One of the best achievements of The Hague Conference of 1907 was the scheme for an International Court of Appeal in Prize Cases. The world was not ready for it, and the differences of view between the greater and the lesser Powers have not unnaturally prevented its ratification. But is it not, under present circumstances, possible that a shorter step in the same direction might and could be taken by some of those Powers who are most concerned in the proper disposition of prize court proceedings?

Madame de Staël declared that mankind was always advancing, but always in a spiral course. In 1915 the world, while it moved far during the preceding century or two in the direction of human brotherhood, seems to have come to a pause very close, so far as commercial intercourse between nations is concerned, to the point reached at the time of the French Revolution.

Gentlemen: The address that I am to make, in response to the gracious invitation of our eminent President, on this too burning and too present subject, will be a very simple and a very modest endeavor. Do not expect a doctrinal study, an exposition, or a critical appreciation of the conduct of the belligerents in the struggle that is being so desperately waged on both sides. The time has not yet come to pass reasoned judgment upon the acts which have been committed by certain belligerents and which are of such a nature as to humiliate us as men and to distress us as Frenchmen. I am speaking here in the name of the Institute as a whole. In addition, the Academy of Moral and Political Sciences, which is particularly well qualified in such matters by reason of the nature of its studies, has expressly commissioned me, as one of its members, to lay before you its protest against these abominable acts. Can it be possible that mankind, whom we have considered civilized through the efforts of many centuries, has come to such a pass? I do not wish to say anything of a polemical nature, which is not in keeping in this place and at this time. I wish to confine myself to statements of a purely legal character. The brevity of the exposition may incline you to excuse its dryness.

Mr. Atherly-Jones, in his Commerce in War, says that what the courts of the United States did, during the Civil War, was not to apply the principle of a continuous voyage (which had been originally asserted in support of national monopolies of colonial trade), to the carriage of contraband goods, still less to blockades; but to depart from the old rules of evidence.

It would not be possible to understand, much less to state clearly, the origin, nature, and extent of the so-called Doctrine of Continuous Voyages without explaining, even in a succinct manner, the causes that contributed to the statement of this famous principle. There is hardly anything in the field of social conceptions that is not in some way or other connected with the past. For this reason when we want to ascertain the principles that obtained in a period gone by it is imperatively necessary that our inquiries should start from an age even more remote, so that the light of history may clear the paths that we intend to explore. During the middle of the eighteenth century nothing was heard of the doctrine which we attempt now to expound; it was only at the end of that century that its first manifestations appeared. But the examination of the navigation laws of the times and of the principles of international law that regulated the intercourse between neutrals and belligerents would at once suggest that the prohibition which the doctrine embraced is dependent on or complementary to the so-called “Rule of war of 1756.”

The late Professor Edward Bourne, of Yale, used to say that the Philippine Islands were attached to the Spanish West Indies till after 1823, and therefore it ought to be presumed that Monroe intended his doctrine to apply to that Asiatic archipelago. The quip leads the mind to the important fact that the relations of the Pacific Coast of America, the Pacific Ocean, and the nations of Asia, are all bound together. The first Asiatic trade went from Philadelphia, Boston, Providence, and other Atlantic ports via the Northwest Coast to China. The relation of the original Monroe Doctrine to Oregon is familiar to all students of the Monroe Doctrine. It is curious that the objection to “colonization” which was intended to block the way of Russia, has been applied almost entirely to the West Indies and the eastern coast of North and South America. The clause in Monroe’s declaration had little to do with the process by which the United States came to have a Pacific front.

