¹ War message, April 2, 1917. Scott, J. B. (ed.), Official Statements of War Aims and Peace Proposals, December, 1916, to November, 1918 (Washington, 1921), p. 89 Google Scholar

² League of Nations Official Journal, 1920, Vol. 1, No. 2, p. 57. The resolution made a special exception to this principle in recognizing the permanent neutrality of Switzerland under the treaty of 1815.

³ Great Britain, Foreign Office, Memorandum on the Optional Clause of the Statute of the Permanent Court (Misc. No. 12,1929, p. 10). For variations in British official attitude on this point since 1920, see Lauterpacht, , “Neutrality and Collective Security,” Politico, 1936, p. 140 Google Scholar.

⁴ Foreign Affairs, Supplement to issue of Oct., 1932, p. iv. Other statements to similar effect are quoted by Borchard and Lage, Neutrality for the United States (New Haven, 1937), p. 248 ff., and by Lauterpacht, loc. cit. The latter concludes: “In so far as words are used with due regard to their ordinary meaning, not befogged by the deliberate artificialities of diplomatic language, it is true to say that collective security and neutrality are mutually exclusive. The more there is of one the less there is of the other.” (P. 149.)

⁵ See Cohn, Georg, Neo-Neutrality (New York, 1939), p. 62 ff.Google Scholar; Jessup, Philip C., The United States and the Stabilization of Peace, A Study of Collective Security (New York, 1935), p. 132 ff.Google Scholar; Harvard Research in International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War, this Journal, Supp., Vol. 33 (1939), p. 204 ff.

⁶ Jessup, Philip C., “The Birth, Death and Reincarnation of Neutrality,” this Journal , Vol. 26 (1932), p. 789 ffGoogle Scholar.

⁷ Aug. 31, 1935, Feb. 29, 1936, May 1, 1937, Nov. 4, 1939. For texts, see Deák, Francis and Jessup, Philip C., A Collection of Neutrality Laws, Regulations and Treaties of Various Countries (Washington, 1939), Vol. 2, p. 1100 ff.Google Scholar, and Deák, , “The United States Neutrality Acts, Theory and Practice,” International Conciliation, March, 1940 Google Scholar.

⁸ See especially Borchard and Lage, op. cit., and Cohn, op. cit.

⁹ Supplement, Vol. 33 (1939).

¹⁰ The Far Eastern and Russo-Finnish hostilities seem not to have called forth any neutrality proclamations.

¹¹ Deák points out that while these acts of the United States may “reduce the likelihood of the United States being forced or induced to abandon its neutrality,” they have “only a distant and vicarious relationship to neutrality as that term is understood as the aggregate of rights and duties between belligerent and neutral states in international law.” (Loc. cit., p. 80). See also Wilson, G. G., this Journal , Vol. 34 (1940), p. 89 Google Scholar.

¹² Wright, Q., “The Future of Neutrality,” International Conciliation, Sept., 1928; The Causes of War and the Conditions of Peace (London, 1935)Google Scholar.

¹³ See Kunz, Josef, “The Law of Nations, Static and Dynamic,” this Journal , Vol. 27 (1933), p. 634.Google Scholar

¹⁴ Grotius defined “war” as “the state of persons contending by force as such” (De Jure Belli ac Pads, 1625,1, c. 2, par. 2); Bynkershoek defined it as “ a contest between independent parties by way of force or deceit for the purpose of pursuing their rights” (Quaestionum Juris Publici, 1737,1, c. 1); and Vattel, as “that state in which we prosecute our rights by force” (Le Droit des Gens, 1758, III, c. 1, sec. 1). These imply equality in the legal position of the participants, a position emphasized by Luther when he wrote: “War against equals should be a thing that is made necessary and should be fought in the fear of God,” but coercion of inferiors by superiors is not properly war, and violence by inferiors against superiors is not “right.” (Works, Trans. Jacobs, C. M. (Philadelphia, 1931), Vol. 5, pp. 62, 63, 65Google Scholar.) Francis Bacon emphasized the same thought when he referred to war as “the highest trial of right when princes and states shall put themselves upon the justice of God for deciding their controversies as it shall please Him to put on either side.” (1625, Works, Montague, ed., Vol. 5, p. 384 Google Scholar.) For other definitions of war, see Wright, Q., “Changes in the Conception of War,” this Journal , Vol. 18 (1924), p. 762 Google Scholar, and William Ballis, The Legal Position of War, Changes in its Practice and Theory from Plato to Vattel (The Hague, 1937).

¹⁵ The word “war” ordinarily refers to “war in the material sense”, i.e., the large-scale use of armed force between governments. The Prize Cases (1863), 2 Black 665; The Three Friends (1897), 166 U. S. 1; Wright, loc. cit., p. 761. Bynkershoek was perhaps the first of the jurists to recognize clearly the modern legal conception of war as a status between “independent persons” in which there are neutrals “who belong to neither party”, and who “must in every way guard against interfering in the war and against showing favoritism toward or prejudice against either belligerent.” (Op. cit., I, c. 1, c. 9, Carnegie ed., pp. 15, 60, 61.) Luigi Sturzo recognizes the sharp distinction between the post-Renaissance conception of war and that of the Middle Ages. (The International Community and the Right of War, New York, 1930.) See also Ballis, op. cit. Jackson Ralston satirically indicates the logical development of the law of neutrality when war is treated as a duel. (Democracy’s International Law (Washington, 1922), p. 36.)

¹⁶ This is the attitude recommended by Cohn under the name, “neo-neutrality,” op. cit., and by Senator Nye, Report of the Special Committee on Investigation of the Munitions Industry pursuant to Senate Resolution 206 (73rd Cong.), 74th Cong., 2nd Sess., Report No. 944. See Borchard and Lage, op. cit., pp. 314, 315.

¹⁷ This is the attitude recommended by the League of Nations Covenant to its members. Supra, notes 1–4.

