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The Outlawry of War

Published online by Cambridge University Press:  04 May 2017

Quincy Wright
Quincy Wright*
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Extract

In the October,1924, number of this Journal the writer examined the changes in the conception of war since the middle ages with the conclusion that under present international law “acts of war” are illegal unless committed in time of war or other extraordinary necessity but the transition from a state of peace to a “state of war” is neither legal nor illegal. A state of war is regarded as an event, the origin of which is outside of international law although that law prescribes rules for its conduct differing from those which prevail in time of peace. The reason for this conception, different from that of antiquity and the middle ages was found in the complexity of the causes of war in the present state of international relations, in the difficulty of locating responsibility in the present regime of constitutional government, and in the prevalence of the scientific habit of attributing occurrences to natural causes rather than to design. It was recalled, however, that the problem of eliminating war has gained in importance while the possibility of solving it through the application of law has improved with the development of jural science. Thus efforts have been made to eliminate war(1) by defining responsibility for bringing on a state of war,(2) by defining justifiable self-defense, and(3) by providing sanctions for enforcement.

Type
Research Article
Information
American Journal of International Law , Volume 19 , Issue 1 , January 1925 , pp. 76 - 103
Copyright
Copyright © by the American Society of International Law 1925

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References

1 Vol. 18, pp. 756–767.Google Scholar

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8 Hearings before Committee on Foreign Relations, U. S. Senate, 1919, 66th Cong., 1st sess., Sen. Doc, 106, pp. 329, 336, and special memorandum of American members, ibid., pp. 366, 368. See also this Journal, Vol. 18, p. 757, note 9.Google Scholar

9 Senate Hearings, supra, pp. 365, 371, 376.Google Scholar

10 Senate Hearings, supra, p. 328;Google Scholar Garner, op. cit., Vol. 2, p. 492.

11 Garner, op. cit., Vol. 2, p. 497, commends the peace conference’s precedent of holding individuals liable, but only for acts criminal in character.Google Scholar

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13 Art. 228. See also Senate Hearings, supra, p. 328.Google Scholar

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18 Supra, note 12. See second recommendation of commission of jurists appointed to draft a statute for a permanent court of international justice, 1920, League of Nations, “Report of Secretary General to First Assembly,” pt. 1, sec. 6, Official Journal, Vol. 1, No. 8, p. 21, and Reeves, Proceedings American Society International Law, 1921, pp. 65–67, 69.Google Scholar

19 Sen. Res. 441, 67th Cong., 4th sess.

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22 Washington Treaty on Limitation of Naval Armament, 1922, U. S. Treaties, Vol. 3, p. 3100;Google Scholar League of Nations proposal for limitation of military expenditures and limitation of land armaments, Wright, Limitation of Armament, p. 19;Google Scholar League of Nations, Resolutions of First Assembly, p. 31;Google Scholar Monthly Summary, Vol. 1, p. 132, Vol. 2, p. 228, Vol. 3, p. 224, Vol. 4, Supp., Oct., 1924, p. 34;Google Scholar Central American Treaty, 1923, this Journal, Vol. 17, p. 316, and discussion, Fifth Pan-American Conference, Report of United States Delegates, pp. 21–26.Google Scholar

23 U. S.-Great Britain, Great Lakes disarmament agreement, 1817, Malloy, Treaties, p. 6281;Google Scholar League of Nations Covenant, Art. 22 (Mandates);Google Scholar Pacific Island disarmament, Washington Treaty on Limitation of Armament, Art. 19; Wright, Limitation of Armament, pp. 11,14, 16, 20.Google Scholar

24 The Bryan peace plan originally forbade changes in military and naval programs during the period of investigation but this was eliminated from the completed treaties. See Scott, ed., Treaties for the Advancement of Peace, 1918–1914, p. 34.Google Scholar Military preparations and mobilization pending investigation are, however, forbidden by the Central American inquiry convention of February 7, 1923 (this Journal, Vol. 17, p. 318), and by the conciliation convention proposed by the Fifth Pan-American Conference at Santiago, May, 1923, Articles 1, 5.Google Scholar (Report of United States Delegates, p. 22 and this Journal, Vol. 17, p. 519.)Google Scholar See also Geneva Protocol on Pacific Settlement of International Disputes, Arts. 7, 8, infra, note 46. The importance of limiting mobilization is indicated by the frequency with which it figures as a reason for declaring war. See German Declaration of War against Russia, August 1, 1914, Naval War College, International Law Documents, 1917, p. 100.Google Scholar

25 M Algeciras Treaty, 1906;Google Scholar League of Nations Covenant, Art. 22 (Mandates); Washington Conference Treaty on Principles and Policies concerning China, 1922; Berlin Act on Central Africa, 1885.

