THE LAWLESS LAW OF NATIONS. By Sterling E. Edmunds, LL.D. Washington, D.C.: John Byrne and Company. $5.00.
Reviewed by Rear Admiral W. L. Rodgers, U. S. Navy, Ret.
The book is not so much an exposition of the Law of Nations as it is a stricture therof. The law of nations as it is practiced today does not agree with the author’s philosophy of life and government, and he displays some resentment against it and its upholders. The writer’s summary of the state of international law is most learned, but he has the obsession that it is developed and manipulated for purposes foreign to the good of the peoples of the world. He believes that rulers of states, even states with democratic forms of government, are not real representatives of their peoples and the latter's wishes.
He states in his preface: “I feel that I have demonstrated the complete oppugnancy between the prevailing system of the law of nations and the free progress of man as a social and moral being. In doing so, I have been compelled to deny that the law of nations is in fact a branch of jurisprudence, and thus to part company with my professional brethren in this field.”
He believes that people should strip their governments of external power they now have, but disavows that he has any bias toward Bolshevism, Socialism, or Anarchism. The writer states that, in the course of history, civilized peoples have thrown off despotism in their domestic affairs and substituted a government of limited powers controlled by the people.
Notwithstanding, in foreign affairs, nations are ruled by a narrow oligarchy who control peace and war and the manner of waging war as they think advantageous to themselves and their own interests; this state of affairs he wishes remedied, for it reacts unfavorably on domestic governments.
“The Law of Nations, so-called, is not a law of restraints upon sovereign states, but rather a law of condonation; a law sanctioning every outrage that a sovereign government commits against other peoples for its own aggrandizement. . . . . No people who has ever permitted its government to strip another people of its liberty has ever saved its own.”
The writer thus throws down a challenge to the law of nations to justify its existence.
He does not find the sovereign state living according to the rules evolved by man as a social and moral being in his municipal systems.
“Peoples .... must establish .... safeguards against the capricious irresponsibility of their Sovereign Governments in the international field.”
The writer regards governments as promoting wars for the benefit of the rulers themselves and their banking and commercial friends, and thinks that in international matters “economic man in pursuing his self interest would, as invariably results, promote the good of all.” This view arises from a doctrine which is now somewhat outgrown.
We are getting more and more government as the complexity of our social and economic life increases, precisely because the “economic man” pursuing self interest does not promote the good of all, either in national or international affairs.
Considering the “economic man” to which the writer alludes, it must be acknowledged that he has two functions. He is a producer and also a consumer. It is as producer that all the world can and does cooperate with his neighbor. In general, people do not wish to stop their neighbors from producing, but when it comes to consumption of products and enjoying the fruits of labor the economic man does not cooperate but competes with his neighbor. Production is difficult; consumption is a pleasure and satsfaction; and the chief end of government is to provide rule and order, so that each man may consume the fruits of his own labor himself and not have to forfeit them to another.
With the developments in mechanical power and transportation of the last century, the economic units of the world have become very large Whole nations are now competing collectively with other nations in the economic field.
The writer believes that the “inherent vice of the so-called Society of Nations” lies in its “fraudulent organization of ruling politicians throughout the world, disguised and glorified as sovereign, that is, omnipotent states, whose power no people can limit.”
But all governments are more or less representative of the people. Even despotism is tempered by assasination, and the writer does not explain how the ruling politicians whom he dislikes can be replaced by a purer and better choice, more representative of the people’s will.
The writer is not alone in proclaiming that international law is no true law. There are two conceptions of law, says he, one “embodying the idea of order founded in agreement between man and man as rational beings effecting peace through bearing and forbearing in their relations with their fellow-man, the other, denying the possibility of peace save through the surrender by man of all his rights into the hands of an autocrat.”
Taking either view of law, the relations between sovereign states are not law, for they are founded neither on invariable custom and precedent nor on the sanctions provided by authority. The generally accepted view is that law is a rule of conduct imposed under a sanction of superior might. As the world is guided by this latter conception, let us see why it cannot be enforced in international affairs, as the author wishes. In municipal matters observance of law is constrained upon an offender, by a force so great that he does not make overt resistance. The examination in the court is assumed to be impartial, and when judgment is pronounced it is futile to withstand it.
If, however, the law is unable to summon an overwhelming force to its support, it is likely to be disregarded. There are many laws on the statute book which cannot summon force enough to get themselves obeyed.
