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Changes in the Conception of War

Published online by Cambridge University Press:  04 May 2017

Quincy Wright
Quincy Wright*
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Extract

The phrase “ outlawry of war” has come into current usage during the past few years. It has appeared in a resolution submitted to the United States Senate,1 in speeches by Presidents of the United States2 and in a draft treaty submitted by the Council of the League of Nations to its members.3 As giving focus to a widespread popular demand for the elimination of war, the phrase doubtless has propaganda value, but some of its legal implications seem to invite examination. Thus, if we are called on to “ outlaw war,” that is, applying Bouvier's definition, to put war out of the protection of the law, we must assume that war is now within the protection of the law, that it is legal to make war. In fact, in Senator Borah's resolution of February 13, 1923,4 we read in the preamble:

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Research Article
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American Journal of International Law , Volume 18 , Issue 4 , October 1924 , pp. 755 - 767
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Copyright © American Society of International Law 1924

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References

1 Submitted by Senator Borah of Idaho, Feb. 13, 1923, Sen. Res. 441, 67th Cong., 4th Sess.

2 “ If I catch the conscience of America, we'll lead the world to outlaw war.” (Candidate Harding, Sept. 4, 1920). “ Contemplating the measureless cost of war and the continuous burden of armament, all thoughtful peoples wish for real limitations of armament and would like war outlawed.” (President Harding, opening the Conference on Limitation of Armament, Nov. 12, 1921.) “ I personally should favor entering into covenants for the purpose of outlawing aggressive war by any practical means.” (President Coolidge accepting the Republican nomination for President, Aug. 14, 1924.) The Democratic party by its platform of 1924 pledged “ all its energies to the outlawry of the whole war system.”

3 The draft treaty of disarmament and security proposed by a New York committee and submitted to its members by the Council of the League of Nations heads the first chapter, “ Outlawry of Aggressive War.”International Conciliation, No. 201,August 1924, p. 343. Printed also in New York Times, June 18, 1924, and Foreign Policy Association, Pamphlet No. 28, June 1924.

4 Supra, note 1.

5 On the distinction between “ events” and “ acts,” see Holland, Jurisprudence, 11th ed., pp. 104, 105, and between lawful and unlawful acts, ibid., p. 114.

6 “ It is obvious that to know the whole extent of the advantage conferred by the enjoyment of a right is the same thing as to know what acts are infringements of it.” Holland, Jurisprudence, p. 148. On apparent infringements which prove not to be because of extraordinary circumstances, ibid., p. 149. See also Salmond, Jurisprudence, p. 219.

7 See Hall, , International Law , 7th ed., p. 49; Westlake, , International Law , 2nd ed., Vol. 1, p. 86; Hyde, , International Law , Vol. 1, pp. 346, 432.Google Scholar

8 Such acts would generally constitute “ intervention,” though some writers prefer to restrict that term to such acts as are not justified by special circumstances. (See Hyde, op. cit., Vol. 1, pp. 116-117.) The injured party has seldom been able to collect a claim arising from intervention, because the intervenor is generally more powerful and consequently in a position to insist that special circumstances justified the intervention, and to refuse submission of the propriety of his action to impartial decision. Diplomatic correspondence, however, clearly indicates general acceptance of the view that reparation would be due unless special circumstances justify the act. See discussion of Italian occupation of Corfu in League of Nations Council, Sept. 1924, League of Nations Official Journal, Vol. 4, pp. 1277-1278; this Journal , Vol. 18, pp. 541-542; Oppenheim, International Law, 3rd ed., Vol. 1, sec. 155; Fenwick, International Law, p. 161. The Colombian claim against the United States arising out of the intervention in Panama in 1903 was presumably liquidated by the payment of $25,000,000 in 1922, although the treaty of 1914, as finally ratified in 1922, made no express recognition of the validity of that claim. Where the two states are comparatively equal in power, the victim of an intervention generally considers the act as the inauguration of a state of war, but if he does not, as has sometimes happened where the act of force is of slight magnitude, an apology or other amend has always been demanded. (See several cases discussed by Oppenheim, op. cit., Vol. 1, sec. 163). Third states whose citizens are incidentally injured by an intervention have sometimes presented claims to the intervenor, but it has been held that such claims lie against the territorial sovereign. See Secretary of State Marcy's note in reply to the French claims arising from the Greytown bombardment of 1852, Moore, , International Law Digest , Vol. 6, p. 927.Google Scholar