26 Wilson and Tucker, International Law, 8th ed., p. 317;Google Scholar proposed St. Germain and Pan American agreements, infra, note 31.

27 Oppenheim, International Law, 3rd ed., Vol. 1, sec. 164–167;Google Scholar Borchard, op. dt., pp. 214- 216, 223;Google Scholar Wright, op. cit., pp. 180, 187;Google Scholar “Report of Commission of Jurists on Janina–Corfu Affair,” this Journal, Vol. 18, p. 543.Google Scholar

28 Moore, , International Law Digest, Vol. 2, p. 481;Google Scholar Wright, op. cit., pp. 183–184; Central American Treaty of Peace and Amity, 1923, this Journal, Vol. 17, p. 315.Google Scholar

29 U. S. v. Arjona, 120 U. S. 479;Google Scholar Wright, op. cit., p. 182.Google Scholar

30 Fenwick, The Neutrality Laws of the United States, 1913;Google Scholar Wright, op. cit., pp. 181–182;Google Scholar The Enforcement of International Law through Municipal Law in the United States, 1916, pp. 114 et seg.Google Scholar

31 Garner, op. cit., Vol. 2, pp. 375–405, 446–447;Google Scholar Brazilian neutrality rules, Aug. 4, 1914, Art. 4;Google Scholar Dutch neutrality declaration, Aug. 5, 1914, Art. 2, Naval War College, International Law Documents, 1916, pp. 10, 62;Google Scholar U. S. Acts, March 14,1912, Jan. 31, 1922, authorizing embargo of arms shipments to neighboring countries in a “condition of domestic violence” or to countries where the United States exercises extraterritorial jurisdictionGoogle Scholar; Wright, Control of American Foreign Relations, p. 183;Google Scholar Negotiations for treaty to forbid arms shipments to revolutionaries in American countries, President Wilson, address to Pan-American Scientific Congress, 1916, World Peace Foundation, Pamphlets, April 1916, pp. 104–110;Google Scholar agreement for restraint of arms trade in China, May 5,1919, U. S. Treaties, Vol. 3, p. 3821;Google Scholar Draft Treaty of St. Germain on arms trade, Sept. 10, 1919, ibid., p. 3752 and effort of League of Nations under Arts. 8 and 23 (d) of the Covenant to modify it so that it will be acceptable to the United States. See Assembly resolutions, supra, note 22, and Wright, Limitation of Armament, p. 20.Google Scholar

32 MeKean, C. J., charge to Grand Jury of Philadelphia in Cobbett Case, Wharton, Criminal Law, Vol. 2, sec. 1612a, 1900.Google Scholar Libels against foreign states are indictable at common law, ibid., and Stephen, Dig. Crim. Law, Art. 99; Moore, International Law Digest, Vol. 2, pp. 430–432;Google Scholar Wright, Control of American Foreign Relations, p. 188.Google Scholar

33 Ibid.; Field, International Code, sec. 207; President Wilson, proposal at Pan-American Scientific Congress, supra, note 31; Austria-Russia-Prussia, Convention for Extradition of Political Offenders, 1834, Br. and For. St. Papers. Vol. 53, p. 872;Google Scholar Stowell, Intervention in International Law, p. 329.Google Scholar See also supra, note 28.

34 Phillipson, International Law and Custom of Ancient Greece and Rome; Vinagradoff, Outlines of Historical Jurisprudence.

35 Moore, International Law Digest, Vol. 6, pp. 1027–1037;Google Scholar Borchard, op. cit., pp. 413–427;Google Scholar Stowell, Intervention in International Law, pp. 4–44;Google Scholar Wright, Enforcement of International Law through Municipal Law in the United States, chap. 6.Google Scholar

