The increasing frequency of arbitration and the pressure for a regular court of international justice composed of permanent judges, have given new emphasis to the demand for what is called the codification of international law.

The process and the result intended to be described when the term codification is applied to international law involves something very different from the codification of municipal law. The codifier of any part of the law of a nation finds the law with which he is to deal already in existence and authenticated. It may be confused in form and apparently unrelated in its parts: it may be scattered through the statutory enactments of many years and the declarations of a multitude of judicial decisions; the codifier may have to struggle with difficult questions of apparent inconsistency, of doubtful repeal, of obscurities in expression calling for interpretation and construction, and with conflicts of judicial opinion; but the expressions which he considers all come from the same law-making power. Somewhere in the mass of material is to be found the final expression of legislative will, the controlling decision of the courts, and when these are found everything inconsistent with them may be rejected as repealed or overruled. The codifier's task is to find what the rules really are; to put them in due relations to each other under appropriate heads in accordance with some systematic scheme of arrangement; to bring order out of confusion; to furnish a methodical statement of the results of his researches which may make the law plain to the people who live under it and may relieve countless lawyers from the necessity of going through the same wearisome process of inquiry in each separate case. When the work is complete, if it is acceptable, the legislative power of the state puts its stamp of approval upon it and resolves any doubts or uncertainties by its acceptance of the codifier’s conclusions. It may indeed be that the research of the codifier and the clearer view presented by a systematic arrangement will have revealed inadequacies of expression, incongruities, and omissions in the existing law, but, as to these, the suggestions of the codifier for remedying the defects discovered will be accepted or rejected by the single fiat of the legislative body which enacts the code.

Military espionage has been regarded from time immemorial, in all countries and among all nations, as a military offense of great criminality. Its penalty is death by hanging. This is the common law of war. Some nations have by orders, decrees or municipal laws, defined what constitutes this offense and provided for the trial and punishment of the offender. It should be observed, however, that espionage, being an offense at the common law of war, punishable by death in a particular mode, a spy may be executed without any municipal law on the subject, and that municipal laws, in regard to espionage, are binding only upon the state which makes them; they form no part of the international code.

The movement for the creation of a definite and permanent organ for the authoritative declaration of international law in controversies between states involves in it a transition from the concept of moral to that of legal obligation. The cardinal element in the concept of legality, that which distinguishes moral duty from legal obligation, is that in the latter case the duty is not enforced only through a general sentiment of right, but through a definite organization. An obligation may be said to be legal when in its determination and enforcement, definitely constituted organs are active. The obligation of a moral, ethical, or social duty, which is backed only by the general sentiment of the community, may be felt just as strongly by individuals as the legal obligation which is determined by a definitely appointed body of men. Yet this very definiteness of organization serves to impart greater strength, or at least rigidity, to the legal principles.

As a canal is part of the territory of the country through which it passes, the general principle of sovereignty gives to that country, and to that country alone, the right of fortification. This general principle is capable of modification by treaty. Thus, as the Suez Canal is wholly in Egypt, a right of fortification resided with Egypt, or with its suzerain, Turkey; and, in order to destroy the right, there had to be express provisions in the Constantinople Convention of 1888 — “ respecting the free navigation of the Suez Canal ” — to which Turkey was a party. In that treaty as to Suez, there was ample recognition of the prima facie right and duty of the local country to protect the canal. Similarly, the right to fortify the Panama Canal would still reside with the Republic of Panama, and not with the United States, if the convention of 1903 with Panama did not grant to the United States control of the Canal Zone, with all the rights which the United States would possess if it were the sovereign, and “ to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights.” The treaty specifically adds that “ the United States shall have the right * * * to establish fortifications.”

Connected as it is with the progress of the present phenomenal movement for international peace, the question whether the Panama Canal should be permanently fortified as part of its construction and before it is opened to the commerce of the world, is of the highest importance; and for this reason the views and conclusions of the commissioners who considered the subject under authority of Congress in 1899–1901, when negotiations were in progress between the United States and Great Britain for a new agreement to take the place of the Clayton-Bulwer Treaty, are of the gravest public interest and are worthy of the most considerate attention. It was not until November, 1903, that the Isthmian Canal Zone came under “ the perpetual control ” of the United States by the treaty of the 18th of that month with the new-born Republic of Panama; but, for some years prior, the United States had been considering the acquisition of a strip of territory in the Isthmus, and the construction of a waterway between the two oceans, on its own responsibility, at its own cost, and under its own control. It was from this new point of view that the Canal Commission of 1899–1901, of which the late Admiral Walker was president, made its investigations and report; and it was to open the way to the accomplishment of this enterprise without a violation of the Clayton-Bulwer Treaty and with the consent of Great Britain, whose interests in the physical union of the Atlantic and Pacific were second only to those of the United States, that the negotiations then pending between the two governments had been commenced and were subsequently carried on until they resulted in the Hay-Pauncefote Treaty, which was signed on November 18, 1901, proclaimed February 22, 1902, and is now in force. It antedated by some months the passage of “ the Spooner bill,” which provided for the purchase of the rights and property of the New Panama Canal Company (De Lesseps’ successor in France) and for the acquisition of the necessary territorial rights from Colombia, or, failing that, from Nicaragua and Costa Rica.