9 Hearings before Committee on Foreign Relations, U. S. Senate, 1919, 66th Cong., 1st sess. (Sen. Doc. 106, pp. 329, 336.) In reply to Germany's protest against Art. 227 of the Treaty of Versailles in which the “ Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offense against international morality and the sanctity of treaties,” the Allies said: “ The present treaty is intended to mark a departure from the tradition and practices of earlier settlements which have been singularly inadequate in preventing the renewal of war” . Note June 16,1919, 66th Cong.,1st se. (Sen. Doc. 149, p. 126.) For German protest see ibid., p. 94. See also Wright, Am. Pol. Sci. Rev., Vol. 13, pp. 120 et seq., Minn. Law Rev., Vol. 5, p. 518; Garner, International Law and the World War, Vol. 2, pp. 490 et seq.

10 Infra, note 36

11 Infra, notes 28, 29.

12 Westlake, op. cit., Vol. 2, p. 3.

13 Oppenheim, op. cit., Vol. 2, p. 67.

14 Moore, , International Law and Some Current Illusions , 1924, p. 37.Google Scholar

15 Phillimore says: “ War is the exercise of the international right of action to which from the nature of the thing and the absence of any common superior tribunal nations are compelled to have recourse in order to assert and vindicate their rights.” Holland describes war as “ the litigation of nations,” op. cit., p. 348. A similar view seems to be accepted by Fenwick who says: “ States are legally entitled to resort to war as a means of redress when the necessity of doing so seems to, them warranted by the importance of the interests involved and justified by the principles of International Law as interpreted by themselves individually.” Op. cit., p. 428. These writers agree with the ancient Roman conception of war as a legal procedure, which was also adopted by the early writers on International Law. Infra, note 46. The transition from this doctrine to the one held by rfiost modem writers is illustrated by Hall, who writes: “ International Law recognizes war as a permitted mode of giving effect to its decisions.” Consequently “ it ought to determine the causes for which war can be justly undertaken,” and “ to discourage the commission of wrongs by investing a state seeking redress with special rights and by subjecting a wrongdoer to special liabilities,” but in fact it is able to do neither, and consequently “ acceptswar independently of the justice of its origin as a relation which the parties to it may set up if they choose, and to busy itself only in regulating the effects of this relation.” (Op. cit., pp. 61-62). Hall's conclusion is similar to the views of Westlake and Oppenheim (Supra, notes 12, 13), and of Lawrence, Risley and Lorimer (infra, note 16.) Of the same opinion may be mentioned Wheaton, Elements of International Law, 8th ed., 295; Manning, Commentaries on the Law of Nations, 1839, pp. 94-104; Creasy, First Platform of International Law, 1876, p. 361; Moore, , International Law Digest , Vol. 7, p. 171 Google Scholar; Wilson, and Tucker, , International Law , 8th ed., pp. 235-240 Google Scholar; Stockton, , Outlines of International Law , p. 294 Google Scholar; Davis, , The Elements of International Law , 3rd ed., p. 272 Google Scholar; Smith, ,International Law , 4th ed., p. 106 Google Scholar; Hershey, ,Essentials of International Public Law , p. 349-352 Google Scholar; Cobbett, ,Cases and Opinions on International Law , 2nd ed., Vol. 2, pp. 12-14.Google Scholar Hyde , says: “ It is the fact rather than the cause of war which demands consideration” ; (Vol. 2, p. 187)Google Scholar, and later: “ It lies within the power of states to have recourse to war.” Doubtless little more than this is meant by Lieber's Code, Art. 67, which says: “ The law of nations allows every sovereign government to make war upon another sovereign state.” The present writer must confess to writing “ the legal right to declare war has been unlimited unless special treaties intervened.” (Minnesota Law Review, Vol. 5, p. 517, and see American Political Science Review, Vol. 13, p. 511.) It would be more accurate to say “ The power to institute a state of war has been etc.”