36 Infra, note 67.

37 This Journal, Vol. 18, p. 756, note 8.Google Scholar

38 Supra, note 8. The question of liability for beginning the war must be distinguished from the liability for invading Belgium which was protected by special treaty (infra, note 44) and from the liability for violations of the law of war (supra, note 13). The IV Hague Convention, 1907, Art. 3, expressly imposes a financial liability upon the state for the latter and by the pre-armistice agreement of November 5, 1918, Germany agreed to compensate “for all damages done to the civilian populations of the allies and their property by the aggression of Germany by land, by sea and from the air” (Naval War College, International Law Documents, 1918, p. 212).Google Scholar This was construed by the United States and Germany to refer to damage from violations of the law of war and direct physical damage to civilians and their property (Baruch, Making the Reparation and Economic Sections of the Treaty, p. 19, German note, May 25,1919,66th Cong., 1st sess., Sen. Doc. 149, pp. 65–68).Google Scholar At the Peace Conference, however, this interpretation was not accepted. Although Germany was not actually held to the full liability of Art. 231, because “the Allied and Associated Governments recognized the inadequacy of her resources,” and although Art. 232 practically repeated the pre-armistice agreement in requiring Germany to compensate only for all damage done to “the civilian populations of the Allied and Associated Powers by such aggression by land, by sea and from the air,” the legal scope of her obligation was defined in the annex interpreting this article which included all civilian damages whether resulting from illegal acts or not and whether resulting directly or indirectly from military action. Thus pensions and separation allowances were included. It should be noticed, however, that in fact the amount of reparations did not depend on these categories which made a sum far beyond Germany’s capacity, but on the capacity of Germany to pay. The Reparation Commission was required to estimate the total amount on the basis of the annex categories and report it on May 1, 1921 (Art. 233), and theoretically could not later cancel any part of this but practically could do so through its power “to extend the date and to modify the form of payment” from time to time in consideration of “the resources and capacity of Germany” (Art. 234). Thus the practical working of the reparation clauses depended on the character of the reparation commission. Unfortunate results followed when its character was wholly changed by the withdrawal of the United States. Legally the obligation of Germany was described by Article 232 and the annex and practically the obligation was hmited by her utmost capacity to pay, a criterion reestablished by the Dawes plan, but neither of these criteria proceed on the theory of compensation for illegal acts but on that of German liability for beginning the war described in Article 231. This was recognized by the Allies in answering the German protests before signing the treaty (Notes, May 20, and June 16, 1919, Sen. Doc. 149, cited pp. 65,123,127) and before accepting the final reparation bill.Google Scholar On March 3,1921, Lloyd George said, “For the allies, German responsibility for the war is fundamental. It is the basis upon which the structure of the treaty has been erected and if that acknowledgement is repudiated or abandoned the treaty is destroyed.” International Conciliation, No. 162, May 1921, p. 162;Google Scholar Wright, Minnesota Law Review, Vol. 5, pp. 536–538;Google Scholar Kraus, Germany in Transition, 1924, p. 47.Google Scholar

39 This Journal, Vol. 18, p. 763, note 41.Google Scholar Germany presented an historical argument on the subject before signing the treaty and since has published much archival material and held an elaborate investigation. See German note May 13, 1919, and Allied reply June 16, 1919, which discusses a lengthy German analysis of the origin of the war not printed in this compilation, Sen. Doc. 149, cited pp. 64, 123–126; Die Grosse Politik der Europaeischen Kabinette, 1871–1914 (probably thirty volumes, of which twelve have appeared, 1924);Google Scholar Die Deutschen Documente zum Kriegsausbruch (extracted from German archives by Karl Kautsky), edited by Schucking, Montgelas and Bartholdy, 4 vols., Charlottenburg, 1919; Official German Documents relating to the World War, Carnegie Endowment for International Peace, 2 vols., N. Y., 1923 (reports of commission established by German Constitutional Assembly, Aug. 21, 1919).Google Scholar See also Die Kriegschuldfrage, Monatschrift fur internationale aufklarung herausgegeben von der ZentralsteUe fur Erforschung der Kriegsursachen, Berlin, Jan. 1923.Google Scholar

40 Walker, History of the Law of Nations, p. 47.Google Scholar

41 Thus public declaration by a sovereign and observance of the laws of war rendered a war “justum bellum.” Ayala, De Jure et Officiis Bellicis, Book I, c. 2, sec. 34. See also Gentilis, Book I, c. 3; Grotius, Book I, c. 3, par. 4, sec. 1; Walker, op. cit., pp. 247, 252, 488.Google Scholar

42 Similar criteria were used by the medieval church in the Truce of God which prohibited private war during certain days of the week and the Peace of God which prohibited hostilities in certain holy places. See Walker, History of the Law of Nations, pp. 85–86;Google Scholar Hayes, in Walsh, International Relations, pp. 76–78;Google Scholar Krey, “The International State of the Middle Ages,” American Historical Review, Vol. 28, pp. 3–4.Google Scholar

43 Neutralization of areas whereby acts of war are prohibited therein must be distinguished from disarmament of areas. Switzerland is neutralized but not disarmed (Oppenheim, op.cit., Vol. 1, sees. 95,100;Google Scholar Vestal, The Maintenance of Peace, N. Y., 1920, pp. 410–422).Google Scholar The Great Lakes are disarmed but not neutralized (supra, note 83); the Aaland Islands are both neutralized and disarmed (see convention of Oct, 20, 1921).

