see that as national order is the condition of personal freedom, and international order is the condition of national freedom, so it is in cosmopolitan order that international freedom of action must be sought.44

V. APPLICATION OF CONCLUSIONS TO EUROPEAN SITUATION

The frightful situation in Europe is so constantly in one's mind, that it is not possible to leave the subject of the independence and equality of states without a brief consideration of the basic principles which ought to govern the remaking of the map of Europe at the close of the war. If it is possible to agree on these fundamental principles, this fearful struggle may have laid the bases of a lasting peace, and will, therefore, not have been in vain.

1. BALANCE OF POWER

Europe should recognize, first of all, that the principle of the balance of power has proved not only futile, but a menace to the existence of the big as well as of the small states. As Dupuis has forcibly said:

The experience of three centuries has demonstrated that far from insuring respect for the rights of all, the principle of the Balance of Power succeeded simply in causing the powerful states to admit that every acquisition of territory made by one of them might justify equivalent acquisitions on the part of the rest. Powerless to introduce peace and justice into international relations, it has often covered with specious and decent pretexts, unjust ambitions, baleful wars, and veritable operations of brigandage.45

* * *

Lawrence adds his word to this severe indictment:

It [balance of power] takes no account of any other motives of state policy than the personal aggrandizement of rulers and the territorial extension of states. It distributes provinces and rounds off the boundaries of kingdoms without regard to the wishes of the populations and their affinities of race, religion, and sentiment."

The cynically mischievous results of the two Congresses of Vienna and Berlin which were dominated by this so-called principle of the balance of power should be a sufficient warning to Europe. In international affairs, as in all human affairs, nothing is permanent and there can be 45 L'Equilibre Européen, p. 96. 46 Principles, p. 29.

44 Institutes, I, 130.

no stable equilibrium of forces between nations. But there is no reason why they should not attempt to do justice to each other's legitimate interests by obeying sound principles when confronted with the solemn responsibility of redrawing the boundaries of Europe.

2. RECONSTITUTION OF MAP OF EUROPE

The basic principles which should be observed in reconstituting the map of Europe are:

(a) Respect for the claims of nationalities so far as is compatible with the entire interests of a state taken as a whole. The selfish desires of a small section must not be allowed of course to sacrifice the welfare of the whole state, if that section for economic reasons is essential to the state. But the natural tendency of men to group together in accord with what they deem to be a community of interests cannot safely be ignored. Austria-Hungary is the festering disease centre of Europe in its efforts to stifle nationalistic aspirations. The legitimate claims of the Poles, and the peoples of Schleswig-Holstein, Bohemia and Alsace-Lorraine must be granted, in so far as these claims would not work any great injury to the interests of the different states concerned.

(b) The economic requirements of a state must be satisfied to the fullest extent so that it may be reasonably self-sufficient and in no way a burden to the rest of the world. This means that a state should have variety of soil and resources; should have proper transportation facilities; and not be denied a proper connection with the great highways of commerce, whether by land or sea. If economic interests clash with nationalistic, honest efforts must be made either to reconcile the two, or decide which fairly should have precedence. Boundaries should be drawn with a view to consult all these vital interests rather than to find a military frontier in insolent disregard of such interests.

3. COMMON CONCEPTION OF INTERNATIONAL RIGHTS AND OBLIGATIONS

If the nations of Europe desire to lay the foundations for an international organization in order to allow international law full and effective sway, they must recognize that the first requisite is a common fundamental conception of rights and obligations. Whatever may be the

rights of the present war, it would seem clear that a most serious divergence of views exists between the opposing nations in respect to the rights and obligations of states. The Prussian valuation of treaty obligations is of such a nature as to constitute a fearful menace to other states. International relations cannot be carried on in peace without a due respect for treaty obligations, and for the rights of the weak. The only other alternative is a perpetual state of war, whether of actual fighting or the strain of armaments. International law cannot be built upon the Prussian theory.

4. CREATION OF INTERNATIONAL LAW

The creation of international law as an adequate substitute for war is a very laborious process. Its coherent, natural growth cannot be forced artificially, but nations can do much through international conferences to crystallize into formal agreements many principles already accepted in actual usage. If less attention were paid to the drafting of conventions governing the conduct of war, and more attention paid to the drafting of laws to govern the peaceful relations of states, something substantial might be accomplished for the building up of international law. It is unreasonable to urge too strenuously the establishment of international courts of justice before nations are agreed on the law to be applied.