International law in common with other sciences is compelled to lay down certain major premises or postulates. These are variously termed the “fundamental,” “primordial,” “inherent,” or “absolute rights” of the state. Thus Hall says:

International law is at once on its trial and in the moulding as it has never been before. It is just a hundred years since the last world-wide war was fought; and to that period one must go back to trace the source of the principal rules and practices of the law of war, and especially of maritime warfare. In the interval, the form of international law and much of its substance have been entirely changed. From indefinite practice and varying usage, imperfectly systematized by text writers, it has passed into the condition of definite rules and uniform law, formulated by international conventions. But most of this definite law has not yet stood the test of practice. So far as the rules of maritime warfare are concerned, it is largely consolidated in conventions made at international conferences during the last seven years. These conventions have indeed been already applied in the war of Italy and the Balkan Powers against Turkey, but they were not searchingly tried in those contests, which were determined by land operations. Strictly, the conventions are not binding in this war, because they are intended to apply only in wars in which all the belligerents are parties, and Servia and Montenegro have not ratified any of the 1907 agreements; but, in fact, the great Powers are professing* to act according to the international legislation.

On February 4, 1915, the German Admiralty published the following decree:

International law allows a belligerent two means of preventing wholly or in part sea-borne commerce between his enemy and neutral states. These are: first, the right to seize and confiscate absolute contraband goods destined to enemy territory and conditional contraband intended for the use of the armed forces or government of the enemy state; and, second, the right to blockade the ports and coasts of the enemy and thereby to prevent commercial intercourse with him in all articles whether contraband or not. In the April number of this Journal (pp. 372–401) I discussed in the light of the rules of international law applicable thereto the measures that have been adopted by the British Government in respect to trade in contraband since the beginning of the present war. The present article will be devoted mainly to a consideration of the British order in council of March 11,1915, the purpose and effect of which was to establish a blockade of all commerce entering and leaving Germany.

Introductory. At this time nearly all serious minds are preoccupied with the problem how, after the European war, peace may be most effectively promoted and maintained. Thoughts are turned toward the question what is the best international system for the sustenance of higher international justice—a revitalized Concert of Europe, or of the world, or some new application of the “balance of power” principle. There are those who consider the “balance of power” doctrine to have outlived its usefulness, and to have shown itself productive of mischief; others would retain or reconstruct existing alliances in a form more efficacious for the preservation of international peace. Statesmanship will have to face many other difficult problems of international relationship after the war, and internationalists will be impelled to give a greatly increased share of their attention to the sanctions of international law and to the political conditions essential to its maintenance and development. Such questions call for an understanding of aspects of the life of the international community that are now much more strongly accentuated than they were before the war, and that can scarcely fail to attract scientific study to factors in the general situation the importance of which till recently was underrated. These practical problems demand in some degree philosophical study of the structure of the international community; as pure science precedes applied science, the communal life of States must be analyzed before light can be thrown on the issues of practical statecraft. The question how international force is to be organized, so as to render most effective aid to the cause of justice, presupposes for its satisfactory solution an inquiry into the actual constitution of the international society. States, moreover, can wisely order their future only by acting with full knowledge of the lessons of history. The interpretation of history is a necessary point of departure for the statesman and the publicist, if they are to offer sound proposals for practical action. But one is powerless to extract any meaning from history without understanding the social processes of which conspicuous historical events are but the surface manifestations. One must read history in the light of political science to grasp its meaning. Thus we are led inevitably, as a preliminary to any practical program, or to any interpretation of recent history, to the task of surveying the actual distribution, transformation, and organization of international force, and of stating in analytical terms the relation between these processes and the maintenance of international right—that is, order and justice. The conceptions of international force and of international power are so closely related as to be almost identical, but in this investigation we prefer the concept of force as something more positive and more tangible than power, which is latent force, or that which may develop actual force. For this reason the propositions here elaborated apply equally to the organization of international power—to the establishment of that authority through which the supremacy of law is effectuated and secured.

The doctrine of servitudes as it stands at present in international law is in a very incoherent state. From the Roman law the concept, with an elaborate set of rules for its operation but with no philosophic or theoretical development, was transmitted at the time of “the Reception” to the semi-feudal jus publicum of the sixteenth and seventeenth centuries. During the seventeenth and eighteenth centuries the doctrine was taken over by the developing jus gentium.

This experience, this double growing over from private law to public law and thence to international law, has sadly shattered the doctrine. The modifications made by feudal and dynastic and mercantilist manipulation have warped the concept out of all symmetry. Indeed, it is possible that traits picked up en route have ruined the doctrine for modern use.