¹⁸ Bynkershoek excluded from the designation of neutral (non hostes) those favoring one side. (Supra, note 15.) The present writer has suggested the word “partiality” as more appropriate for such attitudes (“Neutrality and Neutral Rights following the Pact of Paris,” Proc. Am. Soc. Int. Law, 1930, p. 86), a word employed in the index of the U. S. Naval War College, International Law Documents, 1917, to describe the attitude of several of the Latin American countries after the United States entered the World War.

¹⁹ Hindmarsh, Albert E., Force in Peace (Cambridge, 1933)Google Scholar; Wilson, G. G., “War Declared and the Use of Force,” Proc. Am. Soc. Int. Law, 1938, p. 106 ff.Google Scholar, and discussion following, by Hindmarsh, Wright, Kunz, et al.

²⁰ Wright, Q., “The Future of Neutrality,” International Conciliation, Sept., 1928, p. 353 ff.Google Scholar; “Neutrality and Neutral Rights following the Pact of Paris,” Proc. Am. Soc. Int. Law, 1930, p. 85 ff.

²¹ Wilson, G. G., this Journal , Vol. 34 (1940), p. 89 Google Scholar, and supra, note 16.

²² Eugene Staley, Raw Materials in Peace and War (New York, 1937), p. 40, distinguishes “law and order” neutrality from “storm cellar” neutrality, and from insistence on “neutral rights.” E. M. Borchard seems to have the same distinctions in mind when he refers to the “sanctionist,” the “insulationist” and the “candid neutrality” schools. (“Neutrality,” Yale Law Journal, Vol. 48 (1938), p. 46 ff.; “Sanctions vs. Neutrality,” The Hungarian Quarterly, Vol. 1, 1936.) See also supra, note 17.

²³ Neutral rights at sea began to develop with the rise of commerce in the 12th and 13th centuries, but the use of the term “neutrality” in treaties did not begin until the end of the 15th century (Walker, History of International Law, p. 195; Nys Le Droit international, Vol. 2, p. 559 ff.; Holland, T. E., Lectures on International Law (London, 1933), p. 407 Google Scholar; Marsden, , Law and Custom of the Sea (Navy Record Society Publications, 49), Vol. 1, p. 149 Google Scholar; Knight, W. S. M., “Neutrality and Neutralization in the 16th Century—Liége,” Journ. Comp. Leg., 3rd Ser., 1920, Vol. 2, p. 48 ff.Google Scholar; Jessup, and Deik, , Neutrality, Its History, Economics and Law, Vol. 1, The Origins (New York, 1935), pp. 4 ff., 20 ff.Google Scholar; Wright, Q., “The Future of Neutrality,” loc. cit., p. 363 ff.Google Scholar), and the conception of a legal status of neutrality involving both rights and duties hardly emerged until the 18th century. “Writers of the late 16th and early 17th century … failed to envisage the existence of the legal condition which arises from war and to distinguish it from the use of forcible means of obtaining redress, such as reprisals, where a state of war is not in existence. There was not in fact, the same necessity for the modern conception of war as there is today, since the modern notion of neutrality with the rights and duties of neutrals which it involves was non-existent.” ( Higgins, A. P., “International Law and the Outer World, 1450–1648,” Cambridge History of the British Empire, Vol. 1, p. 189 Google Scholar. See also Hall, W. E., International Law (7th ed., 1917), p. 632 Google Scholar; Jessup, and Deák, , op. cit., p. 249 ff.Google Scholar)

²⁴ Butler, and Maccoby, , The Development of International Law (London, 1928)Google Scholar.

²⁵ Prolegomena, sec. 18.

²⁶ Sturzo, The International Community and the Right of War (New York, 1930). Machiavelli regarded it as “more frank and princely” and also “more profitable” to make war than “to stand neuter.” (The Prince, Ch. 21.) President Jefferson suggested on the outbreak of the Russo-Turkish War (1806) that the United States “milk the cow while the Russians hold her by the horns and the Turk by the tail.” (Thomas, American Neutrality in 1793 (1931), p. 16.) See also Rippy, J. F., America and the Strife of Europe (Chicago, 1938), pp. 16 ff., 103 ffGoogle Scholar. “If a nation is virile and prolific, if the doors to emigration are largely shut, if it lacks raw materials and markets, if it sees less sturdy neighbors in possession of colonial resources, the urge to expansion may become irresistible—even though expansion be unwise and unprofitable. These are biological considerations, in which ethics play only a minor role. Unless then the world is prepared to recognize and satisfy such a country’s needs or assumed needs by negotiation, an explosion is quite possible. Some weakly held territory or aging state is then in danger. This has been the traditional, if unfortunate, method of readjusting the tenure of the earth’s crust, and until we find a better method, the old one will be hard completely to outlaw.” ( Borchard, E. M., “Neutrality,” Yale, L. J., Vol. 48 (1938), p. 40 Google Scholar.)

²⁷ This was especially the British policy during the period of imperial expansion in the 18th and 19th centuries. Germany, Italy and Japan urged neutrality to facilitate their aggressions during the 1930’s.

²⁸ Thus the United States did its best to obtain allies during the American Revolution, as did China, Ethiopia, Czechoslovakia and Poland when attacked in the 1930’s.

²⁹ This is one basis of the traditional American policy of isolationism and of the policy of permanently neutralized states such as Switzerland. See Wright, Q., “The Future of Neutrality,” lac. cit., p. 21 Google Scholar; “The United States and Neutrality,” Public Policy Pamphlet, No. 17 (University of Chicago, 1935), p. 11.

³⁰ Jessup, and Deák, , Neutrality, Its History, Economics and Law, Vol. 1, p. xii Google Scholar.

³¹ Potter, Pitman B., The Freedom of the Seas (New York, 1924)Google Scholar, Chs. 10,11, distinguishes the policy of the typical continental Power from that of the typical maritime Power. The commentary to the Harvard Research Draft Convention on Neutrality notes the difficulty of making a code applicable to both “small” and “large” wars. (This Journal, Supp., Vol. 33 (1939), p. 487.)

