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reconstruction of houses, factories, and other
edifices should then be speedily brought to
completion by German workmen at Ger-
many's expense, aided by those natives who
for the time being have no other employment,
all their labor to be paid for by Germany.
In so far as the German shipyards can re-
place the tonnage destroyed, they should be
at once employed for the purpose ; and only
such ships should be allowed for German
trade as may be necessary for the distribu-
tion of Germany's just proportion of over-



seas commerce. The other forms of indem-
nity would not be cancelled by this process
of restoration; but the liquidation of these
obligations might be ultimately accomplished
by the saving of all expense for military pur-
poses beyond mere domestic police duty in
Germany, by special import licenses on Ger-
man goods, and by the appropriation of a
percentage of the profits of Germany's coal
and potash mines.

This would be undoubtedly a heavy bur-
den for a conquered people to bear; but it
is less than it was the German purpose to
impose upon the innocent victims of their
imperial schemes of conquest.

Has the alleged German democracy any
intention gracefully to accept such obliga-

It will be noted that under the fourteen
rubrics of peace proposed by the President
of the United States, reparation and indem-
nity are not included. "Belgium," the sev-
enth rubric declares, "the whole world will
agree, must be evacuated and restored;" but
the restoration here referred to, as the fol-


lowing words imply, seems to relate to "the
sovereignty which she enjoys in common with
other free nations," while no mention is
made of the reparation of material damages.

Under the eighth rubric it is proposed that
"All French territory should be freed, and
the invaded portions restored"; but the im-
plication here appears to be the same as that
under the seventh rubric. In both cases it
is the restoration of territory, not reparation
that is specified.

The truth is that, in a military sense, Ger-
many was defeated. Her generals have ad-
mitted that it was useless to continue the
fight. Had no basis of settlement been pro-
posed, the alternative to the invasion of Ger-
many by the Allies and an allied victory pro-
claimed at Berlin would have been an im-
mediate unconditional surrender. The terms
of the peace would then have been the con-
ditions to be laid down by the conquerors.
Who then will deny that there would have
been a clearer case for the conditions which
the Allies must in Justice impose, and less
opportunity for a plea that only the four-


teen rubrics should be discussed and Ger-
many's interpretation of their meaning con-
sidered, if the surrender were in no way con-
nected with the alleged "terms" which both
belligerents are assumed to have accepted?

As the case stands, Germany claims the
right to voice her interpretation of those
"terms," and will insist that they be re-
garded in their entirety as a body of condi-
tions, each involving the others. It will be
urged that conditions ought not to be made
more burdensome for a new popular regime
in Germany than were contemplated at the
time the armistice was signed and the alleged
"terms" accepted, while the Kaiser's cul-
pable Government was still in command.

All these claims and pleas must prove un-
availing, for the reason that they are not
just. What gives them plausibility is Ger-
many's assertion that she was led to expect
an advantageous peace on certain conditions,
and that those conditions have now been ful-
filled. One implied condition was, it is held,
that a free people could receive better terms
than a guilty autocracy. The specific terms


of peace were contained in the fourteen
rubrics. On these "terms" a nation that still
takes pride in the cause for which its armies
fought, that abandoned the struggle only
because its force was exhausted, and that has
made no apology for a crime in which it par-
ticipated, now demands to be received as an
equal partner in an international order yet
to be established; if, indeed, any "general
association of nations" can ever be formed
which will "guarantee" the conditions which
these rubrics suggest.

All this does not destroy, and it should not
obscure, the demands of justice to the
nations that have suffered invasion and dev-
astation at the hands of Germany. The
whole scheme of the rubrics aimed at com-
promise. If it has really deceived Germany,
or if its application should leave any of the
injured without redress, it was, indeed, mor-
ally and diplomatically a mistake. The de-
mands of justice, however, remain unshaken.
There can be no binding agreement to do
wrong or to escape doing what is right. The
-alleged terms of peace may have to be inter-


preted again and again; but, wholly irre-
spective of any interpretation, complete
reparation by Germany should be made in
Belgium and France, not to mention other
devastated countries, or the coming peace
will be as wicked as the war.

