown a respect for the laws of war adequate to permit their survival. In addition to this automatic sanction of common ruin, there is also the possibility of intervention by neutral states. (See above, § 7.)

¹⁸ Hall adds the following note: "Grotius (De Jure Belli et Pacis, lib. ii. c.ii, § 10) gives the occupation of neutral territory, under such circumstances as those stated, as an illustration of the acts permissible under his law of necessity; and the doctrine of Wolff (Jus Gentium, § 339), Lampredi (Jr. Pub. Univ. Theorem, pt. iii. cap. vii. § 4), Klüber (§ 44), Twiss (i. 102), etc., covers the view expressed in the text; its best justification, however, is that the violation of the rights of sovereignty contemplated by it is not more serious, and is caused by far graver reasons, than can be alleged in support of many grounds of defensive intervention, which have been acted upon, and have been commonly accepted by writers. For defensive intervention, see § 91." [The passage from Grotius above referred to is that which we have just quoted. E. C. S.]

¹⁹ Hall is in error here. The British Government may have had information which led them to expect that the treaty would be made, but the British Expedition was decided upon before the treaty was signed.

²⁰ Hall adds the following in a note: "Alison, Hist, of Europe, VI: 474-5; De Garden, Hist, des Traités de Paix, X: 238-243 and 325-331. Writers who still amuse themselves by repeating the attacks upon the conduct of England, which were formerly common, might read with profit the account of the transaction given by the best French historian who has dealt with the Napoleonic period (Lanfrey: Hist, de Napoléon ler, IV: 146-9), [and Professor T. E. Holland's addition to Hall's note] and the comments on the English policy by Captain Mahan of the U. S. Navy, 'Influence of Sea Power upon the French Revolution and Empire,' II: 277."

Nassau Senior, a loyal Englishman of the highest standing, remarks: "Such was the pretence on which we seized Copenhagen in 1807; but who will now venture to defend that occupation?" (Nassau Senior: Article in Edinburgh Review, April, 1843, vol. 156, p. 328.) Travers Twiss is in agreement with Hall. He writes: "Urgent and indisputable danger may even authorize a nation, to occupy the territory of a neutral nation in order to prevent the execution of an enemy's intention to occupy it for the purposes of carrying on its hostilities with greater advantage, whenever the nation to which the territory belongs is unable or unwilling to defend it. But the exercise of this right, which Klüber (Pt. II, 44) regards as a right of necessity,

entails the obligation to make compensation to the neutral state for any damages which may have accrued to it." (Travers Twiss: The Law of Nations, vol. I, 1861, § 102, p. 150.)

And Westlake who has given us the best refutation of the so-called doctrine of necessity, avoids Hall's misstatement of facts but reaches the same conclusion: "Perhaps the most memorable instance of political action on the ground of self-preservation, justifiable in our opinion, is that of the seizure of the Danish fleet by England in 1807. After the treaty of Tilsit there was good reason for believing that Napoleon and the czar Alexander, in order to obtain a great increase of naval power against England, intended to compel Denmark, by force if necessary, to join them in the war. The British government demanded of Denmark the surrender of her fleet, offering the most solemn pledge that on the conclusion of a general peace it should be restored in the same condition and state of equipment as when received. And on meeting with a refusal it caused the fleet to be captured by force of arms. Such a case is essentially similar to that of a belligerent having sure information that his enemy, in order to obtain a strategic advantage, is about to march an army across the territory of a neutral clearly too weak to resist, in which circumstances it would be impossible to deny him the right of anticipating the blow on the neutral territory. The principle that the legal rights of a state are not to be violated without its own fault is not really infringed, for when a state is unable of itself to prevent a hostile use being made of its territory or its resources, it ought to allow proper measures of self-protection to be taken by the state against which the hostile use is impending, or else must be deemed to intend that use as the necessary consequence of refusing the permission. It is a principle of jurisprudence that every one is presumed to intend the necessary consequences of his actions. We cannot therefore subscribe to the condemnation which many continental writers have pronounced on the conduct of England in 1807." (Westlake: International Law, Vol. I, p. 315-316.)

The principle which Westlake formulates is correct, but we may question its application in the present instance. For why should Denmark be held responsible for the evil consequences to others which might be expected to result from the commission of an assault upon her own rights 1 Before Westlake 's principle can apply, it must be shown that Denmark was herself a secretly active or negligently complaisant party to Napoleon 's designs. England 's defense must rest on other grounds which are discussed in the text.

Lawrence remarks: "In all probability men will differ as long as International Law is studied, about the seizure of the Danish fleet by Great Britain in 1807." (T. J. Lawrence: The Principles of International Law, 4 ed., § 65, p. 127-8.)

²¹ September 22, 1807, Lord Castlereagh wrote Lord Cathcart, "We are, above all things, anxious to preserve our character for good faith untainted, but ..." and he went on to explain the desirability of reoccupying Zealand as soon as it might honorably be done. ( Castlereagh 's Correspondence, Dispatches, and Other Papers, ed. by C. W. Vane, Marquis of Londonderry, 2nd Series, London, 1851, vol. VI, p. 179-181, 184.) Mr. Ponsonby twitted the government for withdrawing from Zealand. "Why," he asked, "so shabby in our iniquities? When we imitated the atrocities of the ruler of France, why not imitate the grandeur and magnificence of his designs!" (Parliamentary Debates, vol. X, p. 265.) Canning defended the conduct of the Government (ibid, p. 278), but in a letter of September 23, 1807, to Mr. Ross, his private secretary, he complained of the agents who had made the agreement. Letters of the First Earl of Malmesbury, London, 1870, vol. II, p. 51. Cf. Diaries and Letters of Sir George Jackson, 1872, vol. II, p. 218, Rose Canning and Denmark, in English Historical Review, 1896, p. 90.)

²² Polybius, Let. I, Cap. 83, cited by W. A. Phillips in his article on the Balance of Power, Encyclopedia Brittanica, vol. III, p. 235, writes: "Nor is such a principle to be despised, nor should so great a power be allowed to any one as to make it impossible for you afterwards to dispute with him on equal terms considering your manifest rights."