³² Speier, and Kahler, , War in Our Time (New York, 1939)Google Scholar, Introduction; Jessup, and Deák, , op. cit., p. 12 ffGoogle Scholar.

³³ Staley, Eugene, World Economy in Transition (New York, 1939)Google Scholar, Ch. 1.

³⁴ “In my judgment”, wrote Bynkershoek, expressly disagreeing with Grotius, “the question of justice and injustice does not concern the neutral, and it is not his duty to sit in judgment between his friends who may be fighting each other, and to grant or deny anything to either belligerent through considerations of the relative degree of justice.” (Quaestionum Juris Publici, 1737,1, c. 9, Carnegie ed., p. 61.) Vattel expresses a similar view: “When a war breaks out between two nations, all the others who are not bound by treaties are free to remain neutral.” He does, however, counsel them to consider whether there are reasons for taking sides, in which connection the justice of the cause should be examined as well as the national advantage of intervention. (Droit des gens, 1758, II, c. 7, sec. 106, Carnegie ed., p. 268.) Wheaton asserts “the right of every independent state to remain at peace whilst other states are engaged in war, is an incontestable attribute of sovereignty.” He adds: “It is obviously impossible that neutral nations should be wholly unaffected by the existence of war between those communities with whom they continue to maintain their accustomed relations of friendship and commerce”; but he suggests no interest in the justice of the war’s initiation. (Elements of International Law, 1836, sec. 414, Carnegie ed., p. 426.)

³⁵ Halleck, even as recently as 1861, devotes a long chapter (15) to “just causes of war,” but most 19th-century jurists dismiss the subject as outside their sphere. “The voluntary or positive law of nations, ” writes Wheaton, “makes no distinction in this respect, between a just and an unjust war.” (Sec. 294, Carnegie ed., p. 313.) Lawrence writes that, while “supremely important, ” the subject is “as much out of place in a treatise on International Law as would be a discussion on the ethics of marriage in a book on the law of personal status.” (Principles of International Law, 1895, sec. 135, 7th ed., p. 311.) John Bassett Moore seems to take a similar position when, though admitting that international law concedes to war “legality,” he denies that neutrality forbids “moral judgments and their translation into action.” War he regards as inevitable as procreation. It should be “regulated” to prevent “uncertainty and chaos,” but “a legal ban would be both futile and ridiculous.” (“An Appeal to Reason,” Foreign Affairs, July, 1933, p. 558.) A quarter of a century earlier, however, he had considered it “altogether inadmissible” to infer “that a nation may lawfully or properly begin a war at any time and under any circumstances, with or without notice, in its own absolute discretion. … If, for example, a nation, wishing to absorb another, or to seize a part of its territory, should, without warning or prior controversy, suddenly attack it, a state of war would undoubtedly follow, but it could not be said that the principles of honor and good faith enjoined by the law of nations had not been violated.” (A Digest of International Law (Washington, 1906), Vol. 7, p. 171.)

³⁶ Eppstein, John, The Catholic Tradition of the Law of Nations (Washington, 1936)Google Scholar; Regout, Robert, La Doctrine de la Guerre juste (Paris, 1935)Google Scholar; Plater, Charles, A Primer of Peace and War (New York, 1915), p. 67 ffGoogle Scholar.

³⁷ Darby, , International Tribunals (London, 1904)Google Scholar; Marriott, J. A. R., Commonwealth or Anarchy? (New York, 1939)Google Scholar.

³⁸ Phillips, W. Alison, The Confederation of Europe (London, 1920)Google Scholar.

³⁹ By urging “powers strangers to the dispute” to offer good offices or mediation, which offer “can never be regarded by one or the other of the parties in conflict as an unfriendly act.” (Art. 3.)

⁴⁰ These obligations were specified in Arts. 11 and 12 of the League of Nations Covenant, and in Arts. 1–3 of the Argentine Anti-War Treaty (1933). They may be implied from the Pact of Paris and, for various regions, from the Washington Nine Power Treaty (1922), the Locarno Treaties (1925), and various Pan American treaties. See Wright, Q., “Effects of the League of Nations Covenant,” Am. Pol. Sci. Rev. (Nov., 1919), Vol. 13, p. 561 ff.CrossRefGoogle Scholar; “The Outlawry of War,” this Journal, Vol. 19 (1925), p. 101ff.; “Neutrality and Neutral Rights following the Pact of Paris,” Proc. Am. Soc. Int. Law, 1930, p. 81; “Collective Rights and Duties for the Enforcement of Treaty Obligations,” ibid., 1932, p. 108 ff.; “The Meaning of the Pact of Paris,” this Journal, Vol. 27 (1933), p. 57 ff. For list of anti-war obligations in treaties, see Harvard Research Draft Convention on Aggression, this Journal, Supp., Vol. 33 (1939), p. 861 ff.

⁴¹ This Journal, Vol. 10 (1916), p. 9.

⁴² Harvard Research Draft Convention on Aggression, Introductory Comment, this Journal, Supp., Vol. 33 (1939), p. 823 ff. Supra, note 40.