16 Lawrence, , International Law , 7th ed., sec. 135, p. 311. See also Risley, The Law of War , p. 68; Lorimer, , Institutes of the Law of Nations , Vol. 2, p. 6; Fenwick, , supra, , note 15; Halleck, and Woolsey, , infra, note 46.Google Scholar

17 See discussions with reference to Chino-Japanese, Russo-Japanese and Spanish-American Wars in Holland, Letters on War and Neutrality, 1914, pp. 34-38; Takahashi, , Chino-Japanese War , p. 42 Google Scholar; Russo-Japanese War, p. 25; Cobbett, op. cit., Vol. 2, pp. 1-8; Benton, , International Law and Diplomacy of the Spanish-American War , 1908, pp. 99-101, 109-115 Google Scholar; The Buena Ventura, 175 U. S. 384; Naval War College, International Law Situations, 1910, pp. 45-65; Wilson, and Tucker, , International Law , 8th ed., p. 237.Google Scholar

18 “ The contracting powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a declaration of war, giving reasons, or of an ultimatum with conditional declaration of war.” Higgins, , The Hague Peace Conferences , p. 198. All the states parties to this convention seem to have observed it in the series of wars beginning July 28,1914. See Naval War College, International Law Documents, 1917, p. 15 Google Scholar. Turkey was not a party and began war with France and Great Britain by hostile acts. Ibid., pp. 90, 119

19 Germany and France each alleged acts of war by the other prior to declaration, and the United States alleged such acts by Germany prior to declaration, but it was admitted in each case that the state of war did not begin until the declaration. Ibid., pp. 86, 103, 225.

20 This seldom occurs unless the victim is materially weaker. Supra, note 8.

21 Such acts are called reprisals. If war follows, it does not retroact to the first seizure, but begins with the declaration or first act of war. Thus Takahashi realized that the Ekaterinoslav, a vessel of the Russian volunteer fleet, would have to be considered a public vessel if the Russo-Japanese War was to be dated from its capture. Op. ait., p. 25. Westlake appears not to recognize this distinction, op. cit., Vol. 2, p. 24. Although in early cases the "United States Supreme Court held that the condition of reprisals between the United States and France from 1798 to 1799 constituted “ limited war” (Bas v. Tingy, 4 Dali. 37,1800, Talbot v. Seeman, 1 Cr. 1,1801,) the Court of Claims later held that this did not mean war in the legal sense. Gray, Admr. v. U. S., 21 Ct. Cl. 340, 1886, Cushing, Admr. v. U. S., 22 Ct. Cl. 1, 1886; Hooper v. U. S., 22 Ct. of Cl. 408, 1887; Moore, , International Law Digest , Vol. 6, pp. 1022-1025, Vol. 7, pp. 156-157.Google Scholar

22 The Prize Cases, 2 Black 635, 1862; Bernard, Neutrality of Great Britain during the American Civil War, 1870, Chap. 4.

23 The Three Friends, 166 U. S. 1, 1897; Wilson, and Tucker, , op. cit. , pp. 63-65.Google Scholar

24 Vanderbilt v. Travelers Insurance Co., N. Y. Sup. Ct. 1920,184 N. Y. Sup. 54, affirmed App. Div., 194 N. Y. Sup. 986, and Ct. of App., 139 N . E. 715; this Journal , Vol. 17, p. 578.

25 The early publicists clearly recognized that hostilities could not be considered a legal procedure unless they were “ properly conducted” (Justa Contentio). Infra, note 37.

26 As in the war between United States and Germany. See Wright, , Control of American Foreign Relations , 1922, p. 293 Google Scholar; Miller v.Rouse , 276 Fed. 715, 1921; Field, , The Doctrine of Political Questions in Federal Courts , Minn. Law Rev., Vol. 8, p. 491.Google Scholar

27 Moore, , International Law Digest , Vol. 7, p. 171.Google Scholar

28 Many constitutions go farther and permit proclamation of a state of siege, instituting martial law in case of emergency. Under the United States Constitution martial law was in actual effect in regions of the north during the Civil War, but the courts subsequently held such enforcement unconstitutional except in regions where the civil courts had ceased to function. Ex parte Milligan, 4 Wall. 2, 1866.

29 After noting that this maxim of Cicero refers primarily to municipal law but may be applied also to International Law, Moore says that its meaning may easily be misconceived.“ It signifies in effect that, when a contest of force prevails, the ordinary rules and methods of administration become inadequate and give way to measures dictated by public necessity. The system by which the ordinary administration is superseded is called martial law.” International Law and Some Current Illusions, 1924, p. 290. See also, ibid, p. vii.

