responded. Ten years later, Albert Gallatin, who had been Madison's Secretary of the Treasury, discovered in the French archives documents which led him to avow the belief that, if the truth had been known, the United States would never have entered upon the course that resulted in the war. President Polk, in May, 1846, declared that war existed by the act of Mexico, and Congress accepted his declaration; but there has always been a profound difference of opinion in the United States upon the question whether this view was justified. This difference is due to the fact that the title to the territory where the first armed collision took place was in dispute. If the territory belonged to Mexico, its occupation by the United States forces was an act of invasion; if the territory belonged to Texas, the Mexican attack upon those forces was an act of aggression. The insertion in the treaty of 1848, by which the war was ended, of a stipulation to the effect that, if differences should in future arise, neither republic should resort to "reprisals, aggression, or hostility of any kind" against the other, without having maturely considered whether the difference should not be arbitrated, has not prevented the recurrence of incidents whose merits are by no means clear.

The outbreak of war between China and Japan in 1894 presents striking analogies to that between the United States and Mexico in 1846. The answer to the question whether certain initial acts, such as the sinking of the Kowshing, had an aggressively hostile character, depends upon the solution of disputed claims as to what was at the time the status of Korea.

The examples that have been cited suffice to demonstrate how extravagant and groundless is the assumption that nations in general could be expected to hold together in attacking a particular nation, on the mere allegation from some quarter that it had "begun" hostilities. They

further serve to show that, in many instances, the only proper course would be to seek to compel both parties to suspend hostilities. In private law, we should hardly undertake to justify a policeman who made it a rule, when a fight occurred, to side with the party whom he believed to be in the right and help him kill his adversary. Such an innovation in domestic jurisprudence would be truly startling. It can hardly work satisfactorily in the international sphere.

Another question with almost infinite ramifications is that of the relation of the limitation of armaments to the preservation of peace. The Peace Conference at The Hague in 1899 was originally convoked by the Tsar solely for the consideration of that question, but it proved to be almost the only subject related to war which the Conference sedulously avoided. As some nations suddenly grow shy when the "freedom of the seas" is mentioned, so others suddenly balk when the regulation of military preparations is proposed. Nevertheless, it will not do to say that the subject lies wholly outside the realm of practical statesmanship. There have been numerous instances in which agreements, voluntary or involuntary, have been made for the prohibition or limitation of armaments of various kinds. Such prohibi tions or limitations may be found in various agreements for the neutralization of territory or of waterways. The mutual prohibition, for more than a hundred years, of naval armaments on the Great Lakes, which probably accounts for the unfortified state of the land frontier, bears eloquent testimony to the tranquillizing influence of abstention from menace. The most striking example in recent times of an agreement for the limitation of armaments is that which resulted from the Washington Conference in the winter of 1921-22 for the limitation of naval armaments as between the United States of America, the British Empire, France, Italy and Japan.

Perhaps it may be said that the fundamental principle in such arrangements is that of mutuality. The mere absence of armaments will not ensure peace, nor will their mere existence provoke war. On the other hand, rivalry in armaments necessarily excites apprehension, apprehension begets fear, and fear breeds hatred. In the relative adjustment of forces with a view to a fair/ equilibrium, many and diverse elements must be taken into account. The question cannot be solved in a day or by one stroke, nor can the creation of new "balances" or of a "preponderance" of power be regarded as a step toward its solution. In the formulation of plans for the preservation of peace, all the complicated methods which are employed for the regulation of human affairs must be reckoned with. They can no more be neglected in the external than in the internal affairs of states. There must be organization of such character and extent as to gratify the desires, reconcile the ambitions, and settle the disputes of peoples, so that their attitude toward international order and toward internal order may be substantially the same. To this end it will be necessary to rid the mind of exaggerated but old and widely prevalent notions as to the functions and mission of the state, of superstitions as to "trial by battle," of the conceptions that underlie the law of conquest, and of the delusion that one's own motives are always higher, purer, and more disinterested than those of other persons, to say nothing of the passion for uniformity that denies the right to be different. Evidently such a state can be attained only through a substantial and somewhat radical change in the mental attitude of peoples such as will lead them to think first of amicable processes rather than of war when differences arise.

VII

THE PASSION FOR UNIFORMITY1

In the ancient and beautiful city of Münster, with its mediaeval arcades and gabled houses, the traveler finds his curiosity excited by the strange spectacle of three iron cages suspended from the tower of a church. If he consults his Baedeker he learns that these cages once contained the remains of three religious zealots, who, desirous to convert the inhabitants to their way of thinking, swept down upon the place with fire and sword, and committed for the good of their cause many acts such as in these gentler times we seek to discountenance by harshly calling them atrocities. For a while their ardent zeal swept all before them, but they were subsequently driven out; and when later they returned to the charge, they were captured, and, after they were duly tortured with red hot pincers and put to death, their bodies were, to speak with legal precision, severally suspended in the three iron cages, as a warning to the people against the excessive indulgence of the passion for uniformity.

The tendency thus visualized pervades all human history, and has been one of the profoundest causes of the struggles which constitute so great a part of the story of the life of man on earth. From the Scriptures we learn that the Hebrews regarded themselves as the chosen people of God. So regarding themselves, they naturally

'An address before the Society of the Alumni of the Law School of the University of Pennsylvania, April 24, 1914; reprinted from the University of Pennsylvania Law Review and American Law Register, May, 1914 (Vol. 62, No. 7), pp. 525–544.

deemed it to be their duty to spread their faith by force if necessary. They looked upon other nations not only as inferiors, but as being enemies because of their inferiority. By the same process of reasoning, they deemed it to be a virtuous act to put their enemies to death, not as combatants but simply as enemies, and they therefore embraced in their destructive plan women and children, so as to prevent the propagation and growth of dissimilarity. The attitude of the ancient Hebrews was shared in one form or another by other peoples. To the Greeks, alien peoples were barbarians. Being different from themselves, they necessarily bore the stamp of inferiority. The view of the Romans was the same, and they exhibited even more strongly than the Greeks had done the propensity to extend their power and their institutions to other lands by force. We are told that when the Thracians took Mycalessus they put to death the women and children; that so did the Macedonians when they took Thebes, and the Romans when they took Ilurgis in Spain; while Germanicus ravaged the Marsi with fire and sword and without sparing sex or age. And we are assured that some of the warriors under whom these things were done were counted as humane men.

From these highly authoritative sources, religious and political, the same ideas descend to the modern world. Grotius, whose great work, De Jure Belli ac Pacis, appeared at the close of the first quarter of the seventeenth century, reviewed the ancient authorities to the effect that war, when declared against a country, extended to all the people, so that the slaughter of women and infants was attended with impunity, as comprehended in the right of war. Grotius doubted whether there should be adduced in support of this right the slaying of the women and children of Heshbon, as recorded in Deuteronomy, or what was done to the Canaanites and their * Deuteronomy, ii. 34.

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