⁴³ The determination of the circumstances which give a state not directly involved a legal interest in a controversy is by no means clear. The Permanent Court of International Justice can decide on the question (Statute, Art. 62), if requests for intervention are made in a case before it. Solon said that all members of a community should contribute to the punishment of all wrongs suffered by their fellow members. (Plutarch, Solon, sec. 18.) Grotius supported the same dictum under natural law, and held that states were free if not obliged to be partial toward the just side in all wars. (I, c. 5, sec. 2, III, c. 17, sec. 3, Carnegie ed., pp. 164, 786.) Elihu Root suggested that in principle, while “ordinary injuries” are redressed only “at the instance of the injured person, and other persons are not deemed entitled to interfere, ” “certain flagrant wrongs, the prevalence of which would threaten the order and security of the community are deemed to be everybody’s business” (loc. cit., supra, note 41), and Secretary Hull has taken a similar position. (Statement submitted to all governments, July 16,1937.) It seems to be generally accepted that all neutrals have a legal interest in all violations of neutral rights (see Harvard Research Draft Convention on Neutrality, Art. 114, this Journal, Supp., Vol. 33 (1939), p. 788 ff.), and that all parties to a multilateral treaty have a legal interest in a violation of the treaty by any party. (Statute, Perm. Ct. Int. Justice, Art. 63; French note, March 30, 1928, on Pact of Paris, Dept. of State, Treaty for the Renunciation of War (Washington, 1933), p. 30; Wright, Q., Legal Situation in the Far East (Institute of Pacific Relations, 1939), p. 86.)Google Scholar European public law seems to have recognized certain treaty stipulations and principles to be of general interest and subject to change only with consent of all the great Powers, while others may be changed by bilateral negotiations. ( Wright, Q., op. cit., p. 86 Google Scholar; Tobin, H. J., The Termination of Multipartite Treaties (New York, 1933), p. 11 Google Scholar.)

⁴⁴ Wright, Q., “The Concept of Aggression in International Law,” this Journal , Vol. 29 (1935), p. 375 ff.Google Scholar; “The Test of Aggression in the Italo-Ethiopian War,” ibid., Vol. 30 (1936), p. 52; Harvard Research Draft Convention on Aggression, this Journal, Supp., Vol. 33 (1939), p. 823 ff.; supra, note 43.

⁴⁵ Supra, note 20.

⁴⁶ Supra, notes 1–4; infra, note 49.

⁴⁷ A state’s sociological existence depends on other factors, the operation of which will continually cause the rise of some states, the decay and death of others. (See E. M. Borchard, supra, note 26.) A system of law, however, must distinguish between acts within the legal personality, parallel to the physiological changes within an individual, and acts of other members of the community hastening these changes, comparable to assault or murder in individual relations. Thus, a state can legally lose status, or come to an end only through acts of its own municipal law or of international law, including general recognition by the community of nations, not through acts of the municipal law of another state.

⁴⁸ See Oppenheim’s useful remarks on so-called fundamental rights of states, Vol. 1, sec. 112. See also Wright, Q., “Effects of the League of Nations Covenant,” Am. Pol. Sci. Rev., Vol. 13 (1919), p. 557 CrossRefGoogle Scholar; Legal Situation in the Far East, p. 89.

⁴⁹ The argument is that by which Hobbes and Locke proved that men would not enjoy legal rights in a “state of nature.” Sovereignty in the sense of freedom to make war implies that states are in a “state of nature” and a denial of their subjection to law. See infra, note 57, and Wright, Q., “National Sovereignty and Collective Security,” Annals of American Academy of Political and Social Science, 1936, Vol. 186, p. 94 CrossRefGoogle Scholar; Brecht, Arnold, “Sovereignty,” in Speier, and Kahler, , War in Our Time (New York, 1939), p. 58 ff.Google Scholar; Ralston, Jackson H., Democracy’s International Law (1922), p. 38 ffGoogle Scholar. “Neutrality is not morally justified unless intervention in war is unlikely to promote justice or could do so only at ruinous cost to the neutral.” (Westlake, International Law, Vol. 2, p. 90.) “To identify a policy of neutrality with the interests of international peace is one of the strangest hallucinations that ever took possession of clear-headed men.” (James Lorimer, Institutes of the Law of Nations (1884), Vol. 2, p. 126.) “Neutrality in a war of principles is mere passive existence, forgetfulness of all that makes a people sacred, the negation of the common law of nations, political atheism … adhesion to the word of Cain.” (Mazzini, quoted in Bolton King, Life of Mazzini (Everyman), p. 305.) “The existence of a right to oppose acts contrary to law and to use force for the purpose when infractions are sufficiently serious is a necessary condition of the existence of an efficient international law.” (Wm. E. Hall, International Law (8th ed.), sec. 93, p. 342.) See Wright, “The Future of Neutrality,” International Conciliation, 1928, p. 360. “The doctrine of absolute impartiality in all circumstances has not struck such deep roots in international law as to remain unchallenged. It was not deduced from its principles. On the contrary, it is, like the admissibility of war, a denial of the existence of a true legal community among states.” ( Lauterpacht, H., “Neutrality and Collective Security,” Politica, Nov., 1936, p. 147 Google Scholar.)

⁵⁰ Though admitting that neutrality is “not a cure for war,” E. M. Borchard believes it “has done much to ameliorate the duration and the barbarity of war,” and “has narrowed the area of conflict, has kept a large part of the world at peace, and has been conducive to the making of sensible treaties of peace.” (“Neutrality,” Yale, L. J., Vol. 48 (1938), p. 53 Google Scholar.) A favorable attitude toward neutrality is also expressed by Phillimore, , Commentaries upon International Law, Vol. 3, p. 226 (2nd ed., 1870)Google Scholar; Holland, , Lectures on International Law (1933), p. 401 ffGoogle Scholar. See also infra, note 34. For contrary view see Beer, G. L., The English-Speaking Peoples (New York, 1917), p. 134 Google Scholar, and supra, note 49.

⁵¹ Staley, World Economy in Transition, Ch. 1.

⁵² Supra, notes 39–42.

⁵³ This Journal, Supp., Vol. 33 (1939), p. 871 ff.

⁵⁴ Supra, note 4. See also Wright, Q., Proc. Am. Soc. Int. Law, 1930, pp. 79–80 Google Scholar.

⁵⁵ Eastern Carelia Case, Perm. Ct. Int. Justice, Ser. B, No. 5; H. Lauterpacht, The Development of International Law by the Permanent Court of International Justice (London, 1934), p. 34 ff.