In the article just referred to, Phillips says: "In its essence, it is no more than a precept of common sense born of experience and the instinct of self-preservation."

²³ In the event that a small state is unable to fulfil its international obligations, so that its territory becomes a cause of disturbance for neighboring powers and an international nuisance, the surrounding powers would be justified in taking such reasonable action as is necessary to police the territory and to remove the cause of disturbance. See above § 9, and under § 15.

²⁴ See Charles Dupuis: Le principe de 1'équilibre, p. 41.

²⁵ The project of a partition of Belgium in the handwriting of Benadetti was given out by Bismarck and published in the London Times upon the outbreak of the Franco-German War. It did much to alienate the sympathy of England and to lessen her desire of intervention. (See International Relations by the correspondent of "The Times" [Blowitz] at Berlin, Vol. II, p. 190f.)

²⁶ We must remember that the maintenance of the body of independent states is justified as an instrument of human peace and progress, but it would be the height of intellectual arrogance to assume that any existing relationship was the end of human achievement. It is impossible to arrest the march of progress by any combination to maintain the status quo. Hence it would be as ineffectual as immoral to attempt to enforce any rule which should forbid to the independent states of the world a gradual growth and evolution toward more perfect forms. Lorimer (Institutes of the Law of Nations, 1884, vol. II, p. 197-208) points out that the doctrine of the balance of power was set up by the states in order to maintain the status quo, and from this point of view he levels at it a searching and destructive criticism which everyone should read. But Lorimer and other writers, with the possible exception of Nassau Senior, seem not to have observed that the recognition of the doctrine of the balance of power by the states and the enforcement of it in practice have had other legitimate and valuable results which we note further

along.

²⁷ In regard to the attempt to justify the partition treaties of 1698 and 1700 for the partition of the Spanish succession, Creasy refers to what Lord Macaulay has written, and remarks: "A zealot for William III will probably think that defense successful. To others it may appear that the direct gross injury of violently dismembering an unoffending state against its will, far outweighs any speculative good that can be effected by preventing a possible disarrangement of the political equilibrium of Europe." (First Platform of International Law, p. 287.)

But I cannot share Sir Edward Creasy 's high opinion of Macaulay's argument, and I think an examination will bear me out. Lord Macaulay's justification of the partition treaty is as follows :

"It has been said to have been unjust that three states should have combined to divide a fourth state without its own consent; and, in recent times, the partition of the Spanish monarchy which was meditated in 1698 has been compared to the greatest political crime which stains the history of modern Europe, the partition of Poland. But those who hold such language cannot have well considered the nature of the Spanish monarchy in the seventeenth century. That monarchy was not a body pervaded by one principle of vitality and sensation. It was an assemblage of distinct bodies, none of which had any strong sympathy with the rest, and some of which had a positive antipathy for each other. The partition planned at Loo was therefore the very opposite of the partition of Poland. The partition of Poland was the partition of a nation. It was such a partition as is effected by hacking a living man limb from limb. The partition planned at Loo was the partition of an ill-governed empire which was not a nation. It was such a partition as is effected by setting loose a drove of slaves who have been fastened together with collars and handcuffs, and whose union has produced only pain, inconvenience and mutual disgust. There is not the slightest reason to believe that the Neapolitans would have preferred the Catholic King to the Dauphin, or that the Lombards would have preferred the Catholic King to the Arch-duke. How little the Guipuscoans would have disliked separation from Spain and annexation to France we may judge from the fact that, a few years later the States of Guipuscoa actually offered to transfer their allegiance to France on condition that their peculiar franchises should be held sacred.

"One wound the partition would undoubtedly have inflicted, a wound on the Castilian pride. But surely the pride which a nation takes in exercising over other nations a blighting and withering dominion, a dominion without prudence or energy, without justice or mercy, is not a feeling entitled to much respect. And even a Castilian who was not greatly deficient in sagacity must have seen that an inheritance claimed by two of the greatest potentates in Europe could hardly pass entire to one claimant; that a partition was therefore all but inevitable; and that the question was in truth merely between a partition effected by friendly compromise and a partition effected by means of a long and devastating war.

"There seems, therefore, to be no ground at all for pronouncing the terms of the Treaty of Loo unjust to the Emperor, to the Spanish monarchy considered as a whole, or to any part of that monarchy." (The History of England from the Accession of James II by Thomas Babington Macaulay, Chapt. XXIV, p. 363-4.) Answering the charge that the partition of the Spanish Monarchy, contemplated by the Treaty of Loo, 1698, was to be compared with the partition of Poland, which he characterizes as "the greatest political crime which stains the history of modern Europe," Macaulay defends the conduct of the governments concerned on the ground that there was no sentiment of national unity between the different parts, and that it was an advantage to certain regions to free them from the Spanish yoke. He considers that the only hurt was to Spanish national pride, but this he did not consider was sufficient cause to restrain the action of the powers.

But Macaulay does not appear sufficiently to have taken into account the national rights of the Spanish people. The greatness of Spain was in part due to the energy and sacrifices of the Spanish people, and in part to the fortunate inheritance of their sovereigns of foreign territory. As a matter of right, it is not clear that the political aims of England and Holland were a sufficient justification for the partition. There was, however, a just ground for preventing Louis XIV from effecting a combination between the two states by placing a scion of his house on the Spanish throne.

It is probably true, as Macaulay declares, that had the Spanish King died that year, the Treaty of Loo would have been observed by Louis XIV, and have preserved the peace of Europe. The certainty of avoiding a great European war might, as a matter of expediency, seem to permit the powers to disregard Spanish national pride and the sovereign rights of Spain. But it is not certain that peace could not have been preserved by some other means, and it is by no means certain that France would have accepted the treaty. Subsequent events showed that this serious interference with Spanish rights which the allied powers agreed to upon the supposition that the king was moribund was unavailing. It did not prevent the war. It may not be unreasonable to suggest that the result of the partition treaty was to embitter the strife and cause a prolongation of the disastrous conflict. Louis XIV may have found some justification for his repudiation of a treaty which contemplated an illegal act, especially when he had been constrained to give his consent to it. Thus it is evident the vices in the original treaty bore bitter fruit.

