INTRODUCTION.

SOME men may think this a strangely chosen time to republish a nineteenth century classic of international law. We are in the midst of a general war in which the validity of all rule, convention and usage appears, at first sight, to be shaken to its foundation. The rulers of the Central Empires and the leaders of their armies have not only acted as if the laws and customs of civilized warfare, the faith of treaties, and the dictates of the commonest humanity, were subordinate to military convenience; they have not been ashamed to assert this damnable doctrine (for so the publicists of all other nations deem it) as a principle of deliberate conduct. True, they talk of necessity, but in the sense that the convenience of military advantage amounts to necessity whenever the officer commanding on the spot is of that opinion. Yet these same innovators are eager to seize any pretext for charging their adversaries with some breach, as often as not purely fictitious, of the rules from which they claim unlimited dispensing power for themselves. We have now learnt the simple and comprehensive reason for this attitude; it would seem incredible if it were not established by abundant German testimony. In the fixed belief of the German leaders and most of their people, Germany is not a country having equal

rights among equals, but the home of a superior race entitled to impose its own policy and methods on the rest of the world by the use of any requisite degree of force, and not bound to treat men of inferior races as human beings unless and until they behave as docile subjects. Germany has rights in virtue of a paramount mission to Prussianize the world. Germany's allies have rights because they are her allies. Neutrals have just what Germany chooses to allow them, and enemies have none. As for the ethical relationship' of German colonists to subject races, it is defined by the egregious Dr. Dernburg as an inflexible attitude.' Such is the law laid down by our new judges of Berlin. Until we have accomplished the task of making it impossible for them to force it on the world, is it worth while to go on repeating the formulas we thought sacred even in war time? If a colonel of Ulans taken at random, drunk or sober, is to be free to overrule everything hitherto accepted, to take private owners' goods against receipts in the name of Captain Koepenick, and to shoot the owners themselves on bare suspicion that some other man has fired on a German trooper, why trouble ourselves to pore over authorities at all? If treaties are scraps of paper, learned books and considered judgments are mere scraps of paper too.

But on reflection it seems that, when great Powers commit themselves to principles of anarchic tyranny, that is the very reason why those who still believe in the rule of law should reassert and republish their faith as the most dignified form of protest, and in the long run not the least effectual. Law does not cease to exist merely because it is broken, or even because, for a time, it may be broken on a large scale; neither does the

No

escape of some criminals abolish penal justice. country is so well ordered that offences are not frequently committed, or that wilful and concerted resistance to the law never occurs. Concerning the law of nations, the wonder is not that it should be broken, but that, down to the present war, it should have been fairly well observed by most nations and ostensibly respected by all, in spite of lacking any defined sanction. What is new and shocking in the present situation is the open defiance of public law, the shameless assertion of mere arbitrary power under the sophistical pretence that the State, having no earthly superior, is subject to no moral rules: a position, be it remarked, far beyond anything that even Hobbes dared to maintain. Such defiance can be met, in the first instance, only by the one argument which the rebel Powers acknowledge, that of manifestly superior force. But there will as surely be a reaction in favour of law and order in the affairs of Europe as there has been, after periods of civil turmoil, in the affairs of particular nations; and then we shall do well to give some care to considering, with a view to better settlement for the future, the principles accepted and formulated by the wisdom of cool heads in bygone days of

peace.

In Wheaton's Elements we have an exposition of such principles delivered on a more spacious historical scene and with more wealth of detailed illustration than can be found in most modern text-books. Wheaton stands for the opinions received or allowed among the best instructed publicists during the period following the Congress of Vienna, sometimes called the Forty Years' Peace; a period in the course of which there were many

W.

d

military operations, and in the latter part of it formidable civil wars, but never a state of actual war between any two of the greater European Powers. It was a period favourable to disinterested treatment of international problems by learned writers, and especially favourable to their impartial treatment by Americans, who still accepted it as an axiom that their country was not to be involved in European controversies. For the purpose of comparing the former rules with recent variations, and judging how far any new departure is to be censured as lawless or tolerated as an endeavour to follow the spirit of the law when novel conditions have made literal obedience impracticable, it is plainly the safer course to look to the statements made by approved writers before the present questions arose. There is perhaps even stronger political than scientific justification for Dr. Phillipson's decision to retain Wheaton's references to the earlier treatises which in Wheaton's own time held authoritative rank.

It is needless to dwell here on Wheaton's general merits. They are, to begin with, those of a good scholarly lawyer of the first generation of American independence; but his combination of forensic, judicial and diplomatic experience gave him almost unique advantages in handling this subject. The time may come when it will be a seemly and pious work for some learned American to reprint Wheaton's text as a classic, with no more annotation than will serve to prevent it from actively misleading a reader who has not a current modern treatise at his elbow. But that time is not yet, and while the book is still in use as a practical manual Dr. Phillipson's method of frankly rewriting obsolete or inadequate sections appears the best.

Some readers may be discontented at not being able, in this edition, to see at a glance whether they have under their eyes Wheaton's own words or an editorial supplement. To this it may be answered that the dates and editorship of former issues are given in a note opposite the title-page, and with that aid it is no great feat of legal or literary discernment to make out to what recension any important passage belongs. Besides, the earlier editions have not ceased to be accessible to those who may be curious in such matters. The only alternative, as Dr. Phillipson has indicated, would have been to preserve or indeed multiply typographical distinctions which, for the reader who wants information and not literary history, are merely irritating. Still less is apology needed for the text or notes reflecting the confused and transitory state of present affairs. One footnote added, it seems, at the last moment, suggests an impending development of examples on the point of recalling ambassadors which will quite overshadow the petty tragi-comedy of Lord Sackville's case. At the time of passing these lines for the press there has arisen a curious and seemingly novel case as to the position of consular agents of one belligerent party, in territory occupied by but not belonging to the adverse party, who have abused their official position to promote hostile operations. The contention that in such circumstances they are to be exempt from even the mildest forms of military interference, or have an indefeasible claim to remain at their posts, appears at least adventurous.

After the war far-reaching measures will be needed to restore and maintain the public law of Europe. I venture to think they will be not less but more thorough than any one, as yet, is in a position to forecast, and to