Writers on international law are now in substantial agreement that a belligerent ought not to detain enemy subjects, confiscate their property, or subject them to any disabilities, further than such as the protection of the national security and defense may require. Vattel, in 1758, appears to have been the first writer to adopt the view that had come to be generally held by publicists at the time the present war broke out. “The sovereign,” he said, “who declares war has not the right to detain the subjects of the enemy who are found within his state, nor their effects. They have come to his country in public faith; in permitting them to enter and live in the territory, he has tacitly promised them all liberty and surety for their return. A suitable time should be given them to withdraw with their goods; and if they stay beyond the time prescribed, it is lawful that they should be treated as enemies, though as disarmed enemies.” Alexander Hamilton, in defending the Jay Treaty of 1794, declared that the right of holding property in a country always implies a duty on the part of its government to protect that property and to secure to the owner full enjoyment of it. “Whenever, therefore,” he added, “a government grants permission to foreigners to acquire property within its territories, or to bring and deposit it there, it tacitly promises protection and security — the property of a foreigner placed in another country, by permission of its laws, may be justly regarded as a deposit of which the society is the trustee.” Westlake, in 1907, adverting to the numerous treaty stipulations on the subject, remarked that they might be deemed to amount to “a general agreement, on the part of governments, that modern international law forbids making prisoners the persons of enemy subjects in the territory at the outbreak of war, or, saving the right of expulsion in case of apprehended danger to the state, refusing them the right of continuous residence during good behavior.” Referring to the right of expulsion, Ullmann, a respectable German authority, remarks that expulsion can be resorted to against the subjects of the enemy state, but only after a suitable delay has been offered in order to enable those affected to wind up their affairs.

Political scientists make a sharp distinction between the terms “State” and “Government.” A State is a group of individuals viewed as a politically organized unit. In the eyes of the law it appears as a corporate being possessing supreme authority and issuing commands in the form of laws addressed to those over whom it claims authority. A Government is the machinery or complexus of organs through which this state-being formulates, expresses, and enforces its will.

In my preceding paper I dealt wholly with the Prussian conception of the State and had nothing to say regarding Prussian conceptions of Government. In this paper I shall have little to say regarding the Prussian theory of the State and shall devote myself almost wholly to a consideration of the Prussian governmental system. Of this system, however, I shall speak of but one of its features, namely, its strong monarchical character. In result there should appear what justification there is for the demand of the United States and of the Entente Powers for a modification of the Prussian system.

Perhaps no part of international law gives rise to more uncertainty and disagreement than the law which determines the resulting rights and duties of states and individuals upon a change of sovereignty, — the so-called law of succession. One group of writers holds that the. new sovereign succeeds to all the rights and obligations of the former sovereign with respect to the territory ceded. The new sovereign, it is said, like the Roman heir, is “universal successor” to the obligations as well as to the rights of the former sovereign. Grotius suggests the analogy of the Roman heir when he says: “Heredis personam, quoad dominii tam publici quam privati continuationem, pro eadem censeri cum defuncti persona, certi est juris” (Book II, Chap. IX, sec. 12). Again, he says: “Potest imperium victoria acquiti, ut est in rege alio imperante, et tune in ejus jus succeditur” (Book III, Chap. VIII, sec. 2). This analogy, suggested by Grotius when international law was in the making, has had a remarkably strong influence upon the development of the rules of international law governing a change of sovereignty. Many writers of authority, following in the footsteps of Grotius, have laid it down that the new sovereign succeeds to all the obligations as well as to the rights of the former sovereign.

We now come to the last part of what one might call the Greek tragedy, which was played in Hellas during the first three years of this world war with such marvelous success under Teutonic guidance. The events of June, 1916, laid bare the whole plot, unmasked the royal actors at Athens, and compelled France and England, the protecting Powers of Greece, at last to take drastic measures.