A recent and striking instance of partition on the ground of the maintenance of the balance of power was Great Britain 's acquisition of Wei-Hai-Wei to balance Russia's occupation of Port Arthur. See Robin: Occupations, p. 524-5.)

²⁸ Strauch recognizes the right of intervention for the preservation of the balance of power when it is endangered by the acquisition of territory as the result of war. (Interventionslehre, p. 11; see also Vattel, Bk. Ill, § 49.)

A careful reading of Fenelon's interesting discussion of the right and expediency of forming offensive and defensive alliances against a power which threatens to become pre-ponderating shows that he was considering more particularly the obligation to organize a collective counter-intervention against a great power which should attack a weaker neighbor. (The French text is quoted by Phillimore: Commentaries, 1 ed., 1854, vol. I, p. 520-525.) Halleck's discussion of the balance of power treats mainly of action to prevent conquest. (Halleck : International Law, ch. XIV, §§ 13-18, p. 335-8.)

Sheldon Amos says that the balance of power ".... is, in fact, now little more than a convertible expression for the policy of maintaining the territorial integrity and independence of the smaller states." (Sheldon Amos: Remedies for War, p. 201.)

No doubt this theory has been useful to check the too rapid absorption of the small powers by their great neighbors. For centuries England has saved Portugal, Belgium, Holland, Denmark, and other small states from extinction, and this is perhaps the explanation of Sheldon Amos's sweeping statement.

²⁹ Charles Dupuis: Le Principe d'équilibre et le Concert Européen de la paix de Westphalie à l'acte d'Algésiras, Paris, 1909. Formerly, when public opinion was not so well instructed, the balance of power was made to justify the forcible annexation of territory, and the partition of weaker states. Among the older writers generally we find a tendency to defend the balance of power without a sufficient consideration of the means employed for this end. "For a long time," writes Dr. Lawrence, "this doctrine was accounted axiomatic. It had only to be stated to be accepted. To preserve the balance of power, states kept up standing armies, entered into wearisome negotiations and waged incessant wars. But of late years it has fallen into disrepute, and those who still maintain it set it forth in a greatly modified form. They are content to argue that civilized states have duties to perform to the great society of which they are all members, and that they should act in concert against any aggressive member of it whose unsocial conduct endangers the welfare of the whole. It is possible," he adds, "to accept this doctrine and yet hold that the theory of a balance of power is untenable." (T. J. Lawrence: Principles, 2 ed., § 85, p. 126.) It is interesting to see how much this statement has been modified in the fourth edition (1910, § 67, p. 133). In this revision, Lawrence justifies the action above described on the ground

Of self-preservation and preservation of society.

³⁰ Nassau Senior has given us a careful study of intervention for the maintenance of the balance of power, based upon the practice of the European States. He reaches a favorable conclusion, and declares that "this right of intervention" is "a privilege of the weak against the strong," and considers that ' ' the circumstances which give rise "to this form of intervention "are tolerably definite and must always be evident." (Nassau Senior: The Law of Nations, Edinburgh Review, April, 1843, p. 334 passim.)

Professor Lingelbach says: "Whatever may be said of the doctrine of the balance power from an ethical standpoint, the facts of history show that it has been a factor to which the theoretical right of independence has constantly yielded. The principle underlying the doctrine and practice has been, that the existing distribution of territory and power among the principal states at any one time is so essential to law and order in the society of nations that a disturbance of the status quo constitutes a valid ground for intervention." (American Academy of Political and Social Science Annals, vol. XVI, July, 1900, p. 10, cf. p. 24-5.)

Professor Pillet, in his study of the Fundamental Rights of States, declares that the "balance of power is a condition which all peoples have an equal public interest in establishing and maintaining. Hence there exists a veritable right to the maintenance of the balance of power, and it is one the pursuit of which may be supported by the best reasons, since in this manner, each one speaks only for the common interests." (Translated from A. Pillet: Fundamental Rights of States, in Revue generate du droit international public, vol. V, p. 253.) An Italian considers that the balance of power is a "…. system which corresponds to the philosophy of law and to the concept of history." (Memoria del Prof. Ercole Vidari: Principio di intervento, p. 73-4; cf. p. 80.)

³¹ "Furthermore," declares Professor Krug, "the ostensible equilibrium is a thing so weak, fragile, and unreliable that the striving to attain it has done more to bring on war than to preserve peace." (Translated from Krug: Dikäpolitik Leipzig, 1824, p. 373.)

Hermann von Rotteck does not consider that the principle of the balance of power is a legal basis, but declares that it serves as an "excuse" for the most unjust actions, and he considers that the powers "often made use of it to satisfy their designs of conquest." (H. von Rotteck: Recht der Einmischung, 1845, p. xx-xxi.)

Westlake considers that nothing "…. savoring of the principle of the balance of power ought now to remain, except such precautions as in particular cases may commend themselves to a cool head not easily alarmed." (International Law, vol. I, p. 316.)

Oppenheim (International Law, vol. I, p. 193) declares: "It is necessary to emphasize that the principle of the balance of power is not a legal principle and therefore not one of international law, but one of international policy."

Similar opinions are expressed by Wheaton (International Law, Dana's ed., § 63); Bonfils: Droit international public, 3 ed., 1901, § 250, p. 134) ; Wilson and Tucker (International Law, 2 ed., § 39, p. 76).

That Hall does not discuss this question is perhaps an indication that he did not consider it a matter of law such as to justify its inclusion in his treatise.

³² G. F. de Martens, writing in 1788 of an aggrandizement dangerous to neighboring states, says : "...there are cases when the law of nature [justice] cannot prohibit such states from watching over the maintenance of an equilibrium amongst them and from opposing before it is too late even with the force of arms either separately or united either a disproportionate aggrandizement irrespective of its lawfulness, or the weakening of another which might serve as a counterpoise." (Précis § 12.)