"No State," says Maximilian Harden,
who now assumes the role of interpreter of
the Germany of which he has long dreamed,
"no State that was snatched along into
this flood of the Deluge can expect other in-
demnity than those which can be effected
by thrift and savings" ; which, he makes clear,
must be the effort of each people for itself.
There are to be, then, no indemnities paid
by Germany. "Taxes and customs duties,"
he says, "that would yield even the interest
on the tens of billions of debt, would neces-
sarily paralyze trade and industry in com-
petition with America, Australia, and the
Yellow World; would necessarily grind to
bits the idea of private property. . . . What
then shall happen? Something that has
never happened before. . . . Let Europe's
war debt become a treasure of atonement.


Let the war loan certificates of all the Euro-
pean States that have participated in this
war . . . serve as legal tender, guaranteed
by all debtors; a form of money which in
every land that is subject to the jurisdiction
of the arbitration court must be accepted in
payment in any transaction and by any cred-
itor at its full face value !"

Thus all the national war debts, Ger-
many's included, it is proposed, should be
pooled in one great "peace fund" and placed
under a central control to prevent the out-
break of future war! "The court of the
nations," so runs the scheme, "serves as
trustee of the treasurer, and sets aside there-
from in equal parts out of the certificates of
indebtedness of all the States what it needs
for itself and its militia. It may punish dis-
obedience of its judgments in the case of any
individual State by means of a money pen-
alty, declaring valueless all the circulating
certificates of that State, calling them in, or
destroying them, in the case of any State
that breaks the peace without previously be-
ing itself bodily and vitally threatened.



"Here," this writer continues, "is where a
community of European citizenship beckons
us. Thus the Continent would be delivered
from its money stringency; . . . thus it
would gently be obliged to bury quickly and
deeply the useless reminders of futile con-

It is time for Germany, if she would ever
regain the respect of mankind, to dismiss
such fantastic illusions as these, and to take
up the burden of national responsibility in
a serious sense. Let her, first of all, sus-
tain a government that will admit the re-
sponsibility of the nation for the past, and
with which it is possible to deal. Then let
that government assume and enforce those
obligations which a just peace will certainly
impose upon the German nation; not for-
getting that the greatest possible calamity
to mankind would be to write into the Law
of Nations, by absolving the German people
from complicity in a national crime, the
ruinous principle that a "people" is not
responsible for the government it supports,
and that it may therefore exempt itself from


merited punishment by merely changing its
form of government.

Has Germany the character to stand this
test? When she has proved her ability to do
so, then, and only then, can there be a pos-
sibility, when years of fidelity have estab-
lished her good faith, of admitting her to a
place in a League of Nations. If those who
are gathering to conclude peace cannot now
enforce that judgment, then it is more than
futile to hope to enforce such a judgment
in the future; for the contingencies of a fu-
ture in which so great a crime was left un-
punished would be simply appalling to con-



AT no time, perhaps, since history began
to be recorded has there existed so profound
and so universal a conviction of the value and
necessity of law; and particularly of the re-
straint of law in controlling the activities of
independent sovereign States.

Everywhere the necessities, even more
than the volitions, of men have in some form,
established the authority of the State; whose
laws, even though occasionally violated, are
regarded as paramount over the populations
within their jurisdiction. A comparative
study of law discloses the fact that, with
slight and almost negligible divergences, the
great principles of jurisprudence accepted
in all the most highly developed communities
are not only similar but virtually identical.
As a result, that body of customary law
common to different nations, to which the


Roman jurisconsults gave the name Jus
Gentium, and which became the basis of
what we now call International Law, was
believed, until the events of the Great War
disturbed the conviction, to have attained a
consistency of content and a degree of gen-
eral acceptance by responsible States which
placed beyond all serious question its author-
ity as law.