44 “An obligation for the reparation of these territories—but of these territories only—was acceptable to Germany inasmuch as she had brought the terrors of war upon a foreign country by a breach of international law, viz., the violation of Belgian neutrality.” German commentary on the peace treaty, May 29, 1919, International Conciliation, Oct. 1919, No. 143, p. 1259 and official summary, Sen. Doc. 149, cit. p. 90. This indicates that Germany had abandoned her earlier efforts to justify the invasion of Belgium on grounds of necessity or otherwise (Garner, op. cit., Vol. 2, pp. 186–236).Google Scholar

45 The Stabilization of Europe, Harris Foundation Lectures, University of Chicago, 1924, p. 116.Google Scholar

46 See also draft treaty of mutual assistance distributed by League of Nations Council, October 1923, Art. 9, and draft treaty of disarmament and security prepared by a private American Committee (Shotwell, Miller, Bliss, Harbord, et al.) and distributed by the League of Nations, July 1924, Art. 13. These drafts and the Geneva Protocol may be found in DeVisscher, Stabilization of Europe, appendices, a-c; World Peace Foundation, Pamphlets, Vol. 7, No. 8;Google Scholar Foreign Policy Association, Pamphlets Nos. 28, 29;Google Scholar International Conciliation, Pamphlets, 201;Google Scholar League of Nations Monthly Summary, Vol. 3, p. 237, October 1923, Supp., Oct. 1924.Google Scholar

47 Treaties for the Advancement of Peace between the United States and other Powers negotiated by the Honorable William, J. Bryan, Secretary of State of the United States, with an introduction by James Brown Scott, N. Y., 1920.Google Scholar See also Central American and Pan-American conciliation treaties of 1923, supra, note 24. The same idea is found in earlier American treaties like U. S.-Colombia, 1846, Art. 35 (5) as follows: “If unfortunately any of the articles contained in this treaty should be violated or infringed in any way whatever, it is expressly stipulated that neither of the two contracting parties shall ordain or authorizeany acts of reprisal, nor shall declare war against the other on complaints of injuries or damages, until the said party considering itself offended shall have laid before the othera statement of such injuries or damages, verified by competent proofs, demanding justice and satisfaction, and the same shall have been denied, in violation of the laws and of international right.” See other treaties mentioned supra, note 15, and U. S.-Mexico, 1848, Art. 21, U. S.-Morocco, 1836, Art. 24.

48 V Hague Convention, 1907, Art. 1; Garner, op. tit., Vol. 2, p. 223.Google Scholar

49 Wright, this Journal, Vol. 18, pp. 107, 541–542.Google Scholar Apart from the Covenant such acts would be illegal unless justified by extraordinary circumstances. See also this Journal, Vol. 18, p. 756, note 8.Google Scholar

50 Argentina expressed the view of several of the Latin American states when she reserved on the last clause with the remark: “It does not admit that war can ever be recognized as a lawful measure. The debtor state would often be.ruined with no benefit to the creditor.” Reports to the Hague Conferences, p. 422.Google Scholar See also Higgins, op. cit., pp. 184–197.

51 “Of course this does not mean that we are to cherish the illusion that the real reasons for a war will always be given, but the difficulty of definitely stating reasons and the necessity of advancing reasons not well substantiated or out of proportion to the gravity of war itself, will naturally arrest the attention of neutral powers, and enlighten public opinion.” Reports to the Hague Conferences, p. 503;Google Scholar Higgins, op. cit., pp. 203–204.Google Scholar The reasons given in the declarations and ultimata of the World War are listed in the index, Naval War College, International Law Documents, 1917, p. 262.Google Scholar

52 Supra, note 49.

53 Supra, note 46.

54 The Shotwell draft defines and forbids wars of aggression, acts of aggression short of war, and preparations for aggression (Arts. 1, 2, 4, 8). It authorizes the court on complaint of a signatory to declare that aggression has been committed (Arts. 3, 6) but to avoid the delay which such judgment might require it provides that “a signatory refusing to accept the jurisdiction of the court in any such case (arising from a claim that the treaty has been violated) shall be deemed an aggressor within the terms of the treaty,” and such refusal shall be assumed if the defendent has not submitted to the jurisdiction within four days of the plaintiff’s submission (Art. 5). Premier MacDonald said on September 4, 1924: “The one method by which we can approximate to an accurate attribution of responsibility for aggression is arbitration. . . . The test is are you willing to arbitrate? “ On September 6, Premier Herriot said: “Henceforth the aggressor will be the party which refuses arbitration.”