Nassau Senior writes: "Interferences, therefore, to preserve the balance of power, have been confined to attempts to prevent a sovereign, already powerful, from incorporating conquered provinces into his territory, or increasing his dominions by marriage or inheritance, or exercising a dictatorial influence over the councils of an independent state." (Nassau Senior: The Law of Nations, Edinburgh Review, April, 1843, p. 329.)

Phillimore states as one of the grounds of intervention, which "the reason of the thing and the practice of nations appear to have sanctioned," action taken "to preserve the balance of power; that is, to prevent the dangerous aggrandizement of any one state by external acquisitions." (Commentaries, 1 ed., 1854, vol. I, § 387, p. 434.)

Woolsey seems to hold a similar opinion, and writes that "it matters not whether the actual ratio of power between states is in danger of being disturbed by unjust or by just means, provided only the means are political, not economical and strictly internal. If, for instance, the sovereign of a powerful state should in a just way seat one of his family on the throne of a neighboring state, the justice of the transaction would not be a sufficient protection against the interference of other powers." (T. D. Woolsey, 1 ed., 1860, § 43, p. 92, 6 ed., § 44, p. 45.)

The treaty of Utrecht declared that France and Spain should not both be ruled by members of the Bourbon family. The same question arose when France, in 1870, was not willing that a Hohenzollern should be made King of Spain.

An alliance between two or more states approaches and shades into the combination of states which, as we have seen, justifies objection when it endangers the equilibrium of the other states. But in practice, alliances do not prove to be as close as a real combination, and any attempt to prohibit them would lead to wars which the principle of the balance of power wishes to prevent. It is also true that they usually have no great duration, unless they serve as a necessary measure of defense. Occasionally they may serve the purpose of aggression, but the only practical and effective countermeasure is an opposing defensive alliance between the states who consider that their security is menaced.

Westlake is an eminent authority who denies that intervention is justified to prevent accessions of territory except "for the sake of justice," by which he evidently means to prevent the conqueror from stripping the vanquished of territory beyond the limits of what may be considered as a reasonable satisfaction. Westlake significantly adds: "Of course every state in turn which exacts a cession of territory after a successful war, or seeks to profit by the marriage or inheritance of its monarchs, denies that a third power has any voice in the matter. But every state in turn claims a voice in such matters when it deems it to its interest to do so." (Westlake: International Law, vol. I, p. 317, note.)

Vattel propounds a curious theory that although combination is perfectly legitimate, it may be considered as a sufficient evidence of designs of conquest when each of the two nations is able alone to maintain itself in security. (Vattel, Bk. Ill, § 44, Carnegie translation, p. 247.)

³³ This right of reasonable regulation has been more fully considered above, § 9.

Fénélon points out that all the states compose a sort of society and commonwealth [république générale] . He argues that "to prevent a state from becoming too powerful was not to do a wrong, but to protect oneself and one 's neighbors from subjection, and in a word to work for liberty, tranquility, and the public safety." Referring to the vast acquisitions of territory of the House of Austria, Fenejlon continues: "All Europe was justified in fearing universal monarchy under Charles V, especially after Francis I was defeated and made prisoner at Pavia. There can be no doubt that a nation that had no direct cause of difference with Spain was justified [en droit], for the freedom of all [liberté publique], in checking this rapid growth of power which seemed on the point of swallowing up everything." That individuals do not have this same right, Fénélon considered was because "…. there are written laws and magistrates to suppress injustice and violence between families unequal in wealth; but among nations they do not exist." (Fénélon: Works, vol. xxii, p. 306 f., quoted by Phillimore, 1854, vol. I, p. 520-525.) What Fénélon says covers the principle of reasonably restricting the exercise of the rights of independent states for the common good, but the force of these arguments, as such, is impaired by the later statement that "offensive leagues must be directed against violations of the peace, or the detention of territory of one of the allies, or against other acts of a similar nature known to have been committed." (Quoted by Phillimore, 1 ed., 1854, vol. I, p. 522.) That action for the preservation of the balance of power is in the nature of international police would seem to be the underlying thought of Travers Twiss, when he says: "The right of confederacy under the natural right of nations is at the foundation of the right of intervention in the interest of what has been termed, since the Peace of Utrecht (1713), the balance of power.''' (Travers Twiss: The Law of Nations, 1861, vol. I, p. 152.)

³⁴ Phillimore (Commentaries on International Law, 1 ed., 1854, vol. I, § 211, p. 225-6) recognizes that there is a certain right of restricting the liberty of armaments essential "for the sake of the general welfare and peace of the world."

³⁵ See Oppenheim: International Law, 2 ed., Vol. II, 72, p. 88; Westlake: Vol. I, p. 27-30.

³⁶ See Oppenheim: International Law, 2nd ed., Vol. I, § 95, p. 147; C. W. Wicker: Neutralization, 1911.

³⁷ Such, for example, as the restriction upon the organization of the German Empire, included in the articles of the Treaty of Westphalia.

³⁸ See Edwin D. Dickinson: The Equality of States in International Law, 1920, chapter entitled, "The Equality of States in the Peace of Paris," p. 336-378.

³⁹ The collective intervention of France and Great Britain to compel the Netherlands to submit to the separation of Belgium, 1831-32, has sometimes been classed as an instance of intervention for the maintenance of the balance of power. It was a good instance of political action undertaken for the maintenance of the political equilibrium by the liberal powers, but was in violation of the settlement adopted at Vienna, since it prevented Holland from recovering territory there assigned to her partly in compensation for that which had slipped from her control during the Napoleonic wars. As Sir Vernon Harcourt (Historicus), pointing out that the case of Belgium was not one of recognition but one of intervention, remarks: "Anyone who will be at the trouble to examine the history of that transaction, will see that Belgium did not pretend, nor did anyone assert on its behalf, that it had achieved a de facto independence. On the contrary, it is perfectly notorious that after the battle of Louvain, the Dutch army, but for the armed interference of France, would have reoccupied Brussels. The powers of Europe, which in 1815 had assigned Belgium to the Crown of Holland, thought themselves entitled in 1830, in the same European interest, to recast their own plan." (Letters of Historicus, p. 5.) From a juridical point of view there was a certain justification for the intervention of the western powers since they put an end to an unnecessary struggle and imposed upon the disputants a settlement which was likely

to be more permanent in that it removed a source of constant irritation.

