themselves by the infliction of hideous torture upon the
animated tools of their enemies, may find hope in the
conclusion of separate treaties by which the possibilities
of conflict shall be eliminated from their mutual inter-
course. In such treaties the great principle of the
obligation to arbitrate should alone be contemplated.
For that alone is the world ripe. That alone can the
family of nations be called upon to guarantee. The
state which refused to arbitrate, however it veiled its
refusal, would put itself at once and hopelessly in the
wrong. In the wrong, precisely as though, having agreed
to arbitrate before a particular tribunal, it should decline
to fulfil its promise, or should quibble about the terms of
the award, or the conditions of reference. And it should
be made clear in every treaty that Arbitration need not
mean Litigation.
CHAPTER II
PENETRATION
The clumsy and dangerous methods of litigation might
indeed be tolerated, when the only questions in dispute
between nations which could generally be referred to
arbitration were those comparatively small matters
which could be settled one way or the other by a cash
payment of some thousands or tens of thousands of
pounds. Such questions might be wrangled over in a
sort of law-court without much harm to anybody. An
occasional real or supposed injustice to a stray foreign
merchant and a consequent litigation ending in the pay-
ment of damages were not very serious affairs. Nations
did not come very much into contact. It was easy to
be particularly careful at the points where they did.
One was particular to behave properly to ambassadors
and consuls. One was scrupulous about foreign vessels.
One respected one's neighbour's landmarks, and one
held civil language regarding his chief magistrate.
But now that the barriers of intercourse have been
broken down — now that every state is flooded with the
subjects of others — now that the demand is made with
ever-increasing volume and insistence that the people
of each state shall be permitted to enter and trade, and
even to settle, in the territory of every other, and actually
that they may do so as of absolute right — the situation
has changed. No longer docs a state, by committing
itself to some particular form of arbitration, incur lia-
bilities which may prove insignificant, and at the worst
may prove expensive. It accepts a regime which at once
24
chap, iij FOREIGNERS ABROAD 25
sets up an imperium in impcrio and aims a vital blow
at its sovereign authority and independence. The ship
of state springs a leak, and may as well be beached at
once in the safe and select company of those barnacled
craft — county councils and parish vestries.
We have referred to the increasing persistence and bold-
ness with which the claim is beginning to be made on
behalf of strangers that they have an irrevocable right to
settle in a country and to be treated, not only no worse,
but a great deal better than its own subjects. They are
to be treated, it seems, not only after the fashion of the
nation which receives them, but after some average
standard to which it is expected to conform. This is new
doctrine. It is not often laid down in set terms. But
it is none the less a working force. The result of it, were
it to receive definite recognition, would be nothing less
than to disestablish states as we know them. Whenever
a community desired to live in a fashion which did not
commend itself to its neighbours, it would be confronted
by the necessity of leaving out of the scope of its activity
this solid mass of undigested and indigestible foreigners.
It cannot bring them into line with its own subjects :
it cannot ask them to go. They remain, a privileged
excrescence, a splinter in the body politic, a standing
defiance to the law, a perpetual challenge to the native.
As has been said, it is new doctrine that any such
position exists. Few jurists have examined with much
care the position of the foreigner abroad. The question
has two faces ; the right of the foreigner to settle, and
his right to particular treatment if he does. And no work
of authority since Puffendorf in terms admits the former.
It is a matter which modern jurists do not treat, because
there is no question about it. Any state has an absolute
right to exclude foreigners if it chooses. And yet, when
we turn from theory to practice, we are at least met by
this consideration, that it is a right which it is exceedingly
difficult to enforce. Nations condescend to all kinds of
26 PENETRATION [chap, ii
sanitary, educational and racial tests, to avoid the im-
putation of excluding individuals of a particular country.
A nation which should distinctly decline the admission
of foreigners in toto would at any rate cut itself off from
international intercourse, and would find itself in a highly
uncomfortable state of reprisals with the rest of the world.
Discrimination against a particular state, even as a matter
of bargaining, would be deeply resented. The difficulty
must then be faced, that we cannot dismiss the problem
of how strangers are to be treated with the simple re-
mark that it is not important how we decide the matter,
since the strangers can always be excluded. Theoreti-
cally, they can. Practically, they cannot.
