SESSION OF SUBSECTION 1 OF SECTION VI.

SHOREHAM HOTEL,

Tuesday afternoon, December 28, 1915.

Chairman, CHARLES NOBLE GREGORY.

The session was called to order at 2 o'clock by the chairman.
Papers presented:

Inaugural Address, by the Chairman.

How can the people of the American countries best be impressed with the duties and responsibilities of the State in international law? by David Jayne Hill.

The study of international law in American countries and the means by which it may be made more effective. Papers by Jacob Gould Schurman, James W. Garner, and Clement L. Bouvé.

INAUGURAL ADDRESS.

By CHARLES NOBLE GREGORY,

Formerly Dean of the Law School of George Washington University. Gentlemen from all America, you are welcomed here in the interest of many branches of knowledge and of many and varied mutual affairs. In none of higher interest or addressed more directly to our common needs than international law. That great department of human obligation within the past 18 months has found her historic authority assailed, her restraints denied, and her very existence questioned. In the older world the throes of a war widespread and devastating beyond the dreams of malevolence seem to have obscured, if not abolished, the dominion of both international law and municipal, economic, and moral law.

Be assured, gentlemen, not one of these best fruits of civilization shall perish from off the earth. Here in our western world law remains still sovereign and beneficent in her moated castle, still supreme in her sea-girt sanctuary. The Atlantic and the Pacific are the guardians of our peace, and shield even our minds and imaginations from the blistering heat and fevered infection of that appalling contest.

These divisions of the world serve their use in preventing war, pestilence or disaster from becoming universal, just as the watertight compartments of a great ship aid her safety in storms or collision, keep her wounded hulk afloat, and save at least the human freight.

We still turn the wholesome pages of Grotius and Vatell, of Wheaton and Calvo. We quote the placid conventions of the first and the second Hague

conferences, with the ink of the signatures of all nations scarcely dry upon them, and we speak with respect of the solemn agreements and sacred faith of nations.

"Inter arma leges silent," said the late Chief Justice Ryan, “is a fact, not a principle."

We must struggle to prevent facts dominating principles. Unfortunate facts can not change principles, but principles which call to their support, with noble compulsion, the highest and best that is in men-principles must subdue and alter unfortunate facts. Shall the mechanic with his machines which work carnage from the deeps of the sea and the vault of heaven defy and annihilate international law? Shall this mechanic snatch the good shield of law from women and little children, from the aged, the neutral, and the noncombatant, and make them all his aim and his brutal prey? Shall machines abolish law, or shall law not abolish these machines but justly control their operation, saying to them as the Creator said to the destroying flood, "Thus far shalt thou go, and no farther”?

"They have sought out many inventions," says the book of Ecclesiastes, but in the same verse is written the fine declaration, “God hath made man upright." Let us be sure that the pen is not merely mightier than the sword but than the submarine and the aeroplane and the deadly gas and the floating mine. It can subdue them to their lawful place exactly as it has dealt with those other mechanical inventions, the expanding bullet and the scalping knife.

We can not desert Justice; her voice constrains our minds. We can not desert Humanity; her cry still sways our hearts. International law is merely the formal application of these eternal principles of justice and humanity to international relations.

Our American Republics have three strong bonds holding them together: First. Geographical contiguity. They are the western half of the world. They are divided from the eastern half by the abysses of the oceans.

Second. They each and all had their foundation in a noble struggle for freedom and self-government.

Third. They have embalmed those principles in their paramount law and very form of government.

With these triple ties uniting us it is impossible but that our international relations should have much in common and that wise and temperate consultations of our statesmen, our jurists, and our scholars should add to the peace and security of our Americas and at least tend to temper with justice and humanity the whole conduct of mankind.

The Chair would congratulate the nations of America that they are here represented. He welcomes and congratulates those earnest and gifted men who are here delegated for so high and pacific a task.

Lord Bryce, in his address as president of the British Academy, recently said, with truth: "Mankind increases in volume and in accumulated knowledge and in a comprehension of the forces of nature, but the intellects of men do not grow." Therefore the intellects of men must unite together and jointly essay the intricate tasks of this egregious world. The international congress with its many minds must seek the solution of the international problems.