30 The Three Friends, 166 U. S. 1, 1897. “ When insurgency exists, the armed forces of the insurgents must observe and are entitled to the advantages of the laws of war in their relations to the parent state.” Wilson and Tucker, op. cit., p. 64.

31 Cross v. Harrison, 16 How. 164, 1854; Santiago v. Nogueras, 214 U. S. 260, 1909; Instructions for the Government of the Armies of the United States in the Field, Gen. Ord. 100, 1863, cited as Lieber's Code, Art. 2.

32 The Prize Cases, 2 Black 665, 1863; Lieber's Code, Arts. 153,154.

33 Nelson, , J. dissenting in The Prize Cases , 2 Black 635, 1863 Google Scholar; Thayer, , Cases on Constitutional Law , Vol. 2, p. 2348. Though the majority differed from Justice Nelson in holding that the President did not need to wait for Congress to recognize war in the legal sense, they did not deny this distinction, and it was later utilized by the court in The Three Friends, 166 U. S. 1, 1897.Google Scholar See also Hershey, op. cit., p. 349.

34 Thus excluding acts by individuals or by a government against individuals as in reprisals. The following definitions do not make this limitation. “ War is an act of violence intended to compel our opponents to fulfill our will.” (von Clausewitz, On War, [1st ed., 1832] London, 1911, Vol. 1, p. 2.) “ War is the greatest and most magnificent of human actions.” (Montaigne, Essays [1st ed., 1580], Cotton, trans., London, Vol. 1, p. 394.)

35 “War is a contest or contention carried on by force” (Cicero, Orat. c. 45 [55 B. C.]). “ War is a conflict of great interests which is settled by bloodshed. . . . War is nothing but a continuation of political intercourse with a mixture of other means” (von Clausewitz, op. cit., Vol. 1, p. 121, Vol. 3, p. 121.) “ War is a contest as between nations or states, carried on by force and with arms” (Standard Dictionary.)

36 “ War is the state of persons contending by force, as such” (Grotius, De Jure Belli ac Pads, 1625, I, c. 2, par. 2, and infra, note 38). It will be noticed that this and the three following definitions do not confine war to relations between states or political entities.“ War is nothing else but that time wherein the will and intention of contending by force is either by words or actions sufficiently declared” (Hobbes, De Corpore Politico, 1650, P. I,c. 1, sec. 2.) “ War is that state in which we prosecute our rights by force” (Vattel, Droit des Gens, 1758, iii, c. i, sec. 1.) “ War is that state, in which men constantly exercise acts of indeterminate violence against each other” (Martens, Prida du Droit des Gens, 1788,VIII, c. 2, sec. 1.) “ War is the state of nations among whom there is an interruption of all pacific relations, and a general contention by force, authorized by the sovereign” (Manning,Commentaries on the Law of Nations, 1839, p. 96.) “ Public War is a state of armed hostility between sovereign nations or governments” (Lieber's Code, 1863, Art. 20, U. S. Rules of Land Warfare, 1914, Art. 24.) “ War is the relation which exists between states or between political entities when there may lawfully be ‘ a properly conducted contest of armed public forces' ” ( Wilson, and Tucker, , International Law, 1922, 8th ed., p. 235.Google Scholar)

37 “War is a properly conducted contest of armed public forces” (Gentilis, De Jure Belli, I, c. 2, 1588.) The qualification “ properly conducted” (justa) seems to convert the simple idea of contest into the legal idea of procedure. “ Wars are no massacres and confusions, but they are the highest trials 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] Bacon, Works, Montague ed., Vol. 5, p. 384.) “ War is a contest between independent parties by way of force or deceit, for the purpose of pursuing their rights.” (Bynkershoeck, Questiones Juris Publica, 1737, I, c. 1.) See also definitions by Phillimore and Holland, Supra, note 15.