We are left, then, with the second problem. How are
they to be treated ? The question has been regarded
as one of quite subordinate interest. If foreigners can
be excluded altogether, then they must be thankful to
be admitted on such terms as they can get. Now that
they must in practice be received, and received in
considerable numbers, there is no solution ready. To
elaborate one is the most pressing problem of Interna-
tional Law. In the old days, long ago, the alien lived
entirely on sufferance. Strangers who are in constant
peril of receiving peremptory notice to quit, must in-
evitably comport themselves with a decent deference
to the local power. And it will not do to complain if
they are fleeced by duties, droit d'aubainc, and gabcllc,
or even if they are restricted to particular cities or par-
ticular quarters. Complaint may mean expulsion. Only
in quite special cases of atrocious treatment did the
alien's sovereign feel justified in urging a protest. His
subject had put his head into the lion's mouth : he had
only himself to thank if he got a rough lick from the
royal tongue.
Apprentices, Dr. T. A. Walker tells us, might spend
a happy holiday, in those spacious mediaeval times, in
the sacking of the well-stored steelyard of a foreign
chap, ii] GROTIUS AND VATTEL 27
merchant ; and nobody much cared. Gradually the
position of the alien became securer.
We find Vattel, in 1744, asserting that, though he can x
exclude foreigners, the territorial sovereign, if he admits
them, " s'engage a les proteger comme ses propres sujets,
a les faire jouir, autant qu'il depend de lui, d'une entiere
surete." Vague as these expressions are, they show an
immense advance on the old regime. They must not be
pressed too far. They merely mean that the sovereign
guarantees the general safety of his dominions. Foreigners
are subjected to the law of the land ; 2 and the state, which
can exclude them, can subject them to any restrictions it
pleases, 5 provided these are publicly known. They may
thus be placed in an inferior condition to natives : though
it would be a cause of complaint to single out any nation
for specially unfavourable treatment.
Vattel, in deference to the authority of Grotius, treats
also of what he terms an " imperfect ' duty (i.e. a
duty so imperfect as to be useless). It was at once the
strength and the weakness of Grotius to commingle in
his discussion of legal topics purely ethical considerations.
He brought an invaluable buttress to the support of
propositions of law : but he was not infrequently led
into passing off as law what were nothing but counsels
of perfection. One of these counsels, erected into a duty,
is the duty which he asserts exists, of allowing " harmless
use " of one's own things. Most people would be sur-
prised if they were told that their neighbours had a right
to use their utensils and furniture while not actually in
use by themselves. But the lengths to which Grotius
was prepared to go in this direction can be gathered from
De jure Belli ac Pacis, II. ii. 4, 5; in which no apprehensions
of harm on the part of the territorial sovereign are suffered
to excuse his opposition to the passage of a neutral army.
Possibly the reason operative on Grotius' mind was the
1 Droit des Gens, II. vii. § 94.
2 lb. §§ 102, 105. 3 lb. §§ 94, 100, 125.
28 PENETRATION [chap, n
theological necessity of justifying the narrative in Numbers
cc. xx., xxi. : but he extends the duty to cases of permitting
temporary residence, 1 permitting the transit of merchants, 2
permitting the erection of temporary structures by
passengers, 3 and permitting immigration into unsettled
territories. 1 His further remark that no tax which is
not raised for the purpose of securing the safety of transit
can be imposed on travellers, has been much misunder-
stood and echoes down the centuries as far as Heffter.
" Nee capitatio, civibus imposita ad sustentanda reipub-
licae onera, ab exteris transcuntibus exigi potest," says
Grotius. " Les etrangers," says Heffter, 5 quite generally
and quite wrongly, " ne sont pas soumis aux lois concern-
ant les impots personnelles." But the whole theory of
the so-called " right of harmless use " was one of mere
ethics, entirely divorced from practice. Grotius' scrip-
tural and classical researches needed a corrective. By
the simple process of saying that the territorial sovereign
was the sole and sufficient judge of whether a particular
use of his goods and territory was " harmless " or not, 6
such " rights " were relegated by the successors of Grotius
to the category of " imperfect " (i.e. merely moral) rights,
or counsels of perfection.