Human progress is desperately slow. It takes generations to gain any considerable victories for civilization, and even then, strenuous battles must be fought to hold the ground already gained. The man who would do his proper share in helping the cause of international good relations must indulge in no cherished illusions. Though holding to his ideals he must ask to have his eyes opened to see things as they are. International law is hard pressed at this time, but is doubly conscious of the sacred character of its high mission. It calls for valiant defenders, but it demands that they abandon abstractions and deal with realities.

PHILIP MARSHALL BROWN.

INTERNATIONAL ASPECTS OF THE TITANIC CASE

The appalling loss of life and property resulting from the sinking of the Titanic served to direct public attention both here and abroad not only to the laws which should provide the safeguards of navigation, but also to the incidence of liability for accidents upon the high seas. The former subject has been dealt with in an interesting paper published in this JOURNAL.1 We here propose to discuss the application to foreign ships, of the United States rule of the limitation of the shipowner's liability, the foreign law upon the subject and the significance of the international movement for reform through identic legislation in many countries.

The Titanic, a British vessel which had sailed from Southampton for New York on her maiden voyage, collided on the high seas with an iceberg on April 14, 1912, and sank within a few hours, causing the loss of about two thousand lives and a total loss of vessel, cargo, personal effects, mails and everything connected with the ship, except certain life-boats. The owner, the Ocean Steam Navigation Company, Ltd., alleging that the loss was occasioned and incurred without its privity or knowledge, filed a petition under the statutes of the United States 2 and the rules in admiralty 3 praying that the petitioner's interest in the life-boats and pending freight be appraised, the sum paid into court, that the petitioner's liability be adjudged as limited to this sum, and that the prosecution of all suits against the petitioner for loss resulting from the accident be enjoined.

Prior to the filing of the petition, a number of actions to recover for loss of life and personal injuries resulting from the disaster had been instituted in Federal and State courts. The persons who sustained the loss were of many different nationalities, many being citizens of the

1 Wheeler, International Conference on Safety of Life at Sea, Amer. Jour. of International Law, Vol. 8, p. 758.

2 Revised Statutes, ss. 4283-4285; U. S. Compiled Statutes (1901), pp. 2943, 2944. 3 Admiralty Rules, Nos. 54, 56; 29 Sup. Ct. XLV, XLVI.

United States. Mellor, a British subject, and Anderson, a citizen of the United States, excepted to the petition on the ground that the losses having occurred upon a British registered vessel upon the high seas, United States law could not apply. The District Court for the Southern District of New York, in a well-considered opinion, sustained these exceptions and the Circuit Court of Appeals thereafter certified the following questions to the Supreme Court for decision:

A. Whether, in case of a disaster upon the high seas, where (1) only a single vessel of British nationality is concerned and there are claimants of many different nationalities; and where (2) there is nothing before the court to show what, if any, is the law of the foreign country to which the vessel belongs, touching the owner's liability for such disaster, such owner can maintain a proceeding under ss. 4283-4285, U.S. Revised Statutes and the 54th and 56th Rules in Admiralty?

B. Whether, if in such case it appears that the law of the foreign country to which the vessel belongs makes provision for the limitation of the vessel-owner's liability, upon terms and conditions different from those prescribed in the statutes of this country, the owners of such foreign vessel can maintain a proceeding in the courts of the United States, under said statutes and rules?

In the event of the answer to question B being in the affirmative:

C. Will the courts of the United States in such proceeding enforce the law of the United States or of the foreign country in respect to the amount of such owner's liability? 5

The Supreme Court answered the first and second questions in the affirmative and the third, that United States law should apply."

The United States statute limits the liability of the shipowner to the value of the remnants of the vessel and pending freight, unless the accident occurred with the owner's privity or knowledge. Its enactment in 1851 grew out of the circumstances attending the loss of the Henry Clay, a nearly new ship which took fire at her wharf in New York after having almost completed her lading. Her owners having lost a very large amount by the burning of the ship were held liable also for the loss of the cargo, although it was strenuously maintained that the common

The Titanic (1913), 209 Fed. Rep. 501, per Holt, J.

Ibid., 513.

Ocean Steam Navigation Co., Ltd., v. Mellor (1914), 233 U. S. 718.