The surrender of the “key” to Eastern Macedonia (the Roupel fortress) by Constantine to the Germano-Bulgarian forces was rightly considered by the guardians of Greece as a hostile act directed against them, demanding the adoption of appropriate measures for the security of their armies on the Balkan front. Their first measure to this end was the substitution of Allied authorities for those of Greece in the city of Salonika. The second was the refusal by Great Britain to supply coal to Greek ships. The three Entente Powers had previously warned the Greek Government that if it allowed the armies of their enemies to advance freely into Greek territory, such action would lead to serious consequences. Therefore, the Royal Government of Greece, fearing lest the Allies institute repressive measures of a more drastic character, informed the Entente Governments that the further advance of the Bulgarian troops into Greek territory would be prevented.

At the present moment, when the very existence of international law as a practical element in the conduct of human affairs is doubted or derided by many and when such precepts as are claimed to be fundamental in that law itself are daily set at nought by belligerents in the world conflict, it has been thought that a brief outline of the earliest conceptions characterizing international jurisprudence will prove neither, useless nor unwelcome.

The term “International Law” has, in the usage of our day, quite superseded the earlier expression “law of nations,” long since adopted as a translation of the Latin phrase jus gentium. The expression “International Law,” however, so familiar to us, properly denotes a wholly variant conception. In modern days it is used by the celebrated D’Aguesseau and occurs in Volume II of his works, page 337 in the edition of 1773; it is shortly afterward employed by Bentham in his “Principles of Morals and Legislation” (XVII, 326, n. 1), and has since his time come into general use. D’Aguesseau’s expression (droit entre les gens) is doubtless, in its turn, an adaptation from Zouche, Professor of Civil Law at Oxford, who uses, about 1650, the term jus inter gentes in harmony with the thought of Grotius as expressed in the opening paragraph of the Prolegomena to his De Jure Belli Ac Pacis, where Grotius explains at the outset the intended subject of his great treatise, — at jus illud quod inter populos plures aut populorum rectores intercedit, sire ab ipsa natura profectum, aut divinis constitutum legibus, sine moribus et pacto tacito introductum, attigerunt pauci, universim ac certo ordine tractavit hactenus nemo; cum tamen id fieri intersit humani generis.

Freedom is a relative term. It involves limitations as well as rights. There is no such thing as absolute freedom of any kind. A man is free only when his neighbors are limited. The matter is one of adjustment. As to the seas, the question is not one of “whether,” but of “how much.” It is, therefore, not surprising that there is a wide divergence of opinion as to what the term “freedom of the seas” means.

Each world Power has certain major and certain minor interests, and it is from this point of view that each fixes its definition of terms. Possibly peace will come about through an agreement on phrases, the divergences of opinion appearing only on conference; but when this country speaks of the “freedom of the seas” as a necessary peace term, it states nothing more definite than if it had said, “we want peace with honor.”

Freedom of the seas in time of peace is so generally acknowledged that it is hard to realize it was not so very long ago, as the course of history runs, that America fought for this principle. For a long time it was strenuously asserted that the cruisers of one nation might lawfully search merchant vessels of another nation in time of peace. Algiers, Tripoli, Tunis, and Morocco, in the early part of the last century, supported themselves by tribute levied on commerce as an alternative to piratical depredations. America’s first military excursion to Europe put a stop to this practice.

A Thousand peace proposals doubtless could be accounted for in the last five hundred years. Some of them for one reason or another are famous. Dubois, Crucé, Podebrad, Henry IV, Rousseau, Kant, Bentham, Penn, Ladd, are names in this connection quickly recalled to memory.

Now why did all these proposals fail to be heeded by war-weary humanity? Two reasons may be given: first, for the most part they were paper proposals; there was not sufficient driving power behind them; they were written out, the ink dried, and the task was done. No more can a peace proposal organize itself on paper than can a corporation manufacture steel billets with a red-ribboned charter. There must be responsible and powerful initiative, and this initiative must come from a state. Of course, every paper proposal helps to fertilize the ground against the time when nature in its blind way is ready with a favorable wind to implant the germinal substance of a harvest, be it only of thistles or ragweed.

