QUOTING the British position set forth in paragraph thirty-two of the note sent August n, 1923, by His Majesty’s Government to the Government of France declaring that “the Franco-Belgian action in occupying the Ruhr, quite apart from the question of expediency, was