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recurrence of war result in the strengthening and developing of the legal principles which nations have adopted as a check on international crime. The action of one nation or of any group of nations can not over night undo a collective work of all the nations extending over a period of time measured by centuries.
It would be pedantry to show how, through the attempt to regulate war, that system of jurisprudence which we call the law of nations has come into being. The attempts of the theologians and canonists of the Middle Ages to prevent wars that were unjust led to the examination of justice and the advocacy of its application between Christian nations, which were looked upon as forming a society requiring law for its government. It is perhaps worth while to recall, in this connection, that the principles of the law which should regulate the conduct of nations in their mutual intercourse were first stated in systematic form by the illustrious Grotius during the Thirty Years' War, and that the war itself caused him to write his treatise on the Rights of War and of Peace, which convinced statesmen, bound nations, and molded the thought of future generations, substituting as it did a rule of conduct based upon right reason for mere force, which, as John Bright rightly said, is not an argument.
As Grotius himself said:
* * * holding it to be most certain that there is among nations a common law of Rights which is of force with regard to war, and in war, I saw many and grave causes why I should write a work on that subject. For I saw prevailing throughout the Christian world a license in making war of which even barbarous nations would have been ashamed; recourse being had to arms for slight reasons or no reason; and when arms were once taken up, all reverence for divine and human law was thrown away, just as if men were thenceforth authorized to commit all crimes without restraint.
War has not been abolished, but warfare has taken on some of the refinements and amenities of civilization. This may seem a small matter and a trifling change to those who condemn the system and who would banish it from the face of the earth; but it is a fact that from the desire to regulate war, a sense of justice has entered into the relations of nations, and that from the regulation of war that system of jurisprudence which we call the law of nations has largely sprung. This is indeed a very happy and a very comforting, though an unexpected, result. Thus, in this evil—and war is at least an evil, often a crime—with which we are confronted, indeed enmeshed and surrounded, we may nevertheless find this comfort—"from seeming evil still educing good”—that by the persistent regulation of that which should not exist, we have called into being a system of law by means of which peace will ultimately result.
It can not be denied, however, that wars are now less frequent than in the past, notwithstanding the greatly increased complexity of international relations and therefore of the pretexts for war. If this be admitted, as it must, it would seem that international law has been substituted for the force formerly employed in these innumerable disputes which now no longer require it for their settlement. The development of the principles of international law and the extension of their application, concurrently with the decrease in the causes and actual outbreaks of war, are convincing proof of the permanency and effectiveness of the system.
The trouble with our critics is, if their criticism be sincere, that they seem to labor under the delusion that the abolition of war, or the general substitution for it of legal methods, is the work of a single lifetime or of a single generation. A fair knowledge of human history or an average amount of experience in practical human affairs leaves no foundation for such an illusion. The lives of men are nothing as compared with the lives of nations, and each generation can only hope to witness slight and perhaps sometimes faltering steps of progress. Each war must be compared with its predecessors to determine what, if any, effect it may have upon the future of international law.
Examining the present war with this object in mind, we can already see signs of very great progress in the development of the science. If we are to believe the published documents of the different governments, we find most of the European Powers proposing and urging a recourse to the Hague tribunal, or to an informal conference of interested Powers, to avoid war, and when war was not prevented in this way we find every belligerent government, without exception, publishing its reasons, laying the documents in its case before the world at large and appealing to public opinion in all quarters of the globe to justify its actions. Such an appeal, on such a large scale, has never before been made, and we are justified in the belief that the public opinion of mankind—which is the great, indeed the only, practicable sanction for international law—is at last recognized, even by monarchs not supposed to be responsible to popular approval for their actions.
We find again that the greatest burden that some of the belligerents have to bear in the present war is the charge that they have violated treaties and disregarded the rules of international law. It is curious to note in this connection that the country against which this charge is most frequently and violently made had, up to a few years ago, not a single chair in all its great educational system exclusively devoted to the teaching of international law.
The Congress of Westphalia, which ended the Thirty Years' War, marks an epoch in international relations, and it may well be that the peace which ends the present unfortunate war, and the means taken to prevent the violation of its terms, will likewise mark a new era in international relations. If international law, in the sense in which we understand it, entered into the practice of nations with the Peace of Westphalia, the enforcement of international law may date from the peace which we hope may not be long deferred.
THE DEPARTMENT OF STATE AND THE WAR-ADMISSION TO THE
The Honorable Robert Lansing, Counselor for the Department of State, delivered an interesting address at the dinner of the Amherst Alumni, held in New York on February 24, 1915, which dealt with the many and difficult problems arising out of the war upon which the Department of State is obliged to pass. In the latter portion of his address he spoke of the diplomatic service, approving examination for admission to the service for the lower positions and promotions within the lower grades, while leaving the administration free to select the higher officials, such as ministers or ambassadors, either from within or without the service as may seem advisable. It is proposed to quote these portions of the address and to make such comment as may be suggested by the subject-matter.