⁵⁶ The political consequences of the breach of some obligations may be more serious than of others, and the sources from which to determine whether there has been a breach may be more definite in some obligations than in others. These seem to be the considerations involved in the distinction between non-justiciable and justiciable disputes and between political and other treaty provisions. See Wright, Q., The Control of American Foreign Relations (New York, 1922), p. 214 Google Scholar. A dispute may be non-justiciable in the sense that no court has jurisdiction, but in substance there are no non-justiciable disputes. ( Lauterpacht, , The Function of Law in the International Community, pp. 21, 60, 435Google Scholar.)

⁵⁷ Brierly, , The Law of Nations (2nd ed., Oxford, 1936), p. 257 ff.Google Scholar; Wright, Q., “The Meaning of the Pact of Paris,” this Journal , Vol. 27 (1933), pp. 45–46 Google Scholar; Control of American Foreign Relations, pp. 209–215. “The inconveniences of the state of nature must certainly be great where men may be judges in their own case; since it is easy to be imagined, that he who was so unjust as to do his brother an injury, will scarce be so just as to condemn himself for it. … It is often asked … ‘where are, or ever were there any men in such a state of nature? ’ To which it may suffice as an answer at present, that since all princes and rulers of independent governments, all through the world, are in a state of nature, it is plain the world never was, nor ever will be, without numbers of men in that state.” ( Locke, John, Of Civil Government (1690), II, c. 2.)Google Scholar Lauterpacht (op. cit., p. 429) points out that the claim of a state to judge its own case in an international controversy is necessarily a claim to judge the other party to that controversy, in violation of the rule of sovereigns’ immunities.

⁵⁸ This may not have been true in the less interdependent world of the 17th century, and Grotius suggested that when the justice of a war could not be determined, third states should be impartial. (II, c. 17.) Application of this policy, the inadequacy of the criteria and procedures for determining the justice of wars, and the befogging of the criteria which existed by the doctrine of “invincible ignorance,” which suggested that a war might be just on both sides, contributed to the rise of the idea of neutrality. Jessup, and Deák, , op. cit., pp. 8–10 Google Scholar; Butler, and Maccoby, , op. cit., p. 114 Google Scholar; Ballis, , op. cit., pp. 86, 98, 102–104Google Scholar.

⁵⁹ Oppenheim writes, the meaning of “common consent” is not “a question of theory but of fact only. It is a matter of observation and appreciation, and not of logical and mathematical decision. Just as the well known question, How many grains make a heap?” (Vol. 1, sec. 11.) A. Lawrence Lowell writes, in order for an “opinion” to be “public,” “a majority is not enough, and unanimity is not required, but the opinion must be such that while the minority may not share it, they feel bound, by conviction, not by fear, to accept it.” (Public Opinion and Popular Government (New York, 1914), p. 15.) The Anglo-Saxon practice of establishing a king indicates the use of general recognition in an imperfectly organized society. “At no time during the Anglo-Saxon period was there a body of men that was conscious of any constitutional right to elect the king. There might be a somewhat formal acceptance, by the great men, of him whom heredity or conquest had pointed out as their lord and leader; and such warriors and populace as had naturally gathered at the time and place at which a new sovereign was to be proclaimed might show their approval by acclamation. But these men, great and small, were acting in a purely personal capacity, not as standing for the nation. However, no presumptive king could feel at all sure of his throne until he had received this recognition.” ( White, A. B., The Making of the English Constitution (New York, 1908), pp. 51–52 Google Scholar, citing Chadwick, Studies on Anglo-Saxon Institutions, pp. 357–366.)

⁶⁰ Wright, Q., “The Power to Declare Neutrality under American Law,” this Journal , Vol. 34 (1940), p. 303 ffGoogle Scholar.

⁶¹ In re Cooper (1892), 143 U. S. 472, 502; Jones v. United States (1890), 137 U. S. 202, 212; Moore’s, Digest, Vol. 1, pp. 246 ff., 743 ff.Google Scholar; Wright, Q., Control of American Foreign Relations, p. 172 ff.Google Scholar

⁶² In the Tinoco Arbitration (Great Britain and Costa Rica, 1923, this Journal, Vol. 18 (1924), p. 147), the tribunal held that recognition by various governments was only of evidential value in proving the existence of a general de facto government. For practice in application of the “non-recognition doctrine,” see Wright, Q., Legal Situation in the Far East, p. 3 ff.Google Scholar, and discussions by Briggs, Padelford, Wright, et al., Proceedings, American Society of International Law, 1940.

⁶³ See Wright, Q., “The Stimson Note of Jan. 7, 1932,” this Journal , Vol. 26 (1932), p. 342 ffGoogle Scholar.; “The Legal Foundations of the Stimson Doctrine,” Pacific Affairs, Vol. 8 (1935), p. 439 ff.; Sir John Fischer Williams, “The New Doctrine of Recognition,” Grotius Society, Proceedings, 1932; Malbone W. Graham, The League of Nations and the Recognition of States (University of California Press, 1933); In Quest of a Law of Recognition (idem).

⁶⁴ H. Lauterpacht and E. M. Borchardon the “Non-Recognition Doctrine,” in Wright, Q. et al., Legal Situation in the Far East (Institute of Pacific Relations, 1940)Google Scholar. Graham (In Quest of a Law of Recognition, p. 22), contends that “the system of collective recognition of states, marking a stage upward from the chaos of individual caprice to the cosmos of collaborative effort, is here to stay, for it is indissociable from the nature and indisseverable from the functioning of organized international society.”

⁶⁵ Wright, Q., “When Does War Exist?” this Journal , Vol. 26 (1932), p. 362 ffGoogle Scholar.