55 Infra, note 88.

56 The League Covenant has been ratified by fifty-five states and self-governing dominions, all in the world except the United States, Germany, Russia, Turkey, Mexico, Ecuador, Afghanistan, Egypt, and Hedjaz. The II Hague Convention of 1907 has been signed by thirty-four states (ten with reservations) and ratified by twenty-one (four with reservations). The III Hague Convention of 1907 has been signed by forty-two states and ratified by twentyeight. The Bryan treaties have been concluded by the United States with twenty-one states. Similar treaties have been concluded by other pairs of states and a general convention was approved by the Fifth Pan-American Congress at Santiago, 1923, supra, note 24.

57 DeVisscher, op. cit., supra, note 47, pp. 110 et seq. Google Scholar

58 Infra, note 97.

59 Infra, note 116.

60 Nearly all of the fifty odd declarations of the World War included among the “reasons “ such phrases as “acts of aggression,” “acts of war,” “hostile acts,” “invasion of territory,” “defense of colonies,” “protection of national lives and property,” “protection of national rights and interests,” or other phrases indicative of a need of self-defense. See Naval War College, International Law Documents, 1917, p. 262.Google Scholar Acts of force or intervention which do not lead to war are also usually undertaken on the pretext of self-defense. Fenwick, op. cit., pp. 142–162.Google Scholar

61 “Vim enim vi defendere omnes leges omniquejura permittunt,” Paulus, Digest, IX, 45, 4;Google Scholar German Civil Code, sec. 54; Beard v. United States, 158 U. S., 550, 1894;Google Scholar Bacon, Maxims, Reg. 5; Beal, Cases on Liability, pp. 659–780;Google Scholar Holland, Jurisprudence, p. 376;Google Scholar Salmond, Jurisprudence, pp. 428–430;Google Scholar Stephen, , History of the Criminal Law, vol. 2, c. 18;Google Scholar Dicey, The Law of the Constitution, 8th ed., appdx. IV. British courts have held that self-defense will not permit destruction of a wholly innocent person to prevent death from starvation. Regina v. Dudley, 14 Q. B. D. 273, 1884, the Mignonette case.

62 “while it is admitted that exceptions growing out of the great law of self-defense do exist, those exceptions should be confined to cases in which the necessity of that self-defense is instant, overwhelming, and leaving no choice of means and no moment for deliberation.” Secretary of State Webster to Lord Ashburton, August 6,1842, in the Caroline case, Moore, Digest, vol. 2, P. 412.Google Scholar Compare this with the limits of self-defense as a justification for homicide accepted by the Supreme Court of the United States, “All authorities agree that the taking of life in defense of one’s person can not be either justified or excused except on the ground of necessity; and that such necessity must be imminent at the time; and they also agree that no man can avail himself of such necessity if he brings it on himself” (Beard v. United States, 158 U. S. 550, 1894).Google Scholar See also Dicey, loc. cit.

63 Moore, Digest, vol. 2, PP. 402–424;Google Scholar American Year Book, 1916, pp. 79 et seq.;Google Scholar Hyde, op. cit., vol. 1, PP. 106–119;Google Scholar Westlake, op. cit., vol. 1, pp. 171–176, 312–317, distinguishes “self-defense” which is always preventive from “self-help” which is always remedial (p. 113) and also from the so-called “inherent right of self-preservation” which has no place in international law at all (p. 311) and from “intervention” which may be justifiable as police action to suppress standing menaces to international law (p. 318).Google Scholar For cases in which the United States has used force outside the territory in self-defense see Wright, Control of American Foreign Relations (pp. 193, 305–310), and for discussion of such use for protecting citizens abroad see Borchard, op. cit., pp. 448–456, who refers to Memorandum by Clark, J. Reuben, Jr., Solicitor of the Department of State, on “Right to protect citizens in foreign countries by landing forces,” 1912.Google Scholar See also Hart, Foundations of American Foreign Policy.Google Scholar

64 “Chronic wrong doing, or an impotence which results in a general loosening of the ties of civilized society, may in America as elsewhere, ultimately require intervention by some civilized nation, and in the Western Hemisphere the adherence of the United States to the Monroe Doctrine may force the United States, however reluctantly, in flagrant cases of such wrong doing or impotence, to the exercise of an international police power.” President Roosevelt, Annual Message, December6, 1904. See Hart, Monroe Doctrine, 1916, chap. 20;Google Scholar Hyde, op. cit., Vol. 1, pp. 147–150,155, who says “This idea has doubtless been influential in causing the United States to conclude agreements designed to place under its protection for specified purposes certain Central American states.” Google Scholar President Cleveland (Message, December 17,1895), Secretary Root (this Journal, vol. 8, P. 440, 1914), Senator Lodge (in 1895, Hart, op. cit, P. 201 and debate on Magdalena Bay resolution, Cong. Rec., vol. 48, P. 10047) and others have insisted that the doctrine rests on the principle of self-defense which is doubtless true but as a legal doctrine self-defense can not be indefinitely extended at the discretion of one state.Google Scholar See Wright, Territorial Propinquity, this Journal, vol. 12, PP. 533537, and Distinction between Legal and Political Questions with especial reference to the Monroe Doctrine, Proceedings, American Society International Law, 1924.Google Scholar Fenwick goes farther than most writers in recognizing a legal right of defense for “indirect” as well as “direct” attacks menacing safety, op. cit., pP. 143, 145, 149.Google Scholar

65 Borchard, op. cit., P. 448; Hyde, op. cit., vol. 1, P. 116.Google Scholar

66 “Iniquitas partis adversae jusia bella ingerit.” Book II, c. 1, sec. 1, par. 4.

67 “Reprisals are such injuries and other internationally illegal acts of one state against another as are exceptionally permitted for the purpose of compelling the latter to consent to a satisfactory settlement of a difference created by its own’international delinquency.” Oppenheim, op. cit., vol. 2, sec. 33.

68 Maine, Early History of Institutions, lect. 9; Holland, Jurisprudence, pP. 319–320;Google Scholar Stowell, Intervention, P. 11.Google Scholar

69 See description of reprisals beginning with a quarrel between a Norman and English sailor in 1292 which by gradual excess on each side led to the hundred years war. Moore, Digest, vol. 7, P. 131, International Law and Some Current Illusions, P. 311,Google Scholar

70 Borchard, op. cit., PP. 453–455;Google Scholar Oppenheim, op. cil., sees. 33–19;Google Scholar Fenwick, op. cit., pP. 379–385.Google Scholar

71 This Journal, vol. 18, P. 757, note 15.Google Scholar

72 “Perique bellorum tres staluunt causas justas, defensionem, recuperationem rerum, et puni-tionem.” Grotius, Book II, c. 1, sec. 2, par. 2. These correspond to the grounds on which defensive action, reprisals and police action are now justified. See also Grotius, Book II, c. 20, sec. 40, par. 1, 4; c. 25, sec. 6 and Prolegomena, sec. 18; Vattel, prelim, sec. 22; Westlake, op. cit., vol. 1, P. 318;Google Scholar Wright, American Political Science Review, vol. 13, PP. 556–557;Google Scholar Stowell, Intervention, P. 455.Google Scholar

73 “For the advancement of public justice every man is legally justified in using, and indeed is often bound to use force, which may under some circumstances amount to the infliction of death.” Dicey, The Law of the Constitution, 8th ed., P. 493, citing Timothy v. Simpson, 1 C. M. and R. 757; Stephen, Commentaries, 14th ed., vol. 4, P. 309;Google Scholar Foster, Discourses, II, of Homicide, pP. 271, 272.Google Scholar

74 But the manner of carrying out the obligation of Art. 10 is left to the discretion of each state. See this Journal, vol. 18, pP. 108–113.Google Scholar

75 Creasy, First Platform of International Law, London, 1876, P. 44;Google Scholar Amos, Jurisprudence, 1872, pP. 411, 456;Google Scholar Hall, op. cit., sec. 92;Google Scholar Hyde, op. cit., vol. 1, PP. 119–128;Google Scholar Westlake, op. cit., vol. 1, P. 318, 320.Google Scholar Elihu Root approved such a rule but thought it would be a change in theory, this Journal, vol. 10, P. 9.Google Scholar See Wright, American Political Science Review, vol. 13, pP. 556–557 and Minnesota Law Review, vol. 5, pP. 440–445.Google Scholar

76 Supra, note 64.

77 Supra, note 63. See also Oppenheim, op. cit., vol. 1, sees. 505, 522–571;Google Scholar Roxburgh, International Conventions and Third States, 1917, pP. 33 et seq.;Google Scholar Wright, “Conflicts between International Law and Treaties,” this Journal, vol. 11, P. 578.Google Scholar

78 Stowell, Intervention, pP. 107, 438–446.Google Scholar Political justification for such treaties has often been found in the chaotic condition of backward countries dangerous to general peace. In the absence of such treaties, interventions might sometimes be justified on grounds of defense of international law (supra, notes 72, 75). In such circumstances the orderly procedure of a protectorate treaty would seem preferable to periodic interventions until an international protectorate as now established in the mandatory and minority treaties under the League of Nations can be substituted.

79 Many of the older writers on international law considered insurrection or rebellion against a legitimate sovereign to be illegal. Grotius, op. cit., Book I, c. 4. For modern view see Hyde, op. cit., vol. 1, P. 121.Google Scholar

80 See statements of Secretary of State Adams, August 24, 1818, and April 6,1822, and of Secretary of State Buchanan, March 31,1848, Moore, Digest, vol. 1, pP. 78, 88,124;Google Scholar Wright, Control of American Foreign Relations, PP. 269–270;Google Scholar Goebel, Recognition Policy of the United States, N. Y., 1915.Google Scholar

81 Secretary of State Hay to Mr. Reyes, Minister from Colombia, January 5,1904, “Diplomatic History of the Panama Canal, 1914,” 63rd Cong., 2nd Sess., Sen. Doc, No. 474, P. 503;Google Scholar Wright, American Political Science Review, vol. 13, pP. 559, 571.Google Scholar External aggression is expressly stated as the only casus foederis of the guarantee in Article 10 of the League Covenant.

82 See Stowell, op. cit., PP. 329–345;Google Scholar Hall, International Law, sec. 91;Google Scholar Fenwick, op. cit, pP. 151–152.Google Scholar The question was raised especially by the so-called “Holy Alliance” of 1815.Google Scholar See Declarations of the Conferences of Troppau (Dec. 8, 1820), Laibach (May 12,1821), and Verona (Dec 14,1822), Br. and For. St. Pap., vol. 8, pP. 1149–1151, 1201, vol. 10, pP. 921–925.Google Scholar In these the Allied Powers, Russia, Prussia, Austria and France, proposed intervention in Italy and Spain. Great Britain expressed her dissent from these declarations in Lord Castlereagh’s dispatch of January 21, 1821, ibid., vol. 8, P. 1160, and the United States did likewise with reference to the new world in President Monroe’s message of December 2, 1823. These documents are conveniently collected in World Peace Foundation, Pamphlet, June 1918, pP. 273 et seq. A treaty for mutual suppression of insurrection was proposed at the Pan-American Scientific Congress of 1916. This differed from the Holy Alliance declarations in affecting only the contracting states but as to them insurrection would have been made illegal by the treaty (supra, note 33). Treaties of protection like that between the United States and Cuba, 1903, often authorize intervention by the protecting state to prevent rebellion.

83 This Journal, vol. 18, P. 759, note 22.Google Scholar

84 Stowell denies the right of interposition on ground 4 (supra, note 78), and considers intervention on humanitarian grounds legal (op. cit., P. 51), but in this he is not supported by most writers. See Oppenheim, op. cit, vol. 1, sec. 137;Google Scholar Hall, op. cit., sec. 92. In some so-called humanitarian interventions conditions have reached a stage which would justifyinter-vention on ground 3. Hyde recognizes a growing recognition of humanitarian intervention, particularly by the “society of nations acting collectively,” and Fenwick, op. cit., P. 154, notes that the minority treaties under the League of Nations promise to “remove in large part the grounds” for such interventions.Google Scholar See also Malbone, W. Graham, “Humanitarian Intervention in International Law as related to the Practice of the United States,” Michigan Law Review, 1924, pP. 312 et seq. Google Scholar By Article 8 of the Covenant the members of the League recognize “national safety and the enforcement by common action of international obligations” as the only legitimate uses of national armaments. The first seems to cover 1 and 5 above and the latter 2, 3 and 4.

85 Or the occasion for a declaration if the victim is party to the III Hague Convention of 1907. This Journal, vol. 18, P. 758, note 18.Google Scholar

86 See League of Nations, Report of Temporary Mixed Commission on Armaments, Sept. 7, 1922, containing replies of twenty-four states to a questionnaire relative to the purposes for which armaments are required;Google Scholar Report of Third Committee of Third Assembly, Sept. 22,1922, and resolution 14 on reduction of armaments adopted by the Third Assembly on the basis of these reports, League of Nations Monthly Summary, vol. 2, pP. 211, 229.Google Scholar See also remarks in Fifth Assembly, especially those by M. Skrzynski of Poland (Sept. 4), M. Herriot of France (Sept. 5), M. Theunis of Belgium (Sept. 5), M. Benes of Czechoslovakia (Sept. 5), M. Politis of Greece (Sept. 6), and remarks by M. Briand of France in third plenary session of Washington Conference on Limitation of Armament, Nov. 21, 1921, International Conciliation, No. 169, pP. 515 et seq. Google Scholar See also, DeVisscher, op. cit., chaP. 4.Google Scholar

87 Supra, note 46.

88 The committee of the Fifth Assembly fully realized the difficulty of framing criteria to distinguish between defense and aggression which could be automatically applied. “When one country attacks another,” says the report, “the latter necessarily defends itself, and when hostilities are in progress on both sides, the question arises, which party began them.” World Peace Foundation, Pamphlets, vol. 7, No. 7, P. 436.Google Scholar

89 Wright, “The Effect of the War on International Law,” Minnesota Law Review, vol. 5, PP. 440–445;Google Scholar Salmond, Jurisprudence, pP. 13–15.Google Scholar Holland, Jurisprudence, 11th ed., pP. 28–30, 386–387.Google Scholar

90 “All the potency of the law to secure obedience depends upon habit and habit can only be formed by lapse of time; so that the ready transition from the existing laws to others that are new is a weakening of the efficacy of law itself.” Aristotle, Politics, II, c. 9;Google Scholar Pound, “Enforcement of Law,” Proceedings Illinois State Bar Association, 1908.Google Scholar See also, remarks of Elihu Root, and of Secretary of State Hughes, Proceedings American Society International Law, 1923, pP. 12–14, 87.Google Scholar

91 Venezuela Preferential Claims Arbitration, Wilson, Hague Arbitration Cases, P. 38. Secretaries Colby and Hughes have insisted on a voice in the framing of mandates after American rejection of the treaty of Versailles on the ground of “participation in the war.” Notes of November 20, 1920, and March, 1921.Google Scholar

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94 Wright, Minnesota Law Review, vol. 5, pP. 442–443.Google Scholar

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97 Such provisions in Article 1 of the treaties of the United States with Great Britain, 1794;Google Scholar Mexico, 1831, and Spain, 1795, were violated by the war of 1812, the Mexican war of 1846, and the Spanish war of 1898.

98 Bryce, International Relations, lecture 6;Google Scholar Poole, The Conduct of Foreign Relations, PP. 129–142;Google Scholar Mowrer, Our Foreign Affairs, PP. 20–28;Google Scholar Lippmann, Public Opinion, 1921, chaP. 24,25.Google Scholar

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103 Supra, note 18.

104 Cohen, v. Virginia, 6 Wheat. 264,1821;Google Scholar Worcester, v. Georgia, 6 Pet. 515,1832;Google Scholar Ableman, v. Booth, 21 How. 506, 1859;Google Scholar Scott, v. Sandford, 19 How. 610, 1856.Google Scholar See Dodd, “John Marshall and Virginia,” American Historical Review, Vol. 12, p. 776;Google Scholar Beveridge, Marshall, John, Vol. 4, chaP. 7;Google Scholar Winslow, The Story of a Great Court, 1912, pp. 128–131, 293;Google Scholar Balch, , A World Court in the Light of the U. S. Supreme Court, 1918.Google Scholar

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109 Constitution of 1871, Art. 19, Constitution of 1919, Art. 48.

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111 As the United States under the Articles of Confederation, see The Federalist, Nos. 15,16.Google Scholar

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116 There is no such guarantee in the Bryan treaties.

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121 Supra, note 86.

122 Supra, note 46.

123 Supra, note 46.

124 Ibid.

125 Fifth Assembly,0 Plenary meeting, Sept. 4, 1924.Google Scholar

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