Reversing the order, the first quotation shows Mr. Lansing's relations to the problems arising out of the war and the way in which they are met and solved. He said:
It is my duty, as many of you know, to deal with the questions of international law and usage, which are arising every day in our relations with other countries. These questions are of absorbing interest and many of them are extremely complex because this war in its magnitude and methods is different from all the wars which have gone before. One can look in vain for precedents in many cases. In fact we have to abandon precedent, that time honored refuge of jurists and diplomatists, and lay hold of the bed rock of principle. Diplomacy today is wrestling with novel problems, to which it must apply natural justice and practical common sense.
The expressions “natural justice and practical common sense" elude definition. Justice is hard to get hold of, and natural justice still harder. Common sense still awaits a satisfactory definition. The meaning, however, would seem to be that, in the absence of a recognized rule of law, we are to create a rule based upon the fundamental principles of law, and practical common sense undoubtedly means the common sense of a man of experience, who decides in the fullest knowledge and with due regard to the facts as found.
Mr. Lansing then passed to the new problems, of which he said:
This great conflict has introduced the submarine, the aeroplane, the wireless telegraph and new forms of explosives. It has made mechanical motive power an absolute necessity in military operations. The old strategy of surprise has given place to mobility. The petroleum products, essential to rapid motion in the air, on land, and beneath the sea, are as necessary to a modern army and navy as arms and ammunition. New devices for communication and transportation are used now for the first time in war, and new modes of attack are employed.
The result is that neutral nations have had to meet a series of problems, which have never been solved. The liability of error, the danger of unintentional impartiality, and the constant complaint of one or another of the belligerents make the path of neutrality rough and uncertain.
In addition to these dangers which beset the way of a neutral it is impossible to proceed with that deliberation, which would appear to be the part of wisdom. Things have to be done, not studied these days. The motto, “Do it now” is not a piece of advice in the Department of State. It is a command. A question which is a week old, is ancient history. Considering the customary slow and dignified ways of diplomacy, this “touch and go" method of doing business was a decided innovation and compelled a radical change in the machinery through which our foreign affairs are conducted.
It is common knowledge that the war increased manifold the business of the Department of State, whose duty it is to look after the interests of American citizens in foreign parts. How the Department met these new responsibilities is thus stated by Mr. Lansing:
When the war began early last August the Department of State, amply equipped for its work in times of peace, was forced to reorganize immediately to meet the new conditions and the enormous increase of its business. With tens of thousands of Americans in Europe clamoring to get home, with the majority of the belligerents turning over their affairs to our diplomatic representatives, with banking credits gone, and with telegraphic communications uncertain and doubtful, the difficulties of the situation were staggering. New bureaus were hastily created. The Departmental force with many inexperienced recruits worked days, nights and Sundays. The correspondence of the Department increased ten-fold. The whereabouts and welfare of probably 100,000 Americans were sought for anxious friends. Credits
were established in the various European capitals and hundreds of thousands of dollars were transmitted to stranded Americans abroad.
While this was going on at Washington, our embassies, legations and consulates were taxed beyond their capacity not only in caring for our people but in caring for the interests of other nations confided to them. All at once the Department of State found itself the diplomatic clearing-house of the world, as well as the banker, transportation agent, and medium of communication for Americans abroad. And, while these new responsibilities were thrust upon it, questions of neutral rights and neutral duties were being presented to the Department every day, which required immediate answer. That the Department of State was able to meet these extraordinary conditions is common knowledge.
Mr. Lansing then considered whether the diplomatic service as a whole should be brought within the civil service, or whether the lower grades should be covered by it, leaving the administration free to fill the higher grades by appointment from civil life. Mr. Lansing's opinions are clear-cut and, as he can be taken as representing the views of the administration, this portion of his address is quoted in full:
The newspapers have recently given a good deal of prominence to addresses and articles advocating that our diplomatic officers be brought under civil service rules in the same way that the entire consular service thanks to President Wilson-is regulated in the matter of appointments and promotions. I must say that the emphatic opinions of some of our former representatives are rather amusing, when one considers that they would never have been appointed under civil service rules.
I will not discuss the value of their opinions, or how much weight should be given to such authorities. The trouble is that they as well as other advocates of the system start out on wrong premises. Chief of these, I think, is the idea that an Ambassador or Minister never acts independently, and his only duty is to repeat words put in his mouth by the Department of State; that he has no more initiative than a consular officer. Now that idea is a common one; it is quite generally believed. If it were true, a permanent diplomatic corps would be just the thing. The fact is, it is a fallacy. Successful diplomacy requires today individual initiative and sound judgment, as it always has. It is the man of force, of originality, of personality, who becomes distinguished in the diplomatic service. On men of that character the success of an Administration's foreign policies depends. They must also be men who comprehend those policies, who are in hearty sympathy with them, and who are enthusiastic and untiring in carrying them out. Now that goes a good deal beyond merely obeying orders.
Of course what I have said does not apply to the subordinate officers of the diplomatic service. I am referring to Ambassadors and Ministers, not to Secretaries. There is no doubt in the case of Secretaries competitive examinations for appointments and promotions work well. I am not sure that the system might not be extended to some of the less important missions. But, when it comes to the principal posts abroad, I am strongly opposed to tying the hands of the President in any way.
Success in diplomacy depends so much on temperament, on reputation, on char