ancestors and will have taken a great stride towards the solution of the problem of how he with his physical weaknesses and his mental strengths shall live in communities in peace and ordered freedom one with the other.

Our nations are co-trustees for humanity that the theory and practice of democracy shall not suffer distortion or diminution in spite of avalanches of assaults loosed upon it by its enemies, by all who desire to benefit humanity through some great idea or incalculable good, by all who as individuals seek for themselves privileges over their fellows and deny the equality of man before the law.

But let us also remember that in a real democracy the law merely marks the line at which society must forcibly punish to save itself from disintegration, and that democratically made laws can never hope to set the standard of life at which citizens must aim. Each must find his star within the recesses of his own being, for it is the great strength of the democratic practice of government that it sets no bounds to upward movement, it lays down no code of morals, it guarantees freedom to each though it says sternly to the wreckers: "Transgress and you will be punished." The spring of the upward movement in democracy is in religion, not in law, and that must ever be, for "The children of this world are wiser in their generation than the children of light."

THE FUTURE OF INTERNATIONAL LAW.

BY

VISCOUNT CAVE,

LORD JUSTICE OF APPEAL.

There are no questions which more deeply concern our race than these, what in days to come are to be the precepts by which the dread ordeal of war shall, if possible, be avoided, or (if that be impossible) shall be regulated? By what sanctions are those precepts to be guarded and enforced? We have to look this matter in the face and to learn (if it may be) where in truth we stand and what action we can and ought to take. No sentiment, no rhetoric, no effusive and nebulous talk about humanity or progress, is worth a row of pins in that hard school. We had talk enough before 1914; and it ended in the shattering of the forts of Liége, the desperate wrestle on the Marne, the long agony of the trenches, and the death grip at Verdun and on the Hindenburg line.

Let us be wise now and sit down and think things out. For such a task what instrument could be more suitable than an assembly representative of our profession? A barrister has, or ought to have, a cool head and equable temper, the habit of reasoning fairly and of seeing all sides. He has, or should have, that concentration of thought by which alone a sound conclusion is reached, and that clarity of speech by which it can be made plain to others. And lastly, the Bar all the world over is solid for order, for freedom and for peace.

Where then today stands international law,-the code of the nations? Its growth, which is a matter of a few centuries only,and during that time it has suffered more than one retardation,reminds us somewhat of the growth of individual or municipal law. That law too had its beginnings and its stages of growth. The lawlessness of uncivilized man was checked first by the coercion of parent or master or priest, and then by the discipline of the community through its magistracy and police; and it is only in its later stages that the power of the law is reinforced by the sanction

of the moral code. In the same way nations were, until lately, frankly and brutally lawless; and some of them even now are hardly at all fettered by any moral rule. Apply to private life the mortality which in their conquests animated Alexander the Great, Pompey, Timur or Napoleon, and you will fill the gaols; and in certain modern phrases as to the "mailed fist," the "will to power," and the aspiration to "world empire," you will find, if you analyze them, the same sordid selfishness which in the individual leads to the penitentiary or the scaffold.

As to the primitive man killing and robbery were only a matter of expediency or opportunity, so is a war of conquest to a barbarous or depraved nation; and only the growth of what we call international law,—that jus commune which (as Grotius says) " is a force in regard to war and in war," makes for a better world. Its beginnings are a matter of recent history. Its precepts are first found in treaties between individual nations, differing in detail but tending toward similar ends, and crystallizing after a while in that which is rightly called a law, though a law of imperfect obligation. This happy result was largely due to the reasoning and influence of the great jurists, Grotius (whose anniversary you joined in commemorating at the Hague only a short time before the war), Vattel, Binkershoek and your Wheaton. Then there are the decisions of the judges in war time. The judgments of Lord Stowell in the Napoleonic wars and of the American judges in the Civil War are a mine of learning and of good sense, which in recent years has been fully explored in our prize courts; and it may be that a like credit will be given in the future to the decisions in our courts of the late Sir Samuel Evans and of Lord Sterndale and the opinions of the Judicial Committee of the Privy Council as set out in the judgments of Lord Parker and Lord Sumner. The opinions of text writers and the decisions of the tribunals, which may be said to form the common law of the subject, have been supplemented by International Conventions, such as those of Berne on the treatment of the wounded and of prisoners of war, and those of the Hague on maritime law and the rights of neutrals; and behind all stands the force of justice and humanity which in most countries has fostered the growth of this part of our jurisprudence.

Force,

What, then, are the sanctions of international law? or the fear of retaliation, the moral compulsion of contractual obligations, respect for the opinion of the world, the sense of what is right. From this enumeration it is at once evident that there is one sanction missing, namely, a tribunal with the power to decide disputes and (if it may be) to enforce its decrees; and on this point I shall have something to say a little later.

But let me first ask, how have the international rulers and conventions fared during the recent conflict, when in the desperate struggle to take or save life so much was thrown aside? How have they stood the acid test of war? As to this I have had some means of forming an opinion, for I was not only a law officer of the crown during a critical part of the war, but I was also at different times chairman, first of the Contraband Committee, and then of the Committee on Prisoners of War; and I am disposed to say that international law fared worse indeed than the optimists hoped, but better than the pessimists feared.

There were indeed many defections, many war crimes, even on the part of nations claiming to be civilized. I think the worst infringement of the law of nations, and I say this not for the purpose of girding at a beaten enemy, but because it should always be on record,-the greatest war crime of all was the German submarine campaign. A belligerent vessel has no right to sink a neutral vessel. She has no right to sink an enemy merchant vessel unless it has been ascertained by search that she carries contraband and it is impossible to bring her to port, and not even then until the safety of all lives on board has been assured. She has no right to sink a hospital ship at all, and to drown wounded men, nurses and doctors. And yet German submarines did all these things. So on land the written and signed conventions as to the treatment of wounded combatants and prisoners of war were violated. Wounded men were in some instances maltreated by civilians and even (though this was rare) by doctors and nurses. Prisoners of war were constantly kept in the fighting zone and forced (contrary to the express terms of the conventions) to dig trenches and carry munitions of war. Many of them were vilely treated in the prison camps in Germany. I say nothing of the Turk, who in this war has forfeited forever his claim (never well established) to fight like a gentleman. And yet, in spite of

failure here, and treachery there, the rules of international law had real value and authority. Our enemies, when they thought they had a grievance, appealed to those rules. We relied on them. time after time, and often with effect. Even countries which infringed the rules paid them the homage of an attempt to show that they were being observed. Indeed, it is not too much to say that, if the submarine campaign be excluded, our war experience affords an argument for and not against the maintenance and development of that branch of our jurisprudence.

How then can it be strengthened and developed? What of its future? And here let me say that I am in no way concerned today with a question upon which (as I gather) Americans are not at this moment in perfect harmony,-I mean the League of Nations. Let there be no mistake,-I am for the League. But I know that your Association takes no part in that controversy, and it would ill become me as a guest to discuss it at your meeting. But, leaving that question aside, I think there are methods by which the principles of international law may be elucidated and its sanctions increased.

First, then, I attach great value to the firm and consistent condemnation by enlightened public opinion of all infringements of that law. The submarine outrages brought, thank God! their own nemesis. They had their share in bringing the United States into the war. No one, perhaps not even Admiral Von Tirpitz, now defends them; and the retaliatory orders by which we countered that campaign are universally held to have been justified. World opinion has great weight. Let it be frankly and clearly expressed whenever an opportunity occurs, and it will form a strong barrier against similar attempts in the future.

Secondly, it is surely time that all civilized nations should combine to set up a Court of International Law; and the presence at the recent conference at the Hague of an American jurist of world-wide reputation, Mr. Elihu Root, is evidence that the Government of the United States takes that view. Arbitral bodies created for the occasion are well enough, but they cannot be set up without the consent of both parties to the dispute, and one of those parties may refuse. Further, the choice of the arbiter is sometimes determined, not by individual fitness, but by someone's idea as to the line of least resistance. And lastly, proposals