They went on talking about them, nevertheless, and
attempting to specify cases in which the harmlessness
of the act could not be disputed ; and in one important
particular, they continued (without altogether appre-
ciating his meaning) to follow Grotius. If a nation docs
concede privileges of this kind to strangers, it must do
so, they said, equally to all. Grotius himself seems not
to have been contemplating these cases of ' harmless
use ' when he enunciated the rule of equality. He
was dealing with cases in which the use is not " harm-
1 Dc jure B. ac P., J I. ii. 15, I. 2 lb. § 14, 5.
» lb. § 15, 2. ' lb. § 10.
5 Droit international dc V Europe, § (>j.
6 Vattcl, ut sup>. §§ 12.S, 130 ; cf. Wheaton, Elements, I. § 12.
chap, n] DE MARTENS 2()
less," and is enjoyed simply by permission : and here he
limited the rule of equality to cases in which the privilege
is the general rule : i.e. a special favour may be granted,
whilst a special disfavour may not be imposed. But
the distinction is not very tenable, and it is reduced
ad absurdum in Vattel.
Vattel (apparently misinterpreting Grotius) puts the
rule of equality on the artificial ground that by treating
foreigners generally in a particular favourable way, the
state shows that there is nothing intrinsically harmful to
itself in the concession. Therefore it estops itself from
alleging that the concession is anything but a " harm-
less use." l Therefore it is bound to grant it to others.
Obviously the same reasoning would apply if the con-
cession were made to five or six particular foreign
nations. Vattel is forced to the lame reply, that to
concede the liberty to particular nations does not show
that it is " harmless." Grotius, however, does not seem
to have rested the rule of equality on the supposed
" duty " of the territorial state to permit " harmless '
use. He is plainly considering only those acts which,
even on his view, the state is free to allow or prohibit.
And his distinction is between the exclusion from a
general privilege and the concession of a particular
favour.
We find de Martens, half a century later, laying down
what may be taken as the established rule of strict law
in modern Europe in such matters. 2
" § 88. Les frais qu'exige le gouvernement doivent
etre supportes par ceux qui profitent des avantages de
son etablissement. A defaut de domaines suffisants a
cette fin, il faut avoir recours aux impots. On peut lever
des impots, meme sur des etrangers qui font un sejour
1 The origin of the inclusion of these " imperfect " rights is
to be found in some moral reflections of Grotius (De j. B. ac P., II.
ii. n), based on the ethical discussions of antiquity.
2 Droit des Gens, III. c. 3 § 88.
30 PENETRATION [chap, ii
chez nous, en considerant (i) qu'ils jouissent de la
protection de l'etat ; (2) qu'on peut imposer cette
condition a leur admission. Ceci a lieu, a plus forte
raison, a l'egard des etrangers qui s'etablissent chez
nous pour y gagner leur vie. Le droit des gens
rigoureux ne defend pas meme d'imposer plus fortement
les etrangers que les citoyens."
The foreigner may therefore be taxed, and specially
taxed.
Nor need he be subject to the same laws, and enjoy
the same rights, as the native : — " Les lois civiles generates
lui sont applicables, a l'egal du citoyen, en tant que les
lois memes . . . ne font point d'exceptions, soit en sa faveur,
soit a son desavantage." ' And he can be excluded
altogether — " s'il est inique de leur refuser le passage
innocent, c'est a elle [l'etat territorial] a juger si le
passage qu'on demande est tel . . ."
The doctrine of " harmless use " is here reduced to
an academic figment. It may be interesting to speculate
on what might have been the consequences, if Grotius'
scheme, in which it was a real and important institution,
had been generally accepted. But that scheme never
had the least chance of acceptance. Boiling with the
ferment of a general dissolution of old ties and old
ideas, the world was far from being in a state to receive
elaborate new complexities of jurisdiction. Vassalage
and empire had gone : suzerain and aulic court had
sunk into meaningless titles : the feudal organization of a
thousand years had been shattered, as rocks are shattered
by the inevitable organic growth of living verdure. In
that time of upheaval and dismayed unrest, there was
one thing alone that the politician could cling to — the
Sovereign Independence and Equality of states. Such
an idea as that propounded by Grotius was essentially
inconsistent with that cardinal conception. Its elabora-
tion was a premature attempt to make states formally
1 Droit des Gens, III. c 3 § 85.
chap, ii] THEORY AND PRACTICE jl
interdependent, when independence was the life-breath
for which they were desperately gasping. It was "a
pious imagination," in a truer sense than that in which
Moray used the words of Knox's theoretic dreams. For
the dreams of Knox may come true : and the dream of
Grotius remains an imagination for ever.