Lord Bryce said further: “Newspapers and pamphlets will convey to posterity sufficiently and even more than sufficiently the notions and fancies and passions of the moment." So they will; but the chair ventures to hope that into the elevated atmosphere of a congress representing the best of the continents of all America, there may intrude no passion but that for justice, no intemperate zeal except for the good of our fellow men.

Sir Horace Plunkett, who did so much for agriculture in Ireland, was warmly commended because he "made two cocks crow where one cock crowed before." So may we make two disciples of international law where there was one before.

In considering and seeking to crystallize the just rules of international intercourse, the chair ventures to hope that the congress may not be wholly limited by that shop-worn and parochial maxim, "America for the Americans,” but may rise to the higher, broader, and, therefore, better creed of "The world for all mankind."

HOW CAN THE PEOPLE OF THE AMERICAN COUNTRIES BEST BE IMPRESSED WITH THE DUTIES AND RESPONSIBILITIES OF THE STATE IN INTERNATIONAL LAW?

By DAVID JAYNE HILL,

Ex-Ambassador of the United States to Germany.

In the question, "How can the people of the American countries best be impressed with the duties and responsibilities of the State in international law?” it seems to be assumed that it is, in fact, to the people, and not merely to the governments, that we are to look for a due recognition of those duties and responsibilities. So far as the American countries are concerned, being in theory popular governments, this assumption appears to be well founded; for the governments will in the end be what the people desire.

It is therefore proper and timely to ask, and if possible to answer, the question, in what manner the people of the American countries may best be impressed with these duties and responsibilities.

I.

First of all it is desirable to make it clear that international duties and responsibilities are necessary corollaries of the true conception of the State; for a repudiation of those duties and responsibilities, or the neglect to fulfil them, would not only be equivalent to the abandonment of the fundamental principles upon which the American States are founded, but it would even render questionable their right to exist.

There are, indeed, two radically different and wholly incompatible conceptions of the nature of the State. On the one hand, it is regarded as the embodiment of irresponsible force, pretending to a sovereignty so absolute and unlimited that it is a law unto itself and may in all circumstances exercise its own unrestricted will. If this be, in truth, the nature of the State, it is difficult to comprehend how it can recognize a duty to anyone except itself, or how it can be induced to accept any responsibility unless it is imposed upon it by superior force. Between States thus conceived there can be no trustworthy legal relations, for the reason that such a State does not acknowledge any binding restraint upon its own arbitrary will. Treaties and conventions may be subscribed to, but they have no permanent value, for, being mere temporary acts of will, they may at any time be repudiated by other acts of will having the same value and authority. Such political entities are therefore comparable to the irresponsible forces of nature, which are subject to no control except by the employment of other forms of force. States of this kind conquer where they can, and yield to the demands of justice only where they must.

It is needless to say that this is not the conception of the State that prevails in the American countries. Here, in theory at least, government is not based upon force, but upon the rights of the people; and the State exists for the maintenance and application of principles of justice, from which it derives all the authority it possesses.

This distinction between the constitutional State, founded upon the principles of justice, and the absolute State, founded upon supreme power, has a vital significance in international relations. For the absolute State, international law is merely a set of arbitrary rules, to which assent and obedience may be accorded, or from which they may be withheld, as it may be the good pleasure of sovereign power to determine. But for the constitutional State there are principles of natural justice which are of universal application, for they are the principles upon which the authority of the State itself is founded. To deny the universal validity of these principles and the obligation to observe them in international relatons would be to stultify the entire constitutional system and to admit that it has no solid basis. In short, it would be the suicide of republicanism and the reassertion of autocracy; for international law, regarded as a form of jurisprudence, is simply an extension to nations of the principles of justice upon which constitutional government is erected.

II.