⁶⁶ Wright, Q., “The Power to Declare Neutrality under American Law,” ibid., Vol. 34 (1940), p. 306 Google Scholar; Comments, Proc. Am. Soc. Int. Law, 1938, pp. 122–124, 146, 150. The national documents recording such recognitions have been collected in Deák and Jessup, A Collection of Neutrality Laws, Regulations and Treaties of Various Countries (2 vols., Washington, 1939), and World Peace Foundation, The Neutrality of the United States, Laws, Proclamations, etc. (1940). Certain of the international documents have been collected in the appendices to Q. Wright (ed.), Neutrality and Collective Security (Chicago, 1936).

⁶⁷ Wright, Q., “The Concept of Aggression in International Law,” this Journal , Vol. 29 (1935), p. 373 Google Scholar.

⁶⁸ Wright, Q., The Existing Legal Situation in the Far East, pp. 3–5, 99–100Google Scholar; “The Denunciation of Treaty Violators,” this Journal, Vol. 32 (1938), p. 527.

⁶⁹ Wright, Q., “The Test of Aggression in the Italo-Ethiopian War,” ibid., Vol. 30 (1936), p. 45 ffGoogle Scholar. Certain official references by the United States to the Pact of Paris suggested that Italy had violated that instrument. See Wright, Q., “The Denunciation of Treaty Violators,” ibid., Vol. 32 (1938), p. 527 Google Scholar.

⁷⁰ Padelford, Norman J., “International Law and the Spanish Civil War”; “The International Non-Intervention Agreement and the Spanish Civil War,” ibid., Vol. 31 (1937), pp. 226 ff., 578 ffGoogle Scholar.

⁷¹ Wright, Q., “The Rhineland Occupation and the Enforcement of Treaties,” ibid., Vol. 30 (1936), p. 487 ffGoogle Scholar.

⁷² Wright, Q., “The Munich Settlement and International Law,” ibid., Vol. 33 (1939), p. 12 ff.Google Scholar; Dept. of State Press Releases, March 25,1939, pp. 219–221.

⁷³ Dept. of State Bulletin, Sept. 9, 1939, p. 203 ff.; Sept. 16, 1939, p. 246 ff.; Nov. 4, 1939, p. 453 ff.

⁷⁴ Ibid., Oct. 7, 1939, p. 327.

⁷⁵ Ibid., April 27,1940, p. 429; May 11,1940, p. 489.

⁷⁶ Ibid., April 13, 1940, p. 373; May 11, 1940, p. 493; President Roosevelt’s address, June 10,1940.

⁷⁷ Press reports, June 7, 1940.

⁷⁸ Dept. of State Bulletin, Dec. 2, 1939, p. 609; Jan. 13, 1940, pp. 19–20; Jan. 20, 1940, p. 55; March 16, 1940, p. 295.

⁷⁹ Wright, Q., “The Power to Declare Neutrality under American Law,” this Journal , Vol. 34 (1940), p. 302 ffGoogle Scholar.

⁸⁰ Wilson, G. G., “War Declared and the Use of Force,” and discussion following, Proc. Am. Soc. Int. Law, 1938, p. 106 ffGoogle Scholar.

⁸¹ Grotius, , op. cit., III, c. 17, sec. 3 (Carnegie ed., p. 786)Google Scholar; Vattel, , op. cit., III, c. 7, sec. 106 (Carnegie ed., p. 268)Google Scholar.

⁸² See Frederick R. Bryson, The Sixteenth Century Italian Duel (Chicago, 1938). Ecclesiastical Councils began to prohibit dueling as early as the 12th century (p. xxvi), but did not do so effectively until the Council of Trent, 1563 (p. 118). Legislation prohibiting dueling was enacted in Venice, Naples, the Empire, and France in the 16th century (pp. 103, 131), but was not adequately enforced for many years. Trial by battle was not formally abolished in England until 1819. (59 Geo. III, c. 46, following case of Ashford v. Thornton, 1 Barn, and Aid. 405, in which the legality of such a trial was recognized.)

⁸³ “There have been periods in the history of nations when in the absence of legal tribunals, in the absence of an organized police force, the sense of mutual obligation, which lies at the root of every legal system, has been so strongly developed that an act of violence done to the person or property of one member of the community has been resented as a wrong to all its members. In such a case neutrality is impossible. It is a disgrace, a crime. The hand of every man is against the wrongdoer. He becomes an outlaw. No one may feed him or succour him or assist him to escape. Everyone must join in his arrest and punishment. … To this strong sense of mutual obligation we owed in this country what is known as the ‘hue and cry,’ long regarded as an effective deterrent against crimes of violence. From it arose on the other side of the Atlantic that system of communal justice which, however rough and ready, contributed so largely to the establishment of law and order in the Western part of the American Continent. From it legal tribunals and an organized police force will readily develop. Without it no reign of law is possible.” (Lord Parker of Waddington in House of Lords, March 19,1918, quoted in SirZimmern, Alfred, The League of Nations and the Rule of Law (London, 1936), p. 175 Google Scholar.)

⁸⁴ Oppenheim, op. cit., Vol. 1, secs. 9, 20; Borchard, and Lage, , op. cit., pp. 1–3 Google Scholar; Borcbard, , “Neutrality,” Yale, J. L., Vol. 48 (1938), p. 39 Google Scholar. Lauterpacht examines the doctrine exhaustively and rejects it. (The Function of Law in the International Community, p. 407 ff.)

⁸⁵ “Law is a body of rules for human conduct within a community which by common consent of the community shall be enforced by external power.” (Oppenheim, op. cit., Vol. 1, sec. 5.) The attempt to apply this definition to international law, conceived as a law enforced only by “self-help and intervention” (ibid., sec. 9), is not entirely satisfactory, as Oppenheim admits when he writes: “By the establishment of the League of Nations there is now more reason to hope than in former times, that the smaller and weaker States will not be at the mercy of the larger and stronger Powers, in case of a conflict between their interests.” (Ibid.) The necessity of positing a society of states (Civitas Maxima) superior to the states, as the authority for the law of nations was perceived by Grotius (Proleg., sec. 17) and Wolff (Preface, and Proleg., sec. 7, Carnegie ed., pp. 6, 11), but not by Vattel (Preface, Carnegie ed., p. 9 a). See also Westlake, Chapters on the Principles of International Law (Cambridge, 1894), pp. 2–4; J. L. Kunz, “The Theory of International Law,” Proc. Am. Soc. Int. Law, 1938, pp. 29–30.

