ing governments had been established in the states which had participated in the rebellion, the requirements of the order constituted a safe and reliable guide for the administration of the governments established by the United States in the occupied territory. Indeed, Congress, in what were known as the "Reconstruction Acts," vested the execution of its legislative policy in that regard in the military governments so established, and charged their military commanders with the execution of the successive steps prescribed by law as a condition precedent to the reëstablishment of the seceded states in their constitutional relations with the Federal government. Doctor Lieber's rules were also adopted by the German government with a view to regulating the conduct of its armies in the field during the war of 1870; and it is said to have worked so successfully that but a single case arose, during the prosecution of the war, to which its principles did not apply.

But the usefulness of Doctor Lieber's work did not end here. In 1874, an international conference was invited by the Emperor Alexander II. to meet at Brussels for the purpose of discussing the practicability of framing an acceptable code or compilation of the laws of war on land. Professor Bluntschli, whose efforts to codify the law of nations. are too well known to require particular mention, was charged, as chairman of the committee on codification, with the preparation of a draft of the proposed compilation of the recognized rules and usages of war. In the performance of this duty, his chief reliance was the admirable codification which had been prepared by Doctor Lieber for the use of the government of the United States, so that the Brussels code bears in every article a distinct impression of the Instructions for the Government of Armies, prepared eleven years before, by his lifelong friend and co-worker.

The character and importance of Doctor Lieber's work are well summarized by his old friend, Professor Bluntschli of Heidelberg, in the brief but appreciative biographical sketch which appears as a preface to the second volume of his Miscellaneous Writings:

The Instructions for the Government of Armies of the United States in the Field were drawn up by Professor Francis Lieber at the instance of President Lincoln, and formed the first codification of International Articles of War (Kriegsvölkerrecht). This was a deed of great moment in the history of international law and of civilization. Throughout this

work, also, we see the stamp of Lieber's peculiar genius. His legal injunctions rest upon the foundation of moral precepts. The former are not always sharply distinguished from moral injunctions, but nevertheless, through a union with the same, are ennobled and exalted. Everywhere reigns in this body of law the spirit of humanity, which spirit recognizes as fellow-beings, with lawful rights, our very enemies, and which forbids our visiting upon them unnecessary injury, cruelty, or destruction. But at the same time, our legislator remains fully aware that, in time of war, it is absolutely necessary to provide for the safety of armies and for the successful conduct of a campaign; that, to those engaged in it, the harshest measures and most reckless exactions cannot be denied; and that tender-hearted sentimentality is here all the more out of place, because the greater the energy employed in carrying on the war, the sooner will it be brought to an end, and the normal condition of peace restored.

These instructions prepared by Lieber, prompted me to draw up, after his model, first, the laws of war, and then, in general, the law of nations, in the form of a code, or law book, which should express the present state of the legal consciousness of civilized peoples. Lieber, in his correspondence with me, had strongly urged that I should do this, and he lent me continual encouragement.

The part played by the Brussels code in the preparation of the rules of the Hague conference for the conduct of war on land is very clearly set forth in the explanatory remark of M. de Martens, the Russian representative at the conference, at the opening of the sessions, to the committee charged with the preparation of the rules concerning the laws and usages of war on land:

The object of the imperial government has steadily been the same, namely, to see that the declaration of Brussels, revised so far as this conference may deen it necessary, should form the solid basis for the instructions which the governments should hereafter, in case of war, issue to their armies on land. Without doubt, to the end that this basis should be firmly established, it is necessary to have a treaty engagement similar to that of the Declaration of St. Petersburg in 1868. It will be necessary that in a solemn article the signatory powers, who signify their adherence, should declare that they are in accord on the subject of uniform rules, which should be embodied in these instructions. This is the only manner of obtaining an obligation binding upon the signatory powers. It will be well understood that the Declaration of Brussels shall have no obligatory force except for the signatory states which declare their adherence. (Holls: The Peace Conference at the Hague, p. 135.)

Although the subject matter of Doctor Lieber's rules has constituted the substantial framework of the several codifications that have been attempted, from time to time, since their adoption in 1863, they

have not diminished in importance nor have their vigor or usefulness been materially impaired. The war which existed at the date of their promulgation was strictly internal in character; and, although the belligerency of the states in rebellion had been recognized by the Federal government, the character of the contest, in many of its aspects, differed materially from an external war, in which the belligerent parties were independent states.

The war policy of the United States toward the insurrectionary forces was, in the main, in accordance with the laws of war, as those laws were then accepted and understood. Its enemies, however, were its own citizens, who, for the time, denied its sovereign authority, and refused obedience to its laws. Its right to suppress the rebellion, and its right to choose its method of doing so, were alike beyond dispute. In the exercise of this right it was at perfect liberty to choose any policy between the methods provided by its municipal laws, on the one hand, and those provided by the law of nations on the other.