From a juristic point of view, therefore, the duties and responsibilities of the State are logical corollaries of the constitutional system, and they must stand or fall together. If constitutional government has a right to exist, notwithstanding the arbitrary forces that may oppose it, then international law is binding upon States; for it is in substance only the application of principles of Justice to the society of States. Absolute governments may, in perfect consistency with their theory of the State, utterly disregard them, for their foundation is not law, but force. Constitutional governments, on the contrary, must recognize these principles as binding, or they nullify and abandon their own ground of existence, for their foundation is not arbitrary force, but human rights.

Whatever reasons there are for the authority of law between individuals of the same nation, those same reasons exist and have equal force for the authority of law between States. The fundamental question in both cases is identically the same-namely, shall arbitrary force be permitted to prevail, or shall just and equal laws be ordained and observed?

The practical necessity for law, whether within the State or between States, is the same. In both cases it is the establishment of justice as the basis of human relations. It aims at the protection of the weak against the cupidity and rapacity of the strong. The only way to accomplish this is through voluntary submission to equal laws, or the effective enforcement of justice where conformity to just laws is resisted or refused. By whatever standard we measure the necessity of obedience to law within the State, whether by the extent of the benefits to be derived from it or the magnitude of the injuries resulting from a disregard of it, the rights of nations immeasurably outweigh the rights of individuals; for in the scale of human values nations are high multiples of the human personality from which the conception of right is derived. Not only, therefore, are the duties and responsibilities of the State In international law strictly necessary corollaries of the constitutional system of government, not only may it be said that whatever warrant there is for the existence of the State is a warrant also for a law of nations, but it may be affirmed with confidence that the proof of the sincerity and capacity of a

constitutional State is to be sought in the spirit in which those duties are performed and those responsibilities accepted. Regardless of magnitude—for size and numbers do not affect the principles of justice-the real character of a Government is to be tested and determined by the manner in which it fulfills its international obligations.

III.

The correctness of the foregoing observations, considered from the point of view of theory, will probably not be questioned. But have they any relation to practice? It is precisely here that we touch upon the vital part of our subject. The American countries, above all others, are interested in the preservation of constitutional self-government. So long as all of them adhere to this system, and are disposed to unite in maintaining it, the independence of every one of them would seem to be assured.

If there are at present in any of these countries imperfections in the realization of the constitutional ideal that fact should furnish an additional incentive for emphasizing international duties and responsibilities; for the advancement and ultimate success of self-government are largely dependent upon the frank recognition and studious fulfillment of international obligations. It must be evident to the most superficial observer that a due regard to these obligations is in itself a means of national security, while disregard of them presents a source of serious danger to national independence.

It is appropriate here to speak, first of all, of the attitude of the greater toward the lesser powers in the society of American States. Upon the more powerful the constitutional ideal imposes a generous consideration for the rights and interests of the less powerful. The forcible acquisition of territory, the imposition of arbitrary authority, and discrimination in the privileges of trade and commerce are, from this point of view, so unworthy of a great power that there is practically no danger in the American system of these misfortunes being visited upon the weaker States by those more powerful. On the contrary, aid and sympathy should flow out to them in a truly fraternal spirit; and, in case of need, protection, as far as possible, against unjust aggression should be accorded them.

While the duties of the greater powers are thus evident, it is not to be overlooked that, in the case of the smaller and weaker States, persistent remissness in the performance of their international duties may incur foreign intervention; for it must be conceded, that national sovereignty involves national responsibility. A government that is impotent during a protracted period to protect life and property can not reasonably expect continued recognition, because it fails of the purposes for which a government should exist.

On the other hand, a strict fulfillment of international obligations secures to a State, however small, a high degree of immunity from foreign aggression, because its ability to perform its international duties is evidence of its fitness to be regarded as a sovereign power. I have said "a high degree of immunity," because, unhappily, in spite of our advance in civilization, the just and the innocent are sometimes made the victims of predatory power. There is no guarantee that any nation, not prepared to defend itself, however great it may be in numbers, and however potential in ultimate military strength, may not fall a victim to sudden aggression and be compelled to submit to humiliation. The only alternative to defensive armament on a great and possibly ruinous scale is the gradual triumph of law over force. There should be among selfgoverning countries such unanimity in the acceptance of the principles of international justice and such union in organizing the necessary means of defense