When the great powers ride over the rights of smaller powers, it is not always easy to distinguish between proper regulation in the interests of European peace and unjustifiable interference the purpose of which is to leave the great powers freer in the pursuit of their own political aims. The latter is merely another and milder instance of the application of the partition policy which we have so severely criticized above.

⁴⁰ These treaties of guarantee are the record of the agreement between the signatory states to intervene in defense of the balance of power where it is endangered in the particular manner specified. The treaty does not create a new right or ground for intervention but merely provides for the fulfilment of existing rights by recourse to the action necessary for enforcement.

⁴¹ Bernard sees this essential idea that force used to secure an unjust advantage is conquest. In his discussion of interference to enforce ''one of those reversionary claims which once abounded in Europe," he says: "The forcible vindication of such rights, when they fall into possession, is not intervention, but conquest." (Bernard: Non-intervention, 1860, p. 13; cf. Hall: International Law, 4 ed., § 91, p. 300.)

Coleman Phillipson, in his Termination of War and Treaties of Peace, " ch. II, entitled, "Termination of War by Conquest and Subjugation," uses the term "complete subjugation "in place of what we call conquest. For him conquest is merely effective military occupation. He writes: "But in the case of subjugation - the debellatio of the Romans - not only have the occupying forces acquired effective possession of the territory concerned, but the adversary has been reduced to impotence and submission, or has been practically annihilated or, at all events, all his organized resistance has disappeared and the victorious Government has clearly manifested its intention to hold the said territory permanently under its dominion." (Phillipson: Termination of War and Treaties of Peace, 1916, p. 9, ch. II.)

Hall (International Law, 4 ed., § 204, p. 587) uses "conquest" as including this firm possession. It may well happen that a state acquire territory by conquest or otherwise, without completely subjugating it, as when Japan acquired Formosa, inhabited in part by unsubjugated tribes. Annexation we take to be the extension of sovereignty over new possessions accompanied by the indication of such intention. Consequently we reject as confusing and inaccurate Phillipson's "three steps, - conquest, subjugation, and annexation."

Other writers confuse the annexation of territory with conquest. Halleck, although he states that "hostilities were commenced by the Mexicans, and the Americans had suffered innumerable wrongs before the commencement of the war," considers that the war of the United States against Mexico was a war of conquest. The reason he gives is that the United States considered that indemnity for the past and security for the future could only be secured by retaining a portion of Mexico's territory. Halleck adds: "In its essential features it was, therefore, a war of conquest. "(Halleck: International Law, 1861, p. 332, ch. XIV, § 8.)

Reasonable indemnity and security is not conquest, but would of course become so if they were simply made the pretext for an unjust acquisition of territory. Sir Robert Morier, in a letter of January 5, 1870, discussing Germany's conduct wrote:

"But I maintain we have no right when we sit in judgment on a contemporary political event to appeal to Utopian laws, or to apply a code which, although it may have been already elaborated and accepted by a select few, has not yet had time to become the common law of mankind. It is absurd to maintain that territorial cessions, as such, have been definitely erased out of this international common law. Wars undertaken for the purpose of conquest undoubtedly have, and it is because the war of 1870 was really a war of this kind, and was felt to be but a link in an ascending series of such wars waged by France, that it raised such universal indignation amongst all right-minded people. A cession of territory demanded by the aggrieved party as a penalty to be paid by the unsuccessful aggressor, and on proof given that such cession is necessary to guard against a renewal of aggression, is not only not erased from the modern international code, but was solemnly placed on record in the treaty of peace with Russia in 1856. There is, moreover, a striking parallel between the principles which ruled our action on that occasion, and that which rules the action of Germany in demanding Alsace. In both cases the desideratum was, and is, the removal of the aggressor from the banks of a river which had before constituted his frontier, and the placing of the aggressed in full possession of both banks of the river." (Memoirs and Letters of Sir Robert Morier, 1911, vol. II, p. 223.)

When a powerful state has a weaker at its mercy, it may not be necessary actually to employ force in order to secure the coveted territory, and even if the acquisition of the territory wrested from the possessor is confirmed by a formal treaty, the act remains none the less one of conquest whenever force is relied upon unjustly to constrain the owner to make the cession.

⁴² Every system of law has for its main purpose to guarantee the peaceful enjoyment of rights. It cannot, therefore, justify conquest, but we must remember that the law is not law unless it is enforced sufficiently to make it respectable and valuable to those who observe it and help to support it. In its earlier stages law could not hope to be respected if it were to rigidly condemn conquest, for the instinct of conquest is too deep in the human heart. Even now, international law cannot hope to do more than to repress the worst evils of unlimited recourse to force. The old rule was that conquest was lawful when made in consequence of a just war.

As an illustration of the prevalence of this doctrine we quote the following portion of Professor Callahan's summary of Secretary of State Everett's note of December 1, 1852, relative to Cuba, addressed to the British representative: "The United States was not seizing islands in the Mediterranean, and she would not take Cuba by force except in a just war. She had no desire to be a disgrace to civilization." (See Callahan: Cuba and International Relations, 1899, p. 234-5.) Franciscus Victoria of Salamanca in the sixteenth century, declared: "Extension of empire is not a just cause of war." (Victoria's Relationes, De Indis et de Jvre Belli Relectiones, Carnegie translation, p. 170. The first edition of the Relectiones was printed at Lyons, 1557.)