The writer chooses “economic” man working for himself as enjoying the ideal condition of life, but admits that government is necessary to provide order. However, he regards military force as wholly an evil thing because it is abused by people holding governmental authority for their own ends. But this abuse is a secondary matter, and this view is not in accord with history, which shows that order provided by government through use of superior force is the primary condition for the development of “economic” man in the specialization of industry. We are now pushing this specialization further than ever. Great industrial nations need order more than ever in the past. They cannot place themselves and their industrial organization at the mercy of nations less highly organized in industry. “We commanded you that he that would not work neither should he eat,” says the Bible. But this command was possible of execution only in a world protected and given peace by Roman arms. Without similar protection lawless people today might eat without working. To be sure the necessary armament of a nation may be turned against the liberties of its own people by the abuse of power on the part of rulers, but, even in such a case, the government must continue to perform its first duty, the preservation of order, or even a despotic government (tyranny) will fall.
The writer believes that nations can live together harmoniously by wishing and willing to do so. Who then is to decide as to the division of the fruits of the earth when disputes arise? This can only be settled by a super-government complete in all its parts, and if we should ever get such a thing, the originally satisfactory adjustments of different regions and peoples will vary so in the lapse of time that virile peoples will probably seek to right their real or fancied wrongs by civil war instead of by international war. It is not an attractive alternative.
The writer believes that the law of nature or of morality should be the guidance of nations in their relations. Of course, this is admitted by all as an academic truth, but we never have determined for individuals what is the sound general criterion as to the moral duty of self-sacrifice. Yet that is the moral question confronting nations when they find their interests and policies clashing. After conceding reasonable compromises, they must either sacrifice their rights and interests or fight. The law of nations is then, as the writer says, no true law. It is a code of etiquette and convenience and a guide as long as the conditions last which each rule was made to meet.
Regarding states as sovereign, that is, as having no superior to lay commands upon them, there are two parts to international law: one regards the relations of the states as such, that is, of their respective peoples as collective units; and the other, that of individuals of the respective states with other states.
While a treaty is no true law by Austin’s definition of a rule having an enforceable sanction, yet, when ratified, it becomes national law with relation to the respective nationals of each country, because each state enforces observance upon its own nationals.
But a treaty is made to suit the conditions of the day; as time passes it may become unsuitable to new conditions. If, then, one party wishes to break or amend it, it should have some recognized way of doing so without incurring the charge of law-breaking. If this country adheres to the World Court, and places treaties on a basis entirely legal, it can never release itself from antiquated and unsuitable agreements; for a court is in its essence conservative, and if a world court proceeds to legislate to meet new conditions by judicial decisions, it will not fulfill its functions as we of the United States see them. For public opinion in this country has always deemed the right of courts to legislate by interpretation of existing law to meet new conditions.
The writer concludes his chapter on treaties by saying that “the idea of sovereignty, or unlimited and irresponsible power as an essential attribute of states in the prevailing system renders international contractual relations wholly futile.”
As individual men rarely require the law to vindicate the faith of contracts, so the writer seems to believe that the law of nations should maintain the faith of treaties were nations, that is, the people themselves, only members of the “Society of Nations.”
This suggestion raises the question of force available to the “Society of Nations” to vindicate the law. Shall the super-government maintain a military force, or shall it prescribe boycotts and other forms of pressure short of war, or is it to direct some member to make war in the name of the Society of Nations?
If individual nations send contingents to serve under the super-government, they will scarcely renounce control over their contingents. Boycotts are objectionable to all concerned and if put in execution they are an unstable form of coercion which tends either to lapse or to turn to war. And as for directing some member nation to make war against the offending nation, it is probable that the ministerial nation will see to its own profit in its belligerency before undertaking the service, and this would disturb the “status quo” so dear to all who rely on law as all-adequate to preserve peace.
The writer deals at some length with “freedom of the seas.” The first impediment to the free use of the seas was piracy. That has been done away with, and, in time of peace, navigation is now free to all peaceful shipping, no nation interfering therewith by violence. But in time of war, belligerent powers exercise a considerable measure of control or supervision over traffic under the accepted rules of war.
The writer believes that justice and right should grant free traffic to neutral trade and to privately owned enemy property. Apparently, if he could, he would confine belligerent action on the high seas to battle between hostile combatant shipping. He is seemingly unaware that commerce is the ultimate objective of maritime warfare and that navies fight each other only to clear the way for the control of maritime traffic in their own interest.
If force is ever to be applied between nations, either in their present sovereign relations or as members of some super-government, the attack on national trade is an indispensable method of applying coercion. For there are two ways of making effective war, that is, of bringing one belligerent to yield his will to that of the other. One way is by a direct attack upon persons and lives; the other way is by an indirect attack upon lives by crippling or destroying the material means of support. A man’s property is what makes his life worth living.