A romantic view of life has it that law grows, that it can not be created. Another similarly romantic allied notion is that man is a product of the earth like a plant. We would not deny the element of truth in these views which flourish or have flourished in the shadow of great names. But is not there something of one-sidedness in this; is not there some exaggeration? Does not destiny hold out some encouragement in the achievement of metaphysical purpose, of final ends, to the use of man’s creative intelligence as a part of the process? It is fortunate for these reflections that on this philosophical jousting-ground, the beliefs, the practices, habits, and experiences of most men are often — or seem to be — favorable to effort.

It was two years after the United States formally declared for the recognition of the new Latin-American states and after several Spanish-American states had been recognized before the question of recognizing Brazil arose. When, in April, 1824, Rebello presented himself in Washington as the Brazilian chargé, a difference of opinion arose in Monroe’s cabinet, because Brazil was a monarchy, while all of the other American governments were republics, and some hoped that monarchy might have no foothold on the continent. Others, however, advocated the recognition of Brazil the more strongly because it was a monarchy in order to show the world that it was the fact of independence which actuated the United States rather than the form of government.

The opposition to recognition was strengthened by recent news of a formidable separatist movement in the north, with Pernambuco as a center, the purpose of which was to establish an independent republic under the name of the Federation of the Equator. This; raised a serious doubt whether the government at Rio de Janeiro were really in effective control. It was reported, too, that the assistance of French naval vessels had been accepted in order to repress the Pernambuco revolt. This conjured up the specter of the so-called Holy Alliance, for the exclusion of which from America Monroe’s famous message of the preceding December had declared. There was also a strong suspicion, supported by persistent rumors, that Dom Pedro (who had allowed himself to be made Emperor when in 1822 Brazilian independence from Portugal was declared, who had summoned a constituent assembly and then quarreled with it and finally forcibly dismissed it because it proved too liberal to suit his ideas of prerogative, and who had appointed a council that had drawn up a fairly liberal constitution in harmony with his wishes which he had not yet taken the oath to observe) really wished to restore Portuguese sovereignty and rule Brazil as a vassal of his father, the King of Portugal. About the middle of May, however, word came that in the preceding March the Emperor had taken the oath to the constitution of the independent Brazilian Empire. After Rebello had given assurances concerning the suppression of the slave trade and the observance of treaties that had been negotiated with Portugal, he was formally received by President Monroe as Brazilian chargé on May 26, 1824. He expressed his gratitude that “the Government of the United States has been the first to acknowledge the independence of Brazil.”

In an exchange of notes of November 2, 1917, between Secretary of State Lansing and Viscount Ishii, Special Ambassador of Japan, occurs the following paragraph:

That states are more interested in the immediate neighborhood of their frontiers than in remote parts of the world, and are apt to carry on a disproportionate commerce and intercourse or even to expand in such regions, are facts familiar to all students of history and diplomacy; but that geographical position should create special legal capacities is a doctrine perhaps more unfamiliar and seemingly in conflict with certain traditionally repeated maxims, such as the equality of states. If peculiar geographic relationship gives rise to peculiar legal privileges and responsibilities, an absolute equality of states can not be assumed, although equality before the law or equal protection of the law might still be recognized. The fact is unquestionable that on frequent occasions the geographic position of territory. has been offered and accepted as a justification for exceptional proceedings, admitted, in some cases, to be otherwise contrary to the requirements of international law.

The Constitution wholeheartedly accepted Montesquieu’s theory of the separation of the powers of government into three departments, and the courts have maintained as a fundamental principle of constitutional law that no department shall exercise powers properly belonging to either of the others. The treaty-making power is established in Article II of the Constitution dealing with the executive, and consequently treaty-making has been ordinarily considered one power of the executive department. It is, however, stated that “the executive power shall be vested in a President of the United States of America,” whereas the treaty-making power is vested in the President acting “by and with the advice and consent of the Senate — provided two-thirds of the senators present concur.” Furthermore “treaties made … under the authority of the United States” are “the supreme law of the land.” Thus, both by composition and function the treaty-making power appears to be fully as much legislative as executive, a situation emphasized by Hamilton in the Federalist.