The illegality of conquest is recognized by many other authorities. Vattel, referring to "purposes which may furnish lawful reasons or unjust pretexts, but which are at least capable of being construed as just," observes: "For this reason I do not offer conquest or the desire to usurp the property of another as one of the purposes of offensive war; such a purpose, lacking even the semblance of right, is not the object of formal war, but of brigandage, of which we shall speak in its proper place." (Vattel: The Law of Nations, 1758, Bk. Ill, ch. 1, Carnegie translation, p. 236.)

John Stuart Mill considers it an "affront to the reader" to discuss war of conquest even as a result of lawful war. (A Few Words on Non-intervention, Frazer's Magazine, May, 1859, p. 773; Cf. Grotius, Bk. II, ch. I, I, §§ 3-4.)

The illegality of conquest is best shown by the practice of states, which furnishes many instances of counter-intervention. It is true that the powers do not come to the support of the state unjustly attacked at the moment when war breaks out. The aggressor may be trusted to choose the moment so that they will not find this convenient. Occasionally the powers intervene to prevent an attack. They did so in 1875 to check Bismarck's onslaught on France, but usually they wait for an opportune moment when the warring states are exhausted by the struggle. England intervened diplomatically, for example, in 1871 to prevent Prussia from exacting as great a pecuniary indemnity as she purposed. This is not a perfect sanction; it is, however, the most effective which international law has yet been able to invent.

"When a state great and powerful in the course of its development has for its expansion a real need for the territory of a small state, it does not seem to me that the conquest of the latter can be contrary to the interests of humanity." (Steinmetz: Evolution Collective, p. 245.) In a contrary sense, see Phillipson: Termination of War, p. 29-30.

Professor Amos S. Hershey writes: "Several leading authorities refuse to recognize conquest as a legal mode of acquiring territory, but this view is in contradiction with the facts of historical development and international practice. Whatever may be said as to the desirability of abolishing the so-called right of conquest, and however desirable that the validity of titles based upon fraud and violence be denied, we cannot substitute our wishes for realities or create rules of international law by ignoring the practice of nations." (Hershey: Essentials of International Law, p. 180-181.) Rivier expresses similar views, and remarks, "Conquest justifies itself by its existence, like war, of which it is a natural consequence ; and I do not believe, notwithstanding the noble and touching words which are spoken and printed, that any statesman directing important international affairs seriously thinks of abolishing it." (Translated from Rivier, vol. I,

1896, p. 181.) Coleman Phillipson (Termination of War, p. 19) falls into the same error. The writers who express this opinion have failed to understand the difference between the acceptance

of de facto possession, whatever its origin, as a basis for recognition, and the acceptance of the legality of conquest per se.

⁴⁴ Almost any of the justifiable grounds for intervention may serve as a pretext for unjustifiable conquest. The reason for this lies in the wide measure of discretion which every state enjoys in deciding when it has reason to employ force. In a preceding note, we have referred to instances of conquest which result from the attempt to enforce reversionary claims to succession. (See Bernard: Non-intervention, 1860, p. 13.)

Exaggerated demands for indemnity is another pretext, and humanitarian intervention is so good a cover for illicit designs of conquest, that in the eyes of some authorities it taints the whole institution. They would, in consequence, cancel humanitarian intervention from the list of justifiable grounds of intervention.

Another disguised form of conquest is a lease for a long term of years, with so complete an exercise of authority as to constitute a virtual annexation. (See Westlake: International Law, vol. I, p. 135-6.) This form of annexation is particularly advantageous because in the event of other nations raising too strong an objection, the lease can be canceled without so serious a hurt to national susceptibilities as would result from the retrocession of territory formally annexed.

A particularly dangerous and popular pretext for conquest is the doctrine of nationality or self-determination, which claims a right for the people of similar race, language, etc., to unite under the same national authority.

Bernard asks: "Is it lawful to invade and conquer, without a quarrel, the territories of a friendly sovereign, provided you are able to affirm that you believe the conquest will be agreeable to his subjects, and can obtain a vote in your favor when it is virtually complete? It seems to be an opinion now in fashion that nationality in such a case is a sufficient plea. I own that I can hardly imagine a doctrine more subversive of morality, or more dangerous to freedom." (Bernard : Non-intervention, 1860, p. 26.)

⁴⁵ The illegality of conquest permits any and all states to intervene with force in as far as is necessary to counteract it. This is no interference, but a true example of the vindication of the law such as we discussed above under § 7. (See Westlake, vol. I, p. 317.)

But if the circumstances are such that none of the powers avails itself of the presumption justifying counter-intervention to defend the state which is attacked, practical considerations require that the results of the conflict be accepted as a fact and the right of counter-intervention, not having been exercised at the time, must be considered to have lapsed. Such a rule shocks our sense of justice, but is necessary to the preservation of the society of states, without which all justice would disappear. When the nations in their wisdom shall have established a more perfect union, it may be possible to prevent all aggression and compel the despoiler to disgorge. Under present conditions, the security of international society would be seriously jeopardized and its resources uselessly dissipated by any attempt at a delayed rectification of wrongs which the nations had not the will or the power to prevent at the time of their commission.

This is the reason for the adoption of the principle of uti ossidetis when wars are terminated without a treaty of peace. (Cf. Phillipson: Termination of War, p. 7; cf. Westlake, vol. I p. 65.)

⁴⁶ Cf. Hall, 4 ed., p. 588, 204. It is the custom of many writers on international law to class those cases where the acquisition of territory has been confirmed by treaty as ordinary cessions of territory, without distinction as to whether they are based upon conquest or not. Perhaps a sense of international decency has exercised some influence in this matter, since the territorial growth of all the great states is marked by acts of conquest, even though the decent clothing of a treaty has been thrown about them. A treaty has generally terminated the violent opposition to a conquest, but it cannot transform what was really a conquest into an instance of voluntary cession. The treaty does, however, evidence the fact of the firm possession.

⁴⁷ It is interesting to examine Secretary of State Blaine's plan proposed before the International American Conference (1889-90) for declaring conquest in America illegal. (See Moore: Digest, Vol. I, p. 292-3.)