There is, as we all know, some diversity
of view as to what constitutes the law in gen-
eral. If it were otherwise it would be a very
stale and unprofitable profession.

As regards the Law of Nations, which has
temporarily fallen into disrepute as even
more vague and uncertain than other
branches of the law, notwithstanding the as-
persions cast upon it, there is the highest au-
thority, based on judicial decisions, for as-
serting with Sir William Blackstone that,
"whenever any question arises which is prop-
erly the object of its jurisdiction," it is in
England "adopted in its full extent by the
Common Law, and is held to be a part of the
law of the land"; and we may also cite the



opinion of Alexander Hamilton, that it is
not only a part of the Common Law, but
"has become by adoption that of the United

If these rindications of the respectability
of the Law of Nations seem somewhat an-
tiquated, I may, perhaps, be permitted to
recall the fact that, in his address before the
New York State Bar Association, last year,
the eminent Attorney-General of Great
Britain, Sir Frederick Smith, informed his
hearers that when, during the war, it became
his official duty to urge upon the Privy Coun-
cil the idea that no prize court in Great Brit-
ain had the right to challenge or call in ques-
tion the Orders in Council of His Majesty
the King, the Appellate Prize Court decided
against the contention of the Attorney-Gen-
eral and declared: "We sit here as a Court
of International Law, and in spite of what
our enemies have done we still believe there
are binding doctrines of International Law,
and sitting here as we do sit as a Court,
whose duty it is to construe those doctrines,



we utterly refuse to be bound by Orders in
Council issued by the Executive."

The Honorable Attorney- General stated
that, "whether right or wrong/' this was the
decision of the Court. The reasons why the
Court thought its decision right are fully
given by the late Lord Parker of Wadding-
ton, in the Report on the case of The
'Zamora. "In the first place," he says, "all
these matters upon which the Court is author-
ized to proceed, are, or arise out of, acts done
by the sovereign power in right of war. It
follows, the King must directly or indirectly
be a party to all proceedings in a court of
prize. In such a Court his position is, in
fact, the same as in the ordinary courts of
the realm upon a petition of right which has
been duly fiated. Rights based on sover-
eignty are waived, and the Crown, for most
purposes, accepts the position of an ordinary
litigant. A Prize Court must, of course,
deal judicially with all questions which come
before it for determination, and it would be
impossible for it to act judicially if it were



bound to take orders from one of the par-
ties to the proceedings."

"In the second place," continues the Re-
port, "the law which the Prize Court is to ad-
minister is not the National, or, as it is some-
times called, the Municipal Law, but the
Law of Nations in other words, Inter-
national Law. ... It is obvious that, if and
so far as a Court of Prize in this country is
bound by and gives effect to Orders of the
King in Council purporting to prescribe or
alter the International Law, it is administer-
ing not International Law but Municipal
Law ; for an exercise of the prerogative can-
not impose legal obligation on any one out-
side the King's dominions who is not the
King's subject. . . . On this part of the
case, therefore, their Lordships hold, that
Order XXIX, Rule 1, of the Prize Court
rules, construed as an imperative direction
of the Court, is not binding. . . . Their
Lordships will humbly advise His Majesty

It is a grateful and refreshing assurance
to all those who believe in and love the reign


of law, to know that there is, in at least one
country in the world, a Court that, even in
the midst of war, has the purity and the
sense of responsibility to assert, against the
Law Officers of the Crown, that it will take
no orders from those whose authority is
merely the national interests of the moment ;
but it is still more reassuring to know that,
in the judgment of such a Court, Inter-
national Law, despised, rejected, and re-
viled by those who should be its champions,
not only lives and speaks with a voice of
authority, but that its voice commands
silence on the part of the interests even of
the State.

Happily, this is no new doctrine. For us,
as Mr. Justice Gray, speaking for the
Supreme Court of the United States, has
said, in the case of The Paquete Habana, in
1899, "International Law is part of our law,
and must be ascertained and administered
by the courts of justice of appropriate juris-
diction, as often as questions of right depend-
ing upon it are duly presented for determi-
nation" ; and it is no reflection upon the loyal



adherence of the United States to this prin-
ciple that, in appealing to International
Law as binding in questions of prize, the
British Prize Courts have themselves ap-
plied the decisions of American judges to
which objection was once raised in the period
of tke Civil War.

Even a moment's reflection will show that,
in determining to decide cases of prize by the
Law of Nations, and not under the Orders in
Council of the King, the British Court was
following a rule of action that was less
warped by private interest and more in-
fluenced by the spirit of equity. It was, in
fact, deciding according to International
Law, because it is better law.

And why is it better law? It is better law
because it is in no sense ex parte. It is law
fit to be made universal. Even in the more
liberal-minded States, the development of
law is under the restraint of the class of in-
terests that have acquired power, whatever
they may be, and proceeds with little control
by interests that are just as real but less in-



When it comes to the absolute govern-
ments, there, Law is merely a decree ; and is
in no sense based upon its true foundation,
which is mutual obligation, recognized and
rendered effectual by reciprocal agreement
to adopt a controlling principle. It is of
the very essence of absolutism that it is
against every principle that will bind itself,
and for every advantage that will increase
the power of the ruler over the ruled.

Now the underlying conception of the
Law of Nations is this : that there are, in this
realm of legal relations, no rulers who alone
can make the law, and no subjects who are
compelled to submit to it. It is a realm in
which the jurist seeks to discover what is
just; and the nations, after considering
whether or not it is so, agree to accept and
abide by the results.

It did not take long for independent
minds seeking new foundations for the State,
to perceive that, underlying this conception
of law, there is the basis of a new system of
political philosophy, the idea of natural
rights ; which, from the time of Grotius, had



been given wide publicity as a revival of doc-
trines fundamental to the Roman Law.

It had not been very distinctly recalled
until a foreigner, Professor De Lapradelle,
reminded us that from 1758 to 1776, when
American political conceptions were in pro-
cess of formation, the great jurists who wrote
of Natural Law as the basis of the Law
of Nations, such as Grotius, Pufendorf, and
Burlamaqui, "were read, studied, and com-
mented upon in the English colonies of
America." As early as 1773, the Law of
Nations was taught in King's College (now
Columbia University) , and "in 1774 Adams,
and in 1775 Hamilton, quote or praise Gro-
tius and Pufendorf."

A very considerable influence appears to
have been exercised upon our revolutionary
fathers by the Swiss jurist, Vattel, whose
work on "The Law of Nations or the Prin-
ciples of Natural Law" was inspired by a
spirit of political liberalism, that was without
precedent. No previous writer had ven-
tured to class a sovereign as a criminal, but
Vattel had the courage to write :



"If then there should be found a restless
and unprincipled Nation, ever ready to do
harm to others, to thwart their purposes, to
stir up civil strife among their citizens, there
is no doubt but that all the others would have
the right to unite together to discipline it,
and even to disable it from doing further

Not hesitating to place such nations in the
criminal class, he does not shrink from ap-
plying to them the rigors of the criminal
law. "They should be regarded," he says,
"as enemies of the human race, just as in civil
society persons who follow murder and arson
as a profession commit a crime not only
against the individuals who are victims of
their lawlessness, but against the State, of
which they are the declared enemies." And,
in closing his paragraph with the recommen-
dation of punishment, he adds, "Of that
character are the various German tribes of
whom Tacitus speaks."

Three copies of Vattel's book, brought out
in a new edition specially adapted for
America, in 1775, by Dumas, a Swiss re-



publican resident in Holland, were sent to
Franklin; who, in acknowledging it, says:
"It came to us in good season, when the
circumstances of a rising State make it neces-
sary frequently to consult the Law of
Nations." One copy was sent to Harvard
College, another was deposited with the
Library Company of Philadelphia, and of
Franklin's own copy he says, "it has been
continually in the hands of the members of
our Congress now sitting."