As a matter of fact it chose a war policy lying between the extremes above indicated. General operations in the field were carried on in accordance with the laws of war. In its treatment of the property of individuals in rebellion, in its views of occupation and of occupied territory, and in its policy toward the residents of such occupied territory, it pursued a course which it deemed best suited to the task upon which it was then engaged-the suppression of a rebellion against its authority. They will, therefore, continue to have value as a rule of conduct in internal wars in which it is attempted by a portion of the population of a state to throw off their allegiance to the parent government.

Subsequent codes are characterized by a certain vagueness and want of positiveness of statement which is calculated to seriously impair their usefulness when it is attempted to apply them to the practical operations of warfare on land. They are also objectionable in vesting too broad a discretion in the generals who exercise chief command of occupying armies. Colonel Birkhimer, in his Military Government and Martial Law, says, with very great truth:

The Instructions were adopted in the midst of a great war, the result of which none could foresee. Before being adopted they were examined by a board of eminent military officers who not only understood what the laws of war were theoretically, but from experience in the field

knew their applicability and how they were to be carried into execution. Moreover, they were adopted under grave official responsibility, the officers who sanctioned having to use them during the continuance of the war as their rule of conduct in dealing with the enemy. Examination will evince that they bear the deep impress of this official responsibility. The justness of this statement is not impaired by the fact that the Instructions were adopted precisely as submitted to the board; this circumstance only furnishes additional evidence of the thoroughness with which they had been prepared. While they attempt to put into official shape the humanity of the land, they do not deprive a belligerent of all fair and reasonable means of successfully carrying on war. His hands are not tied by theories regarding the right of the other party belligerent, or of the inhabitants of territory militarily occupied. Yet throughout it is inculcated that the law of war imposes many restrictions. on the modes formerly adopted to injure the enemy, based on principles of justice, faith, and honor. It may be confidently affirmed that the Instructions form a convenient and useful code of the essential laws of war on land; and, imbued as they are with the milder precepts of modern warfare, they may be expected successfully to withstand the mutations of time until at least the present moral sense of man has taken a long step in advance. The prediction is here ventured that they will continue to be the rule of hostile nations when criminations and recriminations are being indulged because of infractions to these later codes. To attempt by such agreements unreasonably to restrain the actions of a belligerent regarding coercive measures to be used against the enemy is only to invite their utter disregard when nations join in deadly strife.

On the other hand, the Brussels code, and also that agreed upon in 1880 by the Institut de droit International, which has been published to the world as the best modern thought on this subject, has the disadvantage of being adopted in times of peace, when the minds of men in dealing with military affairs turn rather to the ideal than the practical. It is not meant by this to disparage the learning, ability, and zeal of those who digested these codes. In this they stood preeminent before the world, and some were soldiers of great experience. The proceedings of these learned bodies show, however, that the propositions of each state were in greater or less degree generally rejected by the others as inadmissible, and the final result, particularly in the Brussels conference, was a compromise between conflicting interests. They may be expected to share the fate of compromises, generally, which are without a binding sanction-be broken at the convenience of the parties. The great powers at once divided upon the Brussels code. And here it may be observed that these powers alone are of real importance when an international code is to be adopted; if they do not make, they unmake them; yet in all conventions and conferences having in view the adoption of such codes, the smaller states are conspicuous by the part they take in their deliberations and published conclusions.

GEORGE B. DAVIS.

THE CALVO AND DRAGO DOCTRINES

Among the subjects scheduled for discussion at the third Pan-American conference, which met at Rio de Janeiro during July and August, 1906, was a resolution that the second peace conference at the Hague be requested to

consider whether and, if at all, to what extent, the use of force for the collection of public debts is admissible.

There seems to have been some objection to the resolution in this form on the ground that such action

would arouse the distrust of European capitalists and thus affect unfavorably the credit of Central and South American countries.1

But a resolution was finally agreed upon on August 22, and unanimously adopted, which provided that the conference recommend to the governments represented that they

consider the advisability of inviting the second peace conference at the Hague to examine the question of the compulsory collection of public debts, and, in general, the best means tending to diminish among nations conflicts of purely pecuniary origin.2

It will be seen that the resolution in its final form, while in nowise binding upon the governments represented at the conference, recommends a consideration not only of the narrower Drago Doctrine, which merely forbids the forcible collection of public debts, but that it points to the broader Calvo Doctrine3 which absolutely condemns diplomatic as well as armed intervention' as legitimate methods of

1L. S. Rowe in the Independent for October 5, 1906. Dr. Rowe adds: "This feeling was strengthened by the fact that, prior to the meeting of the conference, the European press had exploited to the utmost the dangers incident to the enunciation of any such doctrine."

2 From President Roosevelt's recent message to Congress of December 4, 1906. 3 Of course there is no express or implied endorsement of the Calvo Doctrine contained in the above resolution. But in view of political and economic conditions and the teachings of publicists coupled with those of experience, there can be little question as to the state of public opinion on this subject in Latin America.

'Calvo does not distinguish between armed and diplomatic or pacific intervention except as a matter of form. He condemns the latter as well as the former. See Le Droit International (5th ed.), i, §110, p. 267.