^47a "Treaties are unable to create anything, they simply show what the powers consider and recognize as the law based on custom." (Translated from J. de Louter: Le droit international public positif, 1920, Vol. I, p. 54.) "A guarantee secures a right, but never gives it originally its force." (Translated from G. Quabbe: Die Völkerrechtliche Garantie, Breslau, 1911, p. 13; cf. K. G. Idman: Le Traité de grantie en droit international, Helsingfors, 1913, p. 81-2.)

⁴⁸ We may give as an example the agreement of Louis XIV not to give any further asylum to the Stuart Pretenders (Sir George Cornewall Lewis: On Foreign Jurisdiction and the Extradition of Criminals, p. 68.)

⁴⁹ Mountague Bernard, discussing the alleged right to intervene "when a right to interfere is secured by contract, as it may be when the intervening state has guaranteed the maintenance of a particular dynasty or of particular institutions, or by virtue of a protectorate or a federal pact" (Bernard: Non-intervention, 1860, p. 11), considered that this exception to the general rule of non-intervention [non-interference] "may be disposed of in a few words," which he proceeds to supply: "A guarantee of a throne to a family, or of a particular form of government to a people, - such a guarantee, for instance, as that of the Protestant Succession in England, of the power of the Stadtholders in Holland, of the Braganza dynasty in Portugal, of monarchical institutions in Greece, - does not, unless by express words or clear implication, extend to internal troubles; and, even when it does, gives to the state undertaking it no right to interfere, unless called upon to do so. Of a general agreement creating such a right whilst the state which yields it remains nominally independent, I do not hesitate to say that it is one into which no government is authorized to enter. No government is authorized to degrade by compact the country it rules into condition of real vassalage, whilst retaining the name and responsibilities of independence. 'It is impossible to imagine,' wrote Lord Aberdeen in 1828 to the Brazilian Envoy, who asked assistance against Don Miguel on the strength of our ancient treaties with Portugal, - 'it is impossible to imagine that any independent state could ever intend thus to commit the control and direction of its internal affairs to the hands of another power.' The separate and secret article annexed to the Treaty of the 12th of June, 1815, between the Emperor of Austria and the King of the Two Sicilies, whereby the latter promised that he would admit, in re-establishing the government of his kingdom, no change incompatible either with old monarchical institutions or with the principles adopted in the Austro-Italian provinces, was defended in 1821 by Lord Liverpool as 'in perfect consonance with the spirit of ancient treaties, founded on the clearest principles of international law, and which had formed part of it from the beginning of time.' I venture to affirm, on the contrary, that it was a vicious engagement, out of which no rights could

arise. The question is less simple, and the principle more feebly applies (if it applies at all), where, as in the case already mentioned of a 'protected' state, or in that of a member of a federal commonwealth like the German, there is a partial loss or surrender of independence. The Austrian intervention in Hesse Cassel in 1850 derived some color, though no justification, from the fact that, for the sake of a perpetual defensive alliance and from the sense of a common nationality, the minor German States have substantially submitted themselves to an indefinite, and therefore mischievous, control by confederates more powerful than themselves." (Bernard: Non-intervention, 1860, p. 14-15; cf. Hall, 1 ed., 1880, § 93, p. 248; ibid, p. 306.)

Twiss, who devotes a considerable space to the discussion of treaties guaranteeing a particular form of government, emphatically declares that "a convention of guarantee nude and absolute does not apply to the case of political changes." (Travers Twiss, Law of Nations, vol. I, 1861, § 231, p. 367-379.)

Halleck remarks: "But, in treaties of equal alliance, between independent and sovereign states, will a stipulation of mediation or guaranty justify generally the interference of one state in the internal affairs of another, contrary to the wishes of the latter ? If the interference is in itself unlawful, can any previously existing stipulation make it lawful? We think not; for the reason that a contract against public morals has no binding force, and there is more merit in its breach than in its fulfilment. (Wheaton, Elem. Int. Law, pt. 2, ch. 1, §§ 13-16; Klüber, Droit des Gens, pt. 2, tit. 1, ch. 2, § 48; Phillimore, On Int. Law, vol. 1, § 393; Poison, Law of Nations, § 5; Bello Derecho International, pt. 1, cap. 1, § 7.)" (Halleck, International Law, ch. IV, § 8, p. 86.)

Creasy quotes this passage from Halleck with approval (First Platform, § 320, p. 306-7.) Theodore D. Woolsey, in the fifth and last edition of his Introduction to International Law, which he revised himself, adds the following explanatory note: "If the principles of intervention cannot stand, treaties of guaranty, which contemplate such intervention, must be condemned also; for they have in view a resistance, at some future time, to the endeavors of third parties to conquer or in some way control the guaranteed states in question. An agreement, if it involve an unlawful act, or the prevention of lawful acts on the part of others, is plainly unlawful." (International Law, 5 ed., 1878, § 43, p. 44.)

Hall (International Law, 1 ed., 1880, p. 248, § 93, 4 ed., p. 305-6) expresses the same idea. But some of the most respectable of the older writers fall into the error of supporting a contrary view. See F. de Martens, Volkerrecht [Bergohm's translation], § 76; Klüber, Droit des gens, 1 ed., 1819, § 51.

Even so late as 1910, we find in T. J. Lawrence's fourth edition of his valuable Principles of International Law (§ 64, p. 126) this persistent error. He writes: "If a state has accepted a guarantee of any of its possessions, or of its reigning family, or of a special form of government, it suffers no legal wrong when the guaranteeing state intervenes in pursuance of the stipulations entered into between them, though it may suffer moral wrong when those stipulations are in restraint of functions it ought to exercise freely, for example, the choice of its rulers." (T. J. Lawrence: Principles of International Law, 4 ed., 1910, § 64, p. 126.)