38 Grotius, op. cit., I, c. 2, par. 2. See also Yattel, III, c. 1, sec. 1; Fenwick, op. cit., pp. 428-429; Moore, , International Law Digest , Vol. 7, p. 153.Google Scholar

39 Supra, note 15.

40 Supra, note 5.

41 See summary of much of this literature in article by Barnes, Harry Elmer , Current History Magazine , May, 1924, Vol. 20, p. 171, and comments by ten historians and political scientists thereon, ibid., June, 1924, Vol. 20, p. 452.Google Scholar

42 Extreme complexity of causation would have the same effect from the standpoint of placing responsibility as inevitability. “ No war, strictly speaking, is inevitable; but in a storehouse of high explosives it required rulers of exceptional foresight and self-control in every country to avoid a catastrophe.” Gooch, , Recent Revelations in European Diplomacy, Journal of the British Institute of International Affairs , Jan. 1923, p. 29.Google Scholar See also Gooch, , History of Modem Europe , pp. 534-559.Google Scholar

43 Holmes, , Common Law , pp. 7-11 Google Scholar; Holland, op. cit., p. 154; Gray, , Nature and Sources of the Law , 1916, secs. 100-110 Google Scholar; Evans, , Criminal Punishment and Prosecution of Animals , N. Y., 1906.Google Scholar

44 DeQuiros, Bemaldo , Modem Theories of Criminality Google Scholar; Ferri, , Criminal Sociology , 1917, pp. 288 et seq.Google Scholar; Parmelee, , Criminology , 1918 Google Scholar; McConnell, , Criminal Responsibility and Social Constraint , 1912 Google Scholar; Darrow, , Crime, the Cause and Treatment , 1922.Google Scholar

45 Salmond, , Jurisprudence , p. 436; Wharton, , Criminal Law , sec. 89Google Scholar

46 War was regarded as a legal procedure in ancient Rome when sanctioned with due formality by the Fecial College (Walker, History of the Law of Nations, p. 47). The Christian fathers found some difficulty in reconciling war with certain passages of the Bible, but doubts were set at rest with the publication of Gratian's Decretal (about 1140) in which Isidore of Seville (Etymologie, 600 A. D.) was followed in holding that war is not necessarily sinful and in distinguishing just from unjust wars. A series of writers followed with the similarity of treatment characteristic of medieval writing. They generally distinguished seven sorts of war, five unjust and two just, with a definition of the latter from Cicero through Isidore. “ Quod geritur expraedicto, aut rebus repetitis aut propulsandorum hoslium causa.” See T. E. Holland, Studies in International Law, pp. 40-58, who discusses the work of Legnano, De Bello, de reprisalis et de duello, 1360; Henry of Gorcum, De bellojusto, circa 1450; Franciscus Victoria, Relectiones, circa 1540; Dominicus Soto, De justitia et jure, circa 1550; Vasquez, Controversum illustrium, libri tres, circa 1560; Pierino Belli, De re Militari et de bello, 1563; Balthazar Ayala, De Jure et Officiis bellicis, 1581 and others. The latter writes, “ Justa bella sunt jure gentium indicta” (I, c. 2, sec. 6). Gentilis, who added much to the work of his predecessors, thinks that in last resort recourse may justly be had to war but “ Si necessitas non subsit, belle esse justurn nec 'posit.” (De Jure Belli, 1588, I, c. 3.) Grotius devotes a chapter to the question whether war is ever just, with the conclusion “ Dejure naiurali, ergo, quod et gentium dici potest, ratis constat eo bella non omnia improbari.” (1625/1, c. 2, par. 4.) Not content with this, he proves at length that war is not prohibited by divine law as declared by the old or new testament or by the church. Pufendorf thinks “ Peace is a state proper to human nature as such; since it ariseth from a principle peculiar to mankind above the brutes; whereas, war flows from principles common to both.” But nevertheless man is entitled by nature “ to defend himself or to recover his right by force when he cannot obtain it by easier means. When men are forced to fight, however, it is not because they are to make war perpetually, but that they may enjoy a lasting peace and security for the future.” Jus Naturale et Gentium, 1672, viii, c. 6, sec. 2. Yattel's opinion is similar. (Droit des gens, 1758, iii, cl. 3.) All of these writers realized that this view required them to distinguish just from unjust wars, which they did on the ground both of formally just commencement and conduct and of substantively just causes. Among modern writers, Halleck follows the same practice with liberal citation from the classics, but apparently with the implication that the question is one of ethics rather than of law. (International Law, 4th ed., Chaps. 15, 16.) See also Kent who says, “ An injury either done or threatened, to the perfect rights of the nation, or of any of its members, and susceptible of no other redress, is a just cause of war.” (Abdy ed., 1866, p. 164). Martens, Precis de droit des gens, makes a similar statement (1788, viii, c. 2, sec. 3), as does Woolsey, Introduction to the Study of International Law, 1860, sec. 116. For the usual attitude of modern writers see Supra, note 15.