⁸⁶ Supra, note 57.

^86a E. M. Borchard insists that international law is obligatory, although it operates within a very narrow field and has the special character of being a law among equals which cannot be enforced by the society. This suggests that it is not obligatory in the legal sense. Proc. Am. Soc. Int. Law, 1938, p. 34 ff.

⁸⁷ Borchard, , “Neutrality,” Yale, J. L., Vol. 48 (1938), p. 53 Google Scholar.

⁸⁸ This factor has accounted for the localization of wars in primitive times and during most of history. “No person in his senses would dream of enquiring whether a prince ought to assume an obligation to interfere in a war waged by very distant princes with whom he has no connection or intercourse whatsoever; for instance whether in a war between the Chinese and the Japanese the Emperor of Morocco is in justice bound to intervene as a party.” (Galliani, 1782, quoted by Lauterpacht, , “Neutrality and Collective Security,” Politica, 1936, p. 152 Google Scholar.)

⁸⁹ The reversion from collective security to neutrality was labored for by the dictators before undertaking their aggressions and undoubtedly proved of great assistance to Hitler. ( Hoden, Marcel, “Europe without the League,” Foreign Affairs, Oct., 1939, Vol. 18, p. 13 ff.CrossRefGoogle Scholar)

⁹⁰ Defense of neutral rights was the formal, if not the substantial, reason for American entry into war in 1798, 1812, and 1917.

⁹¹ Wright, Q., The Causes of War and the Conditions of Peace (London, 1935), p. 114 Google Scholar.

⁹² Charles Warren, “Congress and Neutrality,” in Wright, Q. (ed.), Neutrality and Collective Security (Chicago, 1936), pp. 115, 148Google Scholar. “The whole history of neutrality, and in particular the history of neutrality during the World War, would indicate that neutrality is a makeshift, based upon expediency, made possible only by the unstable condition of international society.” (A. Vandenbosch, The Neutrality of the Netherlands During the World War (Grand Rapids, Mich., 1927), p. 315.) “Legislation having as its object to keep a state out of war must tend to be opportunist and to vary with the fortunes of War or with the effectiveness of the threats and the propaganda put forth by the respective belligerents.” ( Wilson, G. G., this Journal , Vol. 34 (1940), p. 89 Google Scholar.)

⁹³ Wright, Q., “Rights and Duties under International Law as affected by the United States Neutrality Law and the Resolutions of Panama,” this Journal , Vol. 34 (1940), p. 238 ffGoogle Scholar.

⁹⁴ “So long as we refuse to cooperate with other nations in trying to prevent the happening of a war, we are going to remain in a distinctly uncomfortable and precarious condition. In a neighborhood of highly inflammable buildings, to rely on the supposedly fireproof quality of one’s own house, and to make no effort to prevent a conflagration starting, is a dangerous means of trying to ‘play safe.’” ( Warren, , loc. cit., p. 153 Google Scholar.) “Once we admit the rightfulness of war and the power of combatants to lay down their own rules of action to control neutrals, we cut from under us any ground of complaint of casual invasions of the territory of neutrals, such invasions being merely a particular form of disregard for the rights of others. We should not complain of the form of the act but of the fundamental wrongful conception.” ( Ralston, , op. cit., p. 28 Google Scholar.)

⁹⁵ Van Vollenhoven thus berates the destruction of the Grotian system by 18th-century writers: “At this pregnant moment (the age of the enlightenment) at this moment which will have to choose between the prosaic, helpless Primitive Law of Nations and Grotius’s sacred doctrine of duties; the most fatal thing occurs that could possibly occur; a deed of treachery. … Vattel may possibly have been a good man in the opinion of his relations and domestic servants; but he gave a Judas-kiss to Grotius’s system. … According to Grotius, the criminal state may be punished by the others. According to Vattel even the country invaded, foaming at the mouth with anger, may not judge of the assaulter of its territory. ‘Nous ne sommes point reçus à nous plaindre de lui, comme d’un infracteur du Droit des Gens.’ (III, c. 12, sec. 190.) How could the learned and discerning Grotius (he elsewhere observes) err so much as to ascribe even to a neutral nation a right to judge of the conduct of a sovereign state?” (The Three Stages in the Evolution of the Law of Nations (The Hague, 1919), pp. 26–29.) See also Van Vollenhoven, The Law of Peace (London, 1936); Luigi Sturzo, The International Community and the Right of War (New York, 1930); Ralston, op. cit., Ch. 1. Disagreeing with SirZimmem’s, Alfred “conclusion” that “positive international law so called, has no claim to the name of law” (International Affairs, Vol. 17 (1938), p. 3)Google Scholar, Norman Mackenzie points out “that the international community is primitive and heterogeneous; that there is no central authority or organized group exercising control in it; that its procedural facilities are definitely limited; that resort to the extra-legal procedure of violence and war, as an option or substitute for law and legal procedure, is still possible and proper; that much, if not all, of the popular criticism directed at international law arises out of this fact, and out of the practice of international lawyers claiming that such violent procedure is within the field of international law.” (Proc. Am. Soc. Int. Law, 1938, pp. 7, 22–23.)