Thus, the capture or destruction of hostile trade is a very severe blow to the enemy. In the last war the English blockade of Germany caused her people to fail before her armies did. In the present closely knit economics of trade, a nation at war needs to draw support of her war industries from all the world, and attack upon trade is not so inhumane as bloodshed. Moreover, private ownership should not claim immunity solely on that account. Private ownership vests in two classes of goods distinguished as producers’ goods and consumers’ goods. The first class is goods in manufacture and in traffic, which have not yet arrived in the hands of the ultimate consumer where they are to remain in service. Consumers’ goods are products in the hands of the last owner who does not intend to part with them in the way of business. These last should be respected by the laws of war, for they are really privately owned, but producers’ goods of all classes are part of the national resources all more or less essential to his maintaining the war, and national insurance spreads the risk so that the private owner has no substantial personal ground of complaint if he loses to the enemy.
As for the sanctity of neutral trade, it has two sides. As neutral trade it should be inviolable, but as it is also belligerent trade it is support to the enemy.
The practical procedure as worked out through the centuries is to operate against it, as far as may be, without driving the neutral to active resistance and participation in war to afford protection to his trade. As every nation is loath to go to war, the belligerents have a considerable field even when the neutrals are strong. For us of the United States, our historic stand (when neutral) for a law of war favoring neutral rights is now ill advised. We should prefer a law favoring belligerent rights. We are no longer weak. Our financial and naval strength and vast industries are so necessary to belligerents when we ourselves are neutral, that we can command favorable diplomatic easements of any code of practice severe towards neutral trade; whereas, when we ourselves are at war we legally should be free to control neutral trade somewhat rigidly as we have always done when at war. Our practice in the Civil War was the basis of English practice in the recent war. If this country preserves its present naval strength, the British practice of the last war is one which this country should support as a proper one for the future.
The new methods of visit and search known colloquially as the “Kirkwall” practice have much to commend them in principle, although it was averred that the British abused their opportunity to aid their own business. If the charge is true, it was extremely bad policy, for war bears hard on neutrals, and it is unwise to give unnecessary offense to neutrals, for moral forces control the action of peoples even in the case when the rulers seemingly hold the most absolute power over their individual subjects.
The writer closes his review of international relations with a declaration of the horrors of war as forced upon the world by sovereign states acting contrary to the wishes of their peoples and he avows his belief that if “man’s freedom is to continue, if the realization of the law of equal freedom is not to be indefinitely postponed in the resurgent mediæval savagery, foreshadowed in the present day remobilization of whole nations for war by their sovereign states, a new political upheaval, the counterpart of that begun in the late Eighteenth Century, must close the protecting circle of constitutional government around him.”
Thus he seems to look to revolution and civil war as the probable route for escape from recurrent international wars.
THE LIFE OF AN AMERICAN SAILOR, REAR ADMIRAL WILLIAM HENSLEY EMORY, U. S. NAVY. From His Letters and Memoirs. Edited by Rear Admiral Albert Gleaves, U. S. N., LL.D. New York: George H. Doran Co. $4.00.
Reviewed by Rear Admiral C. F. Goodrich, U. S. Navy, Ret.
The author, who modestly calls himself “editor,” gives an interesting account of the life and experiences of his subject, in that excellent style of which he is the master.
The customary practice of the reviewer is to present a summary of the contents of the book under his criticism. Except for stressing the value of a distinguished ancestry of which Emory is an exemplar, I do not employ this method, for the reason that it might possibly influence the reader to content himself therewith and so deprive himself of the pleasure which a familiarity with this volume would unquestionably yield. My object is to arouse the interest of the rising generation of naval officers in Emory as the man and the sailor, his personality and his charcater, believing as I do, that our younger men will find much to emulate in his career, especially in his devotion to the service of which he was an ornament. Consequently I shall use his record, as I must at times, only to substantiate my opinions. For a full understanding of Emory’s achievements, recourse should be had to the work in question.
His self dependence is first shown in how he secured his admission into the Naval Academy. Residing in Washington, he obtained a round-robin recommendation from certain senators and members of Congress, and then camped out on the steps of the White House until, after long waiting, he was finally shown into the President’s office, where he made his own plea to Mr. Lincoln, who sent for his mother, and said to her, “Mrs. Emory, any boy who wants to enter the Navy so much that he comes to me for an appointment ought to have it. I should like, with your consent, to appoint him.” So, on September 23, 1862, he became an “acting midshipman.” Thus early did he learn that the best way to get what he wanted was to “go for it” himself.
He made friends in all walks of life, as witness the regard he inspired in no less famous person that Colonel Cody, better known as “Buffalo Bill. Concerning this friendship, two very amusing incidents are embodied in the text. At the other end of the social scale was Admiral David D. Porter, to whom he was aide when a lieutenant, and whom he served with zeal and tact, the latter particularly exemplified in his blocking, at Washington, a certain bit of legislation adverse to the interests of the Navy and the admiral, then ill at Narragansett Pier.