Professor Lingelbach criticises Lawrence's view that intervention when based upon a treaty is always legal. (See W. E. Lingelbach: Intervention in Europe, Annals of the Academy of Political and Social Science, vol. XVI, July, 1900, p. 24.) Among the writers who deny the right of interference in constitutional affairs even when based upon a treaty are: Rossi (Archives de Droit, 1837, p. 375) ; Rotteck (Einmischung, 1845, p. 26); Milovanowitch (Des traités de garantie en droit international, 1888, p. 38-39) ; Quabbe (Die Völkerrechtliche Garantie, 1911, p. 13) ; Louter (Droit international public positif, 1920, Vol. I, p. 519.) Other older authorities who recognize a treaty as giving a right to intervene are: Günther (Volkerrecht, Vol. I, 1787, p. 287-8) ; Kamptz (Völkerrechtliche Erorterung, 1821, p. 32-5) ; Krug (Dikäpolitik, 1824, p. 329-30.)

⁵⁰ Article III of the treaty of May 22, 1903, between the United States and Cuba provides:

"The government of Cuba consents that the United States may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the obligations with respect to Cuba imposed by the Treaty of Paris on the United States, now to be assumed and undertaken by the Government of Cuba." (Malloy: Treaties, vol. I, p. 364.)

This permission to the United States "to exercise the right to intervene" merely recognizes the supervisory capacity of the United States. It is therefore perfectly legitimate, but at the same time it indicates the partially dependent status of Cuba.

President Wilson's administration, during the winter of 1914-15, sounded the representatives of South American countries relative to the conclusion of a treaty, one of the articles of which, as published in the press, provided for "the mutual guarantee of territorial integrity and of political independence under republican forms of government." (Moore: Principles of American Diplomacy, p. 406-8.)

Of course, it is hardly to be expected that the states of South America would intervene in the internal affairs of the United States for any purpose whatsoever, and such a treaty, although equal or mutual in form, would amount to a guaranty accorded by the United States to the lesser contracting powers, and as such it would be indicative of the relation of protector to protected state. Any right of interference in the internal affairs of the states concerned would not necessarily arise from the treaty, but from the inferior status of certain of these states, of which the treaty would be but the formal expression.

⁵¹ Such an exercise of the power of international police regulation is as we have seen (§ 9) valid only when it is reasonably necessary. But a treaty signed by an overwhelming majority of the states, or even by a concert of powers which exercises certain executive functions is prima facie valid.

The treaties of Westphalia and Utrecht, for example, contain provisions relative to the internal affairs of certain states and authorize intervention therein. The provisions were rightly considered as justifiable efforts to preserve the peace of Europe and the independence of all the states.

The treaty by which the powers agreed to exclude Napoleon from the throne of France was, under the circumstances, a perfectly proper exercise of international police power. But not so the treaty signed by Austria, Prussia, and Russia for the partition of Poland, for it was not done in the interest of Europe. France and England did not consent, and the act itself was evidently undertaken more to sate the greed of the partitioning powers than to insure the peace and security of Europe.

Because general treaties providing for the reasonable exercise of international police are legal, it does not follow that other treaties which contemplate interference by a particular state are likewise legal. On the contrary they are without any legal foundation whatever, unless they merely confirm a supervisory relationship such as has long existed between England and Portugal and now exists between the United States and Cuba. (Cf. Bernard: Non-intervention, p. 15, relative to the German Confederation.) The failure to understand this important distinction has led several of the most respectable authorities into the error of justifying interference in constitutional questions when the action was in fulfilment of a treaty stipulation. (See F. de Martens: Völkerrecht [Bergbohm's translation], § 76; Heffter: Volkerrecht, § 45.) Hall also is confused (see International Law, 4 ed., § 91, p. 300.) Later writers have fallen into the opposite error of passing over international police regulation, and denying any right to intervene in constitutional matters. In consequence of this erroneous premise, they reach the false conclusion that all treaties purporting to give this right are illegal.

Hall is not free from this confusion, although he perceives that the treaties to which he refers were probably once in conformity with international law. He remarks: "It may perhaps at one time have been an open question whether a right or a duty of intervention could be set up by a treaty of guaranty binding a state to maintain a particular dynasty or a particular form of government in the state to which the guaranty applied. But the doctrine that intervention on this ground is either due or permissible involves the assumption that independent states have not the right to change their government at will, and is in reality a relic of the exploded notion of ownership on the part of the sovereign. According to the views which are now held as to the relation of monarchical or other governments to the states which they represent, no case could arise under which a treaty of the sort could be both needed and legitimate. As against interference by a foreign power the general right of checking illegal intervention is enough to support counter interference; and as against a domestic movement it is evident that a contract of guaranty is made in favor of a party within the state and not of the state as a whole, that it therefore amounts to a promise of illegal interference, and that being thus illegal itself, it cannot give a stamp of legality to an act which without it would be unlawful." (W. E. Hall: International

Law, 4 ed., 1895, § 93, p. 305-6.) Continuing in a footnote, he says: "Some treaties, e.g., the Treaties in 1713, by which Holland, France, and Spain guaranteed the Protestant succession in England (Dumont, viii. i. 322, 339, 393), and the Final Act of the Germanic Confederation, arts. 25 and 26 (De Martens, Nov. Rec. v. 489), contains guaranties which clearly extend to cases arising out of purely internal troubles; most treaties of guaranty, however, are directed against the possible action of foreign powers." Hall also gives several of the references which we have cited above, showing the care with which he has considered this question. (See also Halleck, ch. IV, § 8, p. 86; Twiss, vol. I, § 231.)

Although G. F. de Martens (Précis [ed. 1821], § 78) seems likewise to err, we see in a later portion of his work (§ 115) that he only considers a treaty to authorize interference in matters which are not essential to the independence of the State. Bluntchli avoids both pitfalls by a guarded statement: "It may happen that a state intervenes when the rights which have been accorded to it by treaty are affected by changes which occur in the constitution of another state. It may not, however, do so unless international law authorizes it to defend the rights in question. Thus the overthrow of the dynasty, or a change in the order of succession due to a revolution, are questions of constitutional, but not of international law." (Translated from Bluntchli: Das Moderne Völkerrecht, 1868, § 479, note 2.)