47 Grotius considers authorization by the sovereign an essential to just war, and sovereignty vested in a single individual as normal, though he recognizes the possibility of variation “ according to the laws and custom of each nation.” Op. cit., I, c. 3, par. 4-8.

48 Supra, note 16.

49 This movement can be measured by comparison in successive periods of the number of public and private international organizations, agreements and settlements. See Potter, , Introduction to the Study of International Organization , tables given on pages 190, 216, 226, 272, 291, 296, 323, and discussion of causes, p. 308.Google Scholar See also, Wright, , this Journal , Vol. 13, pp. 242-247.Google Scholar

50 This tendency can be measured by comparison in successive periods of military appropriations and average size of standing armies and navies in time of peace, and number and cost of wars in expenditures and destruction of life and property. Such statistics are exceedingly difficult to compile and compare and are apt to be unreliable. See, however, report of Massachusetts Commission on Cost of Living, The Waste of Militarism, and the Staggering Burden of Militarism , World Peace Foundation pamphlets, Oct. 1912, April 1921, August 1921; Wright, Limitation of Armament, Institute of International Education, Syllabus 12, Nov. 1921; Anderson, and Hershey, , Handbook of Diplomatic History , 1870-1914, Washington, 1918, pp. 468-474 Google Scholar; Krehbiel, , Nationalism, War and Society , 1916, pp. 62, 7074, 257 Google Scholar; Bodart, , Losses of Life in Modem Wars , 1916 Google Scholar; Dumas, and Vedel-Petersen, , Losses of Life Caused by War , 1923 Google Scholar; Moore, , International Law and Some Current Illusions , pp. 8-13 Google Scholar. The latter gives figures indicating that recent wars have not destroyed so large a proportion of the population of belligerent countries as earlier and ancient wars, but absolute losses have tended to increase, not only for equal times but for wars as a whole. The fact that wars have tended to be shorter perhaps indicates the more rapid exhaustion of belligerents. On the tendency of modem warfare see, Rear Admiral Rodgers, U. S. N., this Journal , Vol. 17, pp. 1-14; Col. Fuller, J . F. C., D. S. O., The Reformation of War , N. Y., 1923 Google Scholar; Irwin, Will , The Next War , N. Y., 1921.Google Scholar

51 Every great war has been followed by an extensive agitation for the elimination of war, and the relative strength of such demands is difficult to measure. Comparison of the proportionate amount of peace literature, and of the number and cost of private and public organizations devoted to this object, seem not to be available. Studies of the evolution of international organization and the extent of government participation in and delegation of functions to such organization seem to justify the statement given. See Sayre, , Experiments in International Administration , Chap. 1; Potter, , op. cit., pp. 438-510 Google Scholar; Fried, , Handbuch des Friedensbewegung , 1913; Krehbiel, op. cit., Chaps. 16-19, 28-30, giving extensive bibliographies.Google Scholar

52 Maitland, and Montague, , A Sketch of English Legal History , 1915, p. 103.Google Scholar

53 Natural law is here used in its widest sense as distinguished from artificial law in that its source is nature rather than human purpose. (See Ulpian, Jus. Inst. I, 2). It has also been distinguished from positive law in that its sanction is nature rather than enforcement by political authority (Holland, op. cit., p. 31), and from civil law in that it is universal rather than limited to a special country. In this sense it is equivalent to jus gentium as understood in ancient Rome. (Cicero, De Of. 1, 23.) See also Pollock, , Introduction to the History of the Science of Politics , 1908, p. 110.Google Scholar

54 Pound, , Interpretations of Legal History , 1923, pp . 11, 152 et seq.Google Scholar; Dicey, , Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century , 1905, pp . 41-47 Google Scholar; Maitland, and Montague, , op. cit., pp . 161-162 Google Scholar; Wright, , Legal Nature of Treaties , this Journal , Vol. 10, p . 707, Oct. 1916.Google Scholar

55 Pound, , Introduction to the Philosophy of Law , 1922, p. 189.Google Scholar The artificiality of the concept of legal responsibility is well illustrated by the efforts of the analytical jurists to define liability so as to include the various kinds of intentional wrong, negligence, and liability without fault known to the law, and to explain the relation of the act in question to the total causation of the effect attributed to it. See Holland, , op. cit., pp. 105, 149-151,327;Salmond, , op. cit., pp. 401-403, 410-411.Google Scholar