In case of a denial of justice to a foreigner in the ordinary
civil courts, de Martens (§ ioo) concedes that his state
may raise a diplomatic complaint, and enforce it in the
last resort by reprisals (but, apparently, not by war).
And he also says that injuries to a stranger must be
criminally prosecuted just as though a native were the
injured person.
Although, therefore, the views of Vattel and the doc-
trinaire school on the one hand, and those of de Martens
and the positive school on the other, vary so widely
in form, they really amount to much the same thing.
The mode of expression of the former school is chosen so
as to avoid formally representing the law as different
from what pious aspirations would wish it to be. The
latter is not concerned at the discrepancy, and leaves
amelioration to conscious change in the future. Both
are agreed that a nation must be master in its own house.
It ought not to be a dog in the manger ; but, practically,
it may if it likes. It can tax the foreigner as it pleases,
if it is careful not to say that the money is solely
intended for political aggrandisement. It need not
distribute its favours equally, though it must not refuse
them when to refuse would be an insult, as in the case
of the people of one nation being singled out for the
refusal of privileges freely enjoyed by the rest of the
world.
Where the two schools appear to part company is on
the question of the equality of stranger and native. De
Martens says plainly that the laws need not be the same
for both : Vattel is driven to say that the foreigner need
not be admitted except under such restrictions as the
32 PENETRATION |chap. h
territorial state in its uncontrolled discretion thinks
necessary. There is little difference in practice between
the two propositions. Both agree that if strangers are
admitted, they must be on an equality with natives,
not in the sense of having equal rights, but in the sense
of having them equally protected. Neither lays down in
clear terms the limits, if any, beyond which the home state
may not go in imposing restrictions. De Martens says
that it must do its visitors justice. But he obviously does
not mean " distributive " justice. The home state is not
bound to make things pleasant for them. All that is meant
is that such rights as it concedes must be fairly and ade-
quately protected. The nominal grant of a right which
the courts are too prejudiced or corrupt to enforce, is a
mere trap for foreigners. But it is extremely invidious,
in practice, to bring a charge of bias or corruption against
the courts of a friendly power. And nations which are
not troubled by such scruples of delicacy are only too
apt to lay the misfortunes of their subjects to the account,
not of a state's harsh laws, of which they cannot complain,
but to that of its tribunal's misbehaviour, of which they
can.
Apart from this correct, but delicate, requirement of
honesty in the administration of the law, de Martens'
views are reproduced by Kliiber, who wrote a few years
later : l
" Le droit de propri6te de l'etat etant independant de
toute influence etrangere, il s'ensuit, que l'etat pcut exclure
tout etranger de . . . l'usage de son territoire dans les cas
de necessite, 8 mais encore de tout autre usage qui pourrait
en etre fait, sans d'ailleurs lui nuire d'une maniere quel-
conque, par exemple le passage ou sejour, le commerce, un
etablissement ou unc acquisition ; il est librc de n'admettre
1 Droit des Gms Modcrne de V Europe (1818), § 135.
2 This right of using a neighbour's goods, if " necessary " for
one's own support, was, like " harmless " use, conceded by
Grotius, as " necessary " use.
chap, ii] klOber 33
ces sortes d' usage de son territoire que sous certaines
conditions ou restrictions, par exemple de se legitimer,
de payer certains impots, de se soumettre durant le sejour
dans le territoire aux lois du pays, notamment au droit
d'aubaine, 1 d'y etre traite en sujet temporaire, etc."
And if the home state exercises its strict rights with
leniency in practice, this creates no reason why it may
not exert them less liberally if it thinks fit. The usage,
indeed (he adds), is to exercise much leniency, especially
in matters of commerce.
Kluber invokes the authority of Gunther (II. pp. 230-
234). Nations, says the latter, have no effective right
available for their relief, on account of their mere situa-
tion, when they are cut off by the territory of another
state (as happens in the case of upper riparian states).
Nor have they any absolute right (except for self-pre-
servation) to transit across its territories, or to interference
with it in any way. But Moser, who wrote ten years
before Gunther, is the real fountain of the practical theory
which thus appears in Gunther, Kluber and de Martens.