⁹⁶ “Sir Henry Maine, in his volume on international law, dismisses Austin’s criticisms on that system as ‘very interesting and quite innocuous,’ and rather scouts the supposition ‘that Austin had intended to diminish, and had succeeded in diminishing, the dignity or imperative force of international law.’ I am altogether unable to accept this cheerful view. 1 think it may easily be shown that at one time Austin’s relegation of international law to the sphere of morality had a pronounced effect even upon legal decisions in England, as in the case of the Franconia. (Queen v. Keyn, [1876] 2 Ex. Div. 63.)” Moore, J. B., “Law and Organization,” Am. Pol. Sci. Rev., Vol. 9 (1915), p. 4 CrossRefGoogle Scholar, reprinted in International Law and Some Current Illusions (New York, 1924), p. 293. The continued prevalence of the Austinian conception of international law is indicated by several papers by Sir Alfred Zimmern and other evidence adduced by Norman Mackenzie. Supra, note 95.

⁹⁷ See Ellery Stowell, Intervention in International Law (Washington, 1921).

⁹⁸ Zimmern, , The League of Nations and the Rule of Law, 1919–1935 (London, 1936), p. 87 ff.Google Scholar; “Economic Aspects of Collective Security,” in Wright, Q., Neutrality and Collective Security, p. 34 Google Scholar; Callendar, , The Naval Side of British History (1924), p. 237 Google Scholar; Richmond, Admiral Sir Herbert, National Policy and Naval Strength (London, 1928)Google Scholar.

⁹⁹ Cambridge History of British Foreign Policy; Stowell, Intervention in International Law.

¹⁰⁰ “From the point of view of the dominions the important point to note is the evolution from a position of dependence to one of freedom from control. These great communities have all the time been climbing a ladder. Now they have reached the top; but the climbing process is common to all the communities which form part of the Empire. Each of them, whether the population is predominantly white or predominantly colored, is gradually, as it develops in strength and capacity, passing upward from the stage in which the community is wholly subject to control exercised from London to that in which the measure of control diminishes, and so on to that in which the control has ceased entirely. The dominions of today were but crown colonies in the past. The crown colonies of today will be dominions in days to come. There is nothing static about the British Empire.” ( SirHurst, Cecil J. B., Great Britain and the Dominions (Chicago, 1928), p. 12 Google Scholar.)

¹⁰¹ Zimmern, , The League of Nations and the Rule of Law, pp. 72–86 Google Scholar.

¹⁰² Supra, note 98.

¹⁰³ Fisk, G. M., International Commercial Policies (New York, 1915), pp. 39 ff., 237 ff.Google Scholar; Clive, Day, A History of Commerce (London, 1907), pp. 348 ff., 365 ffGoogle Scholar.

¹⁰⁴ “In the last century you had a peace system which was the outgrowth of British experience during the Napoleonic and other previous wars (and) which prevented world war for a century. It was based on the simple truth that if the British people made their islands an invulnerable base by maintaining an invincible fleet with naval bases all over the world which would enable it to sink or drive into port any hostile fleet anywhere there would be no serious risk of world war. … The Pax Britannica depended on … a Britain which was liberal, and therefore used its power in such a way that it did not challenge the vital interests of other powers.” (Lord Lothian, International Affairs, Vol. 18 (1939), pp. 331–332, quoted by Rushton Coulborn, in Beneš, et al., International Security (Chicago, 1939), p. 105 Google Scholar.)

¹⁰⁵ See Bernard Brodie, Major Naval Inventions and their Consequences in International Politics, 1814–1918 (MS. Dissertation, University of Chicago Library, 1940).

¹⁰⁶ “The British Empire as a unit is a cumbersome machine. In international relations it can only work smoothly and efficiently if its internal machinery for consultation and for exchanging information is satisfactory.” ( Hurst, , op. cit., p. 97 Google Scholar.) See also Zimmern, , op. cit., p. 483 ffGoogle Scholar.

¹⁰⁷ Schuman, Frederick, International Politics (New York, 1937), p. 64 ffGoogle Scholar.

¹⁰⁸ Zimmern, , op. cit., p. 90 ffGoogle Scholar.

¹⁰⁹ Lippmann, Walter, The Good Society (New York, 1937)Google Scholar; Zimmern, , in Wright, Q. (ed.), Neutrality and Collective Security, p. 30 ffGoogle Scholar.

¹¹⁰ Staley, Eugene, World Economy in Transition (New York, 1939)Google Scholar; Rappard, W. E., The Quest for Peace (Cambridge, Mass., 1940)Google Scholar; Streit, Clarence, Union Now (New York, 1939)Google Scholar.

¹¹¹ “The attempt to form empires or leagues of nations on the basis of inequality and the bondage and oppression of the smaller national units has failed, and the world has to be done all over again on a new basis and an enormous scale. … Europe is being liquidated, and the league of nations must be the heir to this great estate. … Surely the only statesmanlike course is to make the league of nations the reversionary in the broadest sense of these empires. In this debacle of the old Europe the league of nations is no longer an outsider or stranger, but the natural master of the house. It becomes naturally and obviously the solvent for a problem which no other means will solve.” ( Smuts, Jan C., Memorandum, Dec. 16, 1918, reprinted in The Nation, Feb. 8, 1919, Vol. 118, p. 226 Google Scholar.) “The effort of British policy in the nineteenth century had been, if possible, to prevent war and, when this was not possible, to localize it. The war of 1914 was a contradiction of this standing principle. It was the demonstration that, as international politics had developed since the turn of the century, a war between Great Powers could no longer be compartmentalized. It was a break-through, in the grand style, of the forces of disruption, carrying away in their path barriers that had held for a hundred years. Could peace be established on an equally world-wide basis, with a sweep as majestic and all-embracing? That was the problem set for statesmanship by the events of 1914.” ( Zimmern, , op. cit., pp. 92–93 Google Scholar.)

¹¹² Zimmern, , op. cit., p. 480 ff.Google Scholar; Beneš, , Feiler, and Coulborn, , International Security (Chicago, 1939)Google Scholar.

¹¹³ See Lauterpacht, , “Neutrality and Collective Security,” Politica, Nov., 1936 Google Scholar; Ralston, J. H., op. cit. Google Scholar; Van Vollenhoven, The Law of Peace.