One cannot resist quoting, in passing, from one of Porter’s letters to Emory, “there are too many of those damn boards at Washington. They should all be broken up.”
In the relief of Greely, by the expedition under Schley, Emory commanded the Dear, a Dundee whaler bought for the purpose and later transferred to the Revenue Marine. His loyalty and the efficiency of his support of his senior officer mark every page of that story. Before his starting, Mrs. Emory, in an adjoining room, overheard Schley say to her husband, “Our orders are to bring them (the members of Greely's party) back, dead or alive. Suppose we do not find them?” Emory replied, “In that case, I shall not come back.” That is the kind of man Emory was, for he meant every word he said.
The duty of Arctic exploration is arduous enough under any circumstances, but in this instance, it was still more so, for all of Schley’s men realized that the rescue of Greely might be a matter of a day or two, hence no delay nor slackness of effort was permissible. Therefore, Emory spent the time either on the bridge or, more generally, in the crow’s nest, which he seldom left, eating there the food carried up to him, and only coming below, when too numb, for a rub down with alcohol. This done, he would return to his lookout aloft. Emory’s robust frame enabled him to endure what would have incapacitated a man physically weaker.
What a fine spirit he showed when Schley told him he was too bold and that if he continued to jump his ship over the rocks and ice, he would sink her. To this cautionary warning Emory replied that, if he did, he would buy one of the whalers (seeking Greely to win the large reward offered) and keep on to the north. No wonder that two such men as Schley and Emory found Greely and the six survivors out of the twenty-four.
We must credit Emory with what is now termed vision. Before the Bear sailed from New York, he located the dentist there who had treated Greely’s men and obtained all the data possible about their teeth to aid in identifying their bodies, if dead. This information proved later to be of the greatest help.
Here is what Schley said of him officially, “I would commend him especially to the Department as an officer of high professional merit and competency and would frankly state that much of the success of the expedition was due to him and his able officered ship.”
In 1887 he was given the command of the Thetis, which had been Schley’s flagship in the Greely search, and was sent around to the west coast and up into the Bering Sea, primarily to help our whaling vessels to return to warmer waters when the season closed in the Arctic Ocean. No better man could have been found for this dangerous service for to his energy and fearlessness was added his knowledge of Arctic conditions gained in the quest of Greely. Beside his many good deeds to stranded or shipwrecked sailors was his saving and bringing back to port the schooner, Jane Grey, pinched in the ice, abandoned and lying on her bilge in an ice field. It was a seaman’s job to right her, patch up the holes in her hull, and fit her for the voyage south. Herein Emory revealed an unsuspected talent. He and his crew waived all claim to salvage, feeling, as he remarked in his official report, “a great personal interest in having the Jane Grey returned to Captan Kelly in person, as he is a fine specimen of an American seaman, and the vessel wrecked represents his savings of many years.”
Emory was always the soul of hospitality and when a bucket was hoisted at the Thetis’ foreyard arm, the whaler captain repaired on board her not so much for what that signal implied as to foregather with her genial and competent skipper. To the uninitiated, it may be observed that the signal conveyed the same invitation as the broken match brought to you on a tray by a ward room boy in days now gone forever. The complete story of Emory’s work on this cruise reads like a novel of adventure.
His next duty was as Naval Attaché in London, a very different scene from those stormy icebound seas with which he had become so familiar. His work demanded extreme tact, courtesy, and knowledge of men. He performed it to the entire satisfaction of his superiors there and in Washington. His record indeed was better than that of his predecessor, whom it had been thought impossible to replace. For his social success in such an exacting community, one should go to Gleaves’ biography.
Emory shortly afterward found himself again in the Bering Sea, this time in command of the U.S.S. Petrel, which, with my own ship, the U.S.S. Concord, and others, was engaged in that solemn farce called “protecting the sea herd.” It was a pleasure to work with him and Folger of the Yorktown and under such a senior officer as our beloved Charlie Clark, later of the Oregon. In this field my earlier appreciation of Emory’s skill and courage was merely strengthened, in no wise changed.
We both returned to the China station that autumn to learn that China and Japan were at war. What the Petrel did until peace was declared, and afterwards, is interesting as a narrative, but it throws no new light on Emory. He always did the right thing, as anyone who knew him would have predicted.
His subsequent career as captain and rear admiral, while honorable in every way and of unusual interest, tells us nothing new of the character, the professional and personal qualities, he had already made known to his contemporaries. A young officer can do no better than to read this book attentively and so, in an emergency, be in a position to answer the question, “What would Admiral Emory have done in my place?” In view of what I have written, can anyone wonder that I should have once said, “If I ever find myself in a tight fix, I hope that Bill Emory will be alongside of me?”