A neutral state may at any time lay aside its neutrality and engage in war. This is recognized, though with a somewhat mediaeval flavor, by Macchiavelli in his counsel to the ideal prince, where he advises the latter never to remain neutral in a war between his neighbors, but to join with one side or the other, since by his aid that side would gain the victory and he could share in the spoil.

However unlikely it may be that such motives would bear weight to-day, it is nevertheless true that the right to make war at will exists in every sovereign state unless, by reason of international agreement, it is placed altogether outside of the realm of war and devoted to perpetual peace. The duties of simple, or self-imposed neutrality are now clearly recognized and quite generally observed. The neutral state must maintain exclusive jurisdiction and sovereignty over its land and territorial waters, and is bound as well to prevent within its borders all acts inconsistent with complete impartiality toward belligerents. It must, moreover, regulate the use of its harbors and coaling stations according to the recognized provisions of international law; it is bound to prevent the enlistment within its borders of troops destined for foreign service, and, finally, it is compelled to acquiesce in the penalties incurred by its subjects when engaged in the carriage of contraband goods, breach of blockade, or resistance to the belligerent rights of stoppage, visit and search.

The Hankow-Szechuan loan controversy, which has just been closed by the final ratification of the loan agreement, is typical of the numerous loan questions in China. In order to understand the meaning of the different phases of this controversy, two points must be borne in mind — that a foreign railway loan in China is entirely different from what it would be in the United States, and that the creditors in advancing their capital to China are induced by other than purely commercial motives. In the United States a railway loan is understood to be a commercial transaction between two parties, either private or public; in China it is regarded as a “ treaty ” between the Chinese Government and many other governments. No matter how a loan is made and who makes it, it invariably becomes mixed up with politics in the end. Loans are concluded only after much tedious diplomatic negotiations. Promises and “ undertakings,” which might have been made years before under exceptional circumstances, often play a more important part in determining the terms of the loan than the merits or demerits of the loan itself.

Modern international law is generally regarded as beginning with the Peace of Westphalia in 1648. But it is necessary to go much further back in the history of the world for the beginnings of the law governing the intercourse of nations. The Greek states had a rudimentary inter-state law that regulated their relations. Thus they practiced arbitration in a way among themselves: they recognized the sanctity of the person of heralds, and they followed other recognized customs in their dealings one with another. When Rome and Carthage and other nations were struggling for the mastery of the world, the beginnings of a law of nations were recognized and practiced between them. Upon, however, practically all the known world coming under the sway of imperial Rome, all possibility as well as need of a law of nations was wanting, and as a result the faltering beginnings of an international law as recognized among the Greek states and then by the Powers surrounding the Mediterranean, were extinguished by the extension of the Pax Romana to all the known world.

1. The Chief Executive. — The Christian government of which Article 1 of the Treaty of Berlin speaks was to have as its first element a prince freely elected by the people.

This liberty of election was not, however, absolute. A restriction was placed, but only one, we believe: no member of the reigning European dynasties could be elected Prince of Bulgaria. It is easy to discover the reason for this provision, which under a general and impersonal form, was aimed directly at Russia. It was not desired that a grand duke, installed in Bulgaria, should make of the Principality an autonomous province of the Muscovite Empire. Nothing in the protocols of the Congress of Berlin permits the belief that there was any desire to push the precautionary measures further than that. If this condition was fulfilled, that the prince elected by the people should not belong to a reigning dynasty of the Powers, the choice of the Bulgarians would not be contested. Article III states, however, that this choice must be confirmed by the Sultan with the assent of the great Powers. Apart from the single case referred to in the text, could this confirmation and assent have been refused? On this point even the language of the Treaty of Berlin and the protocols of the Congress are not at all clear. It seems that very little concern was shown over the accumulation on this point of the germs of a thousand difficulties. Neither was it foreseen what would be the effect of Article III in case, for instance, only certain Powers should have refused their assent. Would a majority have sufficed or would unanimity have been necessary? And what if the confirmation of the Sultan should have been given while the assent of the Powers had been refused, or inversely ? All are questions difficult of solution. Many constructions have been proposed. The simplest, we believe, is this one. If the election was to be free — and that was the intention of the Congress — the confirmation of the Sultan and the approbation of the Powers should properly have followed an election regularly conducted, that is to say, one in which the person elected did not belong to a reigning family. The opposition of the Sultan or of the Powers, if based upon personal considerations, would have conflicted with the principle of free election. The right of the Sultan was purely honorary. It calls to mind what happens in Egypt where the case is seen of an hereditary Khedive who receives the investiture. In saying “ hereditary ” we imply that the investiture could not be. refused. It is given, however, because nominally the Sultan is the suzerain of the Khedive, as he was, nominally the suzerain of the Prince of Bulgaria.