States, according to this teaching, are
subject to the principles of "right reason,"
supplemented by compacts freely made be-
tween them. Thus, in the minds of the co-
lonial statesmen of America, in connection
with the Common Law they had brought
from England, law, in its political sense,
came to be identified with covenants of peo-
ples or covenants of States, freely entered
into, in a manner explicit or implicit. Con-
stitutions, statutes, and treaties had, in their
view, the same ultimate authority, the rights
of man: Constitutions as concessions to the
necessity of government, which they limited


and defined; statutes as concessions to the
necessity of civil order, within the limits of
ordained government; and treaties as conces-
sions to the necessity of coexistence, har-
mony, and safety, between independent

Quite logically, for the first time in history,
they wrote into the Federal Constitution the
remarkable words: "This Constitution and
the Laws of the United States which shall
be made in pursuance thereof ; and all Trea-
ties made or which shall be made, under the
Authority of the United States, shall be the
Supreme Law of the Land ; and the Judges
in every State shall be bound thereby, any-
thing in the Constitution or Laws of any
State to the contrary notwithstanding."
(Article VI.)

I have referred to these as "remarkable
words," because they not only recognize in
treaties the quality of legal perfection, but
actually incorporate the covenants entered
into by the United States as constituting
equally with the Constitution itself, "the
Supreme Law of the Land."


In this the action of the United States
stands alone, the highest tribute ever paid to
the authority of law.

In this country there has never been any
doubt that international morality is binding
upon sovereign States; but not in a strictly
legal sense. Nor is it possible to consider as
law, in its proper meaning, those usages
which are not in harmony with the social
standards and necessities of the present age.
In so far as these elements in the Law of
Nations are antiquated or without the
authority created by consent, the fields of
activity they cover need to be provided for
in a new fashion, namely, by duly considered
special agreements.

It is, therefore, necessary to place em-
phasis upon the other element in the Law of
Nations, which is incontestably not only per-
fect law, according to the most severe cri-
teria of legality, but the most perfect ex-
ample of lawmaking in the whole broad field
of legislation. I refer, of course, to treaties
and conventions, freely and deliberately ne-



gotiated and ratified by a constitutionally
authorized legislative body.

It is impossible, in view of the modern
methods of lawmaking, any longer to accept
the idea of law expressed in the classic defi-
nition of the distinguished English jurist,
John Austin, who defines law, as "The com-
mands issued by a sovereign authority to per-
sons in general subjection to it"; which is a
description of law in an order of things that
has, for the most part, passed away.

Under such a definition, there could, of
course, be no place for International Law,
a law created between sovereign States for
their mutual governance ; nor could there be
law of any kind, in the modern legislative
sense, for any self-governing people. Where
may we look for a "sovereign authority" that
can issue "commands" to sovereign States?

Such an authority would be a superstate,
a new entity, holding formerly sovereign
States "in general subjection to it."

And yet, sovereign States, which do not,
and cannot, subordinate themselves without
self -extinction, to a supernational authority,



do and must create law for the regulation
of their own conduct toward one another,
a law not imposed from above, but created
by themselves, valid and binding between
them; in strict and* literal expression, a
law international.

It would, I think, not be an error to say,
that International Law, when made by gen-
eral treaties, illustrates the perfection of the
law-making process; because it is the result
of a mode of procedure in which there is a
complete substitution of agreement for com-
mand. If it is true, that government by the
consent of the governed is the highest
political ideal; then the agreements of par-
liaments, congresses, councils, and legisla-
tures representing the people are the highest
type of law ; and, indisputably, international
treaties and conventions, ratified reciprocally

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Online LibraryDavid Jayne HillPresent problems in foreign policy → online text (page 4 of 17)