The conjecture may be hazarded that Moser, versed as
he was in the law of the Germanic Empire, extended to
the independent states outside its orbit the legal con-
ceptions which prevailed within it. Nobody would
believe that the Grand Duke of Saxe-Altenburg had
any right to borrow the Bishop of Mayence's horses,
for " innocent use," when His Eminence was away from
home. No one would think that the Elector of Hanover
had the right to march troops along the King of Prussia's
highway, after the fashion of Joshua. No more, then,
had any Czar of Muscovy or King of Portugal the right
to do the like. From this date, the bold and elastic
speculations of Grotius gave place, even in theory, to
the quasi-municipal legalism of modern International
Law. Grotius was before his time. The application of
1 And therefore to laws which do not apply to the native, and
which confiscate a deceased foreigner's property.
3
34 PENETRATION [chap, h
his theory postulated a society more advanced in ethics
than that of either his or the present day. Hard necessity
compelled the acceptance of a more rigid system. The
one thing needful was to uphold the absolute sovereignty
and independence of states. It was necessary to throw
no question upon this keystone of the post-reformation
system, by insisting on that interdependence of states
which was involved in the idea of the right to " innocent
use." " Innocent use," as a substantial right, had to
disappear. Vattel emptied it of meaning, and his suc-
cessors denied its validity and competence. Its ghost
still haunts the discussion of territorial waters.
Throughout, then, we see the original principles
persisting. With the single exception of the theoretical
attack on it from the seventeenth to the eighteenth
centuries — an attack which produced not the slightest
effect on practice — it is regarded as within the absolute
right of a sovereign to exclude foreigners at pleasure,
and to subject them to any restrictions whatever when
admitted. The real march of progress was in a different
direction. It lay, not in securing an illusory equality
for foreigners with subjects, but in realizing an elementary
security for their freedom from gross ill-treatment. For
a sovereign to entice foreigners into his dominions by
a misleading promise of security was regarded as un-
lawful. 1 Gross cruelty to foreigners equally became a
subject of complaint.
As early as 1579, t° avoid international embroilments,
the Netherlands provinces, at their union, mutually
agreed — " de faire bon bref droict, et expedition de
justice, aussi bien aux forains et etrangers, qu'a leur
sujets et citoyens," providing that " si aucune d'entre
elles y estoite defaillante, les autres leur conf£der6es
tiendront la main, par tous moyens raisonables et con-
venables, que cela soit faict, et que tout abus qui le
pourroient empescher, ou retarder le cours de justice,
1 Cf. Vattel, ut sup. §94.
chap, n] PRACTICAL LIMITS 35
soient corrigez et reformez, selon droict, et suivant les
privileges et anciennes coustumes d'icelles." '
And by the Grand Design of Henry IV., each subject
sovereign, it was proposed, — " exterminera a ses frais les
voleurs et les bandits sur ses terres, et les pirates sur ses
cotes, sous peine de dedommagemcnt." 2
When the Hamburg senate gave up Napper Tandy
to Great Britain, Napoleon laid an embargo on Hamburg
ships, on the ground that the city had outraged a French
citizen. 3 The state papers of the ensuing century are full
of such reclamations against the ill-treatment of aliens.
We may fairly discount the flamboyant quixotisms of what
may be termed the civis Romanus period, in which the
chivalry of England and of France appeared as the patrons
of a Potent in Bonhomme and of a David Pacifico. The
story of Pacifico's furniture, for which we imperilled the
peace of Europe, is by this time sufficiently familiar in this
country. 4 Less is known of that less reputable worthy,
Potentin Bonhomme. His championship by the govern-
ment of Louis Philippe was of a piece with that monarch's
hectoring policy in Tahiti and elsewhere, which was
pilloried by Landor in a well-known " Imaginary
Conversation." Convicted of a disreputable offence
against public decency and Catholic sentiment — the
details are recounted in Vol. XVIII. of the British
State Papers — Bonhomme was sentenced in the regular
course of justice to a degrading penalty, from the
completion of which he was rescued by French
cannon.
When we are inclined, in our insular modesty, to
believe that we alone could produce an adept in blague
like Palmerston, we may think of Count Mole and Louis
Philippe and be comforted. Henry Temple was only a
1 Dumont, Traites, V. i. 326, Art. 17.
2 See Evans-Darby, International Tribunals, p. 29.