decided to incorporate the proposal in its general report, so as to bring it to the attention of the governments.

*

VIOLATION OF THE RULES.

No provision is made in the articles adopted as to the penalties to which persons violating the rules are to be subject. Some of the provisions in the drafts laid before the Commission stated that persons violating the article in question were to be punishable with death, or were to be treated as war criminals. No such stipulation figures in the Land Warfare Regulations and it has seemed better to omit it. Its absence will not in any way prejudice the imposition of punishment on persons who are guilty of breaches of the laws of aerial warfare.

Done at The Hague, the nineteenth day of February, 1923.

Webster, as a prelude to his reply to Hayne, asked for the reading of the resolution before the Senate, in order that the minds of his hearers might be led back to the original and perhaps forgotten subject of the debate. Today we may well imitate his example, by recurring to fundamental principles. For five months we have stood in the presence of one of the most appalling wars in history, appalling not only because of its magnitude and destructiveness but also because of its frustration of hopes widely cherished that the progress of civilization had rendered an armed conflict between the leading powers of the world morally impossible. As a result we have since the outbreak of the great conflict been tossing about on the stormy sea of controversy, distrustful of our charts and guides, and assailed on every hand with cries of doubt and despair. We have been told that there is no such thing as international law; that, even if its existence be admitted, it is at most nothing but what superior force for the time being ordains; that international understandings, even when embodied in treaties, are practically worthless, being obligatory only so long as they may be conceived to subserve the interests or necessities of the moment; that the only security for the observance of international rules, general or conventional, is force, and

'Presidential address at the eleventh annual meeting of the American Political Science Association, at Chicago, in December, 1914. Reprinted from The American Political Science Review, Vol. IX, No. 1, February, 1915.

that in force we must in the last analysis find our sole reliance.

Thoughts such as these, to which distrustful minds have been known to give expression even in time of peace, are the natural product of times like those through which we are now passing. Students of law are familiar with the maxim, bequeathed to us by Cicero, that in the midst of arms the laws are silent-inter arma silent leges. This maxim primarily refers to municipal rather than to international law, but it may be applied to either. Its meaning and scope may easily be misconceived. It signifies in effect that, when a contest by force prevails, the ordinary rules and methods of administration become inadequate and give way to measures dictated by public necessity. The system by which the ordinary administration is superseded is called martial law. Under this system the ordinary guarantees of individual liberty are suspended; but, although this is the case, we should stray far from the truth if we were to accept in a literal or popular sense the statement that martial law is "the will of the general who commands the army." The true meaning of this phrase was expounded by the Duke of Wellington, the great commander who uttered it. The general in command, although he possessed supreme power, was, said the Duke of Wellington, "bound to lay down distinctly the rules and regulations and limits according to which his will was to be carried out." The Duke declared that he had in another country carried on martial law, and in so doing "had governed a large proportion of the population of the country by his own will." But then, he asked, what did he do? and his answer was, "he declared that the country should be governed according to its own. national laws, and he carried into execution that will. He governed the country strictly by the laws of the country; and he governed it with such moderation, he must say, that political servants and judges who at first had fled

or had been expelled, afterwards consented to act under his direction. The judges sat in the courts of law, conducting their judicial business and administering the law under his direction."2

It is thus evident that when, in discussing martial law, we refer to the "will" of the commanding general, we refer to regulated and not to arbitrary action, so that even in the theatre of war, where the military commander is supreme, the idea of law does not disappear.

The idea of law is in reality the very foundation of the entire theory of military occupation. The obedience which the inhabitants of the occupied territory owe to the military commander is merely an expression of this principle. While the inhabitants owe obedience, it is equally true that the military commander is on the other hand bound to render them protection, and is not permitted to treat them altogether as enemies so long as they observe the rules and regulations established for their government. Such is the principle laid down by writers on international law and by military commanders who have respected the established rules of international intercourse.

But it may be asked, what is international law? What is its essential nature; and, particularly, what is its position as compared with municipal law, and what is its sanction?

It may at the outset be admitted that a vast deal of time has been wasted in controversy over the question whether international law is law at all. These controversies, if minutely examined, will usually be found to have proceeded from one of two causes, namely, either (1) that the disputants have approached the subject from the point of view of preconceived definitions which were incapable of reconciliation, or (2) that, if they have

Speech of the Duke of Wellington, Debate on Affairs in Ceylon, House of Lords, April 1, 1851, Hansard, 3d series, CXV. 880.

agreed upon a definition, they have differed as to its application.

Probably no definition ever had a more pronounced effect on legal thinking than had the definition of law, given by Austin in his work on Jurisprudence, upon the legal mind of England and the United States. According to Austin, "a law, in the literal and proper sense of the word," is "a rule laid down for the guidance of an intelligent being by an intelligent being having power over him." This definition, according to its author, embraced "laws set by God to men" and "law as set by men to men." Of the latter, some were "established by political superiors acting as such," and constituted "positive law"-the appropriate matter of jurisprudence. "Closely analogous to human laws," but "improperly termed laws," were, he declared, "rules set and enforced merely by the opinion of an intermediate body of men," such as "the law of honor," or the "laws of fashion." Rules of this species constituted, he said, much of what was commonly termed "International Law"; and he placed them all in the category, not of law, but of "positive morality." Among the essentials of a law properly so called, he specified a "command" and a "sanction," the latter being the evil which would probably be incurred in case a command should be disobeyed.

Without commenting upon a terminology that smacks of the medieval, jure divino conception of law as the product of superior power rather than of delegated authority, a moment's reflection suffices to show that Austin's so-called definition is at most merely a description of municipal law, and even for that purpose is not sufficiently comprehensive, since it would, for instance, exclude a large part of constitutional law, much of which, like a considerable part of international law, is not enforced by courts by means of specific penalties. Nor would it be difficult to show that it is in its conceptions