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reconsider the question of its legitimacy. "'It is hard to believe that the world is prepared to concede that, in the "next war," the first and legitimate measure of the belligerent forces will be to bomb or otherwise destroy producers of food-stuffs and other contributory classes heretofore considered as non-combatant; and yet, if the distinction between combatants and non-combatants has ceased to exist, such a measure would be legally justified and strategically correct." Napoleon said that armies move on their bellies. No one contributes more to this essential military gesture than the grower of grain; no one contributes more essentially to the national resources. This is true today and always has been true. As men must live in order to fight, their physical sustentation is obviously a primary military necessity; and, if the supply of food is a combatant activity, evidently the most dangerous fighter is the tiller of the soil. It is, however, gratifying to reflect upon the fact that there is not a single government today that is either accepting or supporting such a theory." There is, I venture to say, no government that would feel that it could espouse such a conception and face the general condemnation that would follow. Why, then, should those who profess to speak for international law foreshadow the surrender of the world to a contrary view? None render a higher or more solemn service than do those who point out infractions of the established law and warn their fellow-men of the consequences of its impairment.
While the abolition of the distinction between combatants and non-combatants, whether by its outright abandonment or by the indefinite expansion of the combatant category, would stalk the way to indiscriminate destruction of life and property, the question also has a vital relation to the conduct of commerce in time of war, especially as affecting the rights of neutrals. During and after the recent war there were many utterances betokening
the belief that the world had entered into a new realm of fact as well as of imagination. Among these was the statement that there would be no more neutrals. This forecast may fairly be said to have perished with its utterance. But, even had it been verified, the question of commercial rights in time of war would hardly have disappeared unless the nations of the world had forborne, or agreed to forbear, to trade with countries at war. At the present moment there is no evidence that such a condition of things is likely to arise; and meanwhile the question of contraband of war, which forms the subject of our second chapter, will continue to be of capital importance, not only as affecting commerce, but as affecting the possibility or probability of the extension of wars to nations not originally involved in them.
The paper on international arbitration contains the substance of an address made ten years ago; but the address had not lost any of its relevancy by reason of the lapse of time. Conceivably, the conditions which it portrayed are even more serious today than they were formerly. John Stuart Mill was wont to insist that there could be no difference between theory and practice, and that, if they diverged, either the theory or the practice must be unsound. But, judging by what is said and what is done in respect of international arbitration, we perhaps might be justified in thinking either that Mill's rule has few followers, or that international arbitration forms an exception to it. Although there are few who oppose international arbitration in theory, yet the scope of its operation has by no means been so much enlarged during the past twenty years as is popularly imagined. When I stated, in 1914, that, so far as concerned the United States, the practice of arbitration was not then so far advanced as it was a hundred and twenty-four years before, I gave precise proof of the correctness of the statement. This condition has not changed.
With a view to promote the judicial settlement of international disputes, there has lately been established the Permanent Court of International Justice, whose seat, like that of the Permanent Court of Arbitration, is at The Hague. The Permanent Court of International Justice has been opened to all nations, but they are not all parties to it and contributors to its support. Among those that have not adhered is the United States. President Harding and President Coolidge have recommended our adhesion. The eventual action of the government hangs in suspense. The subject is one of general interest, without regard to the attitude of any particular government; and, with a view to the information of the public, a chapter on the constitution of the Court and the work it has done has been included in the present volume. The informative value of this chapter is greatly enhanced by the printing with it of the Court's organic Statute, together with the Rules of Procedure.
In the Winter of 1922–1923 an International Conference was held at The Hague for the purpose of making rules to regulate the uses of aircraft and of radio in time of war. In this conference six governments were represented: namely, the United States of America, the British Empire, France, Italy, Japan and the Netherlands. The conference consisted of a commission of jurists composed of civilian delegates of each of the designated governments, and a number of military and naval experts.
The various branches worked together in harmony and with singleness of purpose; but it is only proper to state that, if the civilians had sought to act upon the supposition that the distinction between combatants and noncombatants no longer existed, they would immediately have found themselves at hopeless variance with their military and naval advisers. No voice came from any quarter in favor of the use of aircraft for purposes of indiscriminate destruction. On the contrary, the entire work of the conference proceeded upon the unchallenged assumption that the distinction between combatants and non-combatants continued to exist, in full force and unimpaired; and, as is shown in our chapter on the subject, with which the full English text of the Commission's reasoned report is printed and made accessible, the rules that were adopted were specifically designed to assure the observance of that distinction.
While I have placed constant stress on this particular point because it is fundamental, I feel obliged to say that there are also other well-defined and heretofore unquestioned rules which the present propensity to drift in the uncharted eddies of current speculation tends to put in jeopardy. There is need all along the line of a recurrence to fundamental principles; and, when I speak of recurring to principles, I include the task of endeavoring to comprehend both the reasons on which they rest and the great facts of human experience from which they are derived. To a certain extent, a vague notion appears to prevail that the measure and test of law is to be found in the shifting sands of philosophical fancies which are subject to the inroads of each recurring tide. The law undoubtedly contains an element of speculation, but, as has been profoundly observed, the great source of law is human experience. Law is supposed to incorporate, not the exaggerated or disproportionate impressions freshly created by isolated events, but the mature, condensed expression of the cumulative results of long observation of human activities and needs. As an element in legal discussion, philosophy, when it parts company with this source of wisdom, is only too prone to be but the expression of moods that reflect the turbulence or the tranquillity of the time. The attempt to substitute for a rule the supposed reason of the rule should also be sparingly indulged.
‘Holmes, The Common Law, p. 1. See, also, Cardozo, The Nature of the Judicial Process, p. 32.
Thus, when writers, for example, in discussing jurisdiction over the marginal sea, speak of the “cannon-shot rule" instead of the “marine league,” one cannot avoid an uncomfortable feeling that the substitution of the reason of the rule for the rule itself would unloose the world from its moorings, and substitute confusion and conflict for certainty.
The essay entitled “Law and Organization,” like that on international arbitration, incorporates the substance of an address made ten years ago; but, while I have found nothing in the address to change, I have added explanations for the purpose of elucidating certain phases the definite discussion of which the circumstance and limitations of the original occasion rendered impossible. It may be superfluous to remark that the subject of organizing the world for the purpose of making and enforcing law is as difficult and perplexing as it is ambitious. Being highly speculative, it readily lends itself to the formulation of proposals. Without essaying to add to the number of those already in circulation, I have ventured to present some of the problems the existence or seriousness of which is often overlooked.
The address entitled "The Passion for Uniformity” is republished in the present volume not only because it discusses certain phases of international law, but also because it strongly emphasized, ten years ago, the importance of adopting measures to remedy the chaotic legal conditions which even then notoriously existed in the United States. The confusion continued rapidly to grow; and the increasing dissatisfaction with it eventually led to the organization at Washington, on February 23, 1923, of the American Law Institute, whose objects, as stated in the by-laws, are "to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal