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INTERNATIONAL LAW AND SOME CURRENT ILLUSIONS1

In the Autumn of 1914, three months after the war in Europe burst upon a startled and incredulous world, I ventured, in fulfilment of an engagement of long standing, to make a public address on certain phases of international law, including the arbitration of international disputes. It soon transpired, however, that the times were not propitious for the discussion of such commonplace topics. Before I spoke, a leading citizen asked me whether I intended to announce a plan by which the war would immediately be brought to an end and peace be effectively and permanently assured. Far be it from me to suggest that such an inquiry was beyond the prerogatives of a leading citizen. When that great pioneer and empire-builder, the late James J. Hill, was asked by a representative of the press, soon after the war began, how long it would last, he is reported to have replied, "Young man, you can ask more fool questions in five minutes than I can answer in six months. The war will end when somebody gets licked." Evidently Mr. Hill did not regard his interlocutor as a leading citizen, or he would hardly have answered so brusquely. At any rate, I responded in different terms. But I feel obliged to confess that when, in all humility, I admitted that I had not brought with me any plan for the world's quick transformation, my interlocutor at once lost interest in me.

'This essay incorporates, with material amplification and revision, an address made at the closing session of the Annual Convocation of the University of the State of New York, at Albany, October 19, 1923.

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On the present occasion I hope for better fortune. The war having ended in the ordinary, human way, by the defeat of one of the parties, I count upon a patient hearing, even though I sound no grandiose strain from the nebular regions nor essay to propound a prompt panacea for the world's ills. Recently, on a railway journey, the recollections of childhood were revived by the flare, from signboards and housetops, of the undaunted commendations of certain curatives with which, by advertisement rather than by trial, I had for many years been familiar, and I could not help reflecting upon the fascination which facile promises of benefit exercise over men's hopes and fears. Addison tells us in his time of a mountebank who cheated the country people by selling them pills which were said to be good for the earthquake. But this was, it must be allowed, a rude and primitive age: for, although it steeped itself in the ancient classics; waxed strong on Dante, Luther and Milton, on Shakespeare and Molière, on Suarez and Bodin; itself produced masterpieces in poetry and in prose, and discovered the Law of Gravitation, it knew not those speed-increasing mechanical devices which have in modern times convinced a nervous, vibrant world of its incontestable preeminence in spiritual elevation, in wisdom and reflection, and in serene selfcontrol. In our own later, more moral, more scientific day, when the popular production and consumption even of peace plans is artificially stimulated, we have a remedy, presumptively most efficacious, advertised as "The Pill that won the War." Such things no doubt respond to the universal longing for health and happiness, and as they have their counterparts throughout the medley of human activities, I would not dismiss them too lightly. Nevertheless, no matter in what sphere they may be found, whether in the national or the international, I am compelled to deprecate them in so far as their illusory

solace tends to deaden the sense of present responsibility, and, by creating false conceptions, to divert attention from the simple, elementary truths the felt recognition of which is essential not only to future progress but to the preservation of what has been gained heretofore.

I have said that the war in Europe in 1914 burst upon a startled and incredulous world; and, if I add that this was not a strange phenomenon, I merely mean that the world then acted as it had always done before. Only by way of illustration, I may mention the incident, otherwise wholly unimportant, that when, at the end of May 1914, two months before the war began, I ventured, in my very limited sphere, publicly to set forth the existence. of certain general conditions unfavorable to the preservation of peace, the knowing dispensers of soothing auguries shrewdly intimated that I was a "pessimist." The world is always reluctant to accept disagreeable realities, but, when bewildered by their apparition, it hastily proceeds to exemplify the truth of the proverb that “extremes meet," by demonstrating that even the most opposite misconceptions may have a common spring in the want or perversion of knowledge. So it was in 1914. A hundred years having elapsed since the last of the great struggles that had encompassed the globe, the public, grown unfamiliar with their history, could no longer visualize them. The prevalent impressions of war were formed upon the later and more or less contemporary conflicts, which, though often severe, were comparatively local. It is, therefore, not strange that, although Italy, Spain, the Netherlands, the Scandinavian powers and Turkey, the independent states of America, and the independent countries of the Far East, except Japan, were not among the belligerents, the new war was immediately hailed not only as the greatest, both relatively and positively, of all wars, but as being in an altogether unprecedented sense a "world war." This soon became a fixed

habit of thought. But it was only a detail. Incredulity, rudely shocked, turned to credulity, and, the lessons of previous wars being generally unknown, all kinds of hasty suppositions, scudding, like the spoondrift, across the tempestuous seas, found eager and gulping recipients. Nor did propaganda, observing the symptoms, fail to contribute to the information, and, in its more amiable intervals, even to the entertainment of the public. In a state of mind which assures error against detection and falsehood against exposure, no report is too improbable, no theory too extravagant, no hypothesis too unreal for belief.

While, as the history of wars has shown, this psychopathological condition by no means readily disappears, the uncritical suppositions to which it gives rise, welded by constant repetition into the texture of current thought, strongly tend to persist. Of such suppositions, because their mischievous tendency is the greatest, I will mention only two. One is that existing conditions are wholly new; that even human motives, human interests and human ambitions have radically changed; and that, the world having broken with its past, the rules and remedies painfully wrought out by centuries of experiment have become altogether inadequate and indeed obsolete. The second is that rules are made only to be broken, and that, as they will not be observed, it is scarcely worth while to make them at all. By the combined operation of these two conceptions, one destructive and the other despondent, a general disrespect for law, and especially for international law, is created, and, as they thus constitute an evident menace to the future, I propose to examine them.

Prior to the recent great conflict, whose magnitude and momentous importance render exaggeration superfluous, the development of the laws of war, running through a number of centuries, had been in the direction of estab

lishing and extending the following fundamental principles:

1. The observance of the distinction between combatants and non-combatants and the protection of noncombatants against injuries not incidental to military operations against combatants.

2. The protection of property not militarily used or in immediate likelihood of being so used against destruction, not, as writers sometimes seem to fancy, because of humane regard for insensate things, but because of the belief that, in the interest of humanity, war-stricken peoples should not be reduced to a condition of barbarism or savagery, but should, on the contrary, be enabled to resume the normal processes of peaceful life as soon as possible.

3. The abolition, for similar reasons, of the confiscation of private property, except so far as for special reasons it is still permitted at sea.

4. The definite assurance to states, not parties to the conflict, of the right to continue their commerce with one another, and, subject to prescribed limitations, also with the warring powers.

During and since the recent war all these principles, painfully achieved through centuries of conflict, have to a great extent been questioned. This has been done on the supposition that the recent war, in its drafts on the population, the resources and the activities of the countries involved, was unlike any previous war; that, in contributing to the conduct of the war, all work, in a sense unknown before, became war work and all the inhabitants war workers, the unarmed population no less than the military forces; that the distinction between combatants and non-combatants consequently lost its meaning and ceased to be ascertainable; and that, as the recent war is to be taken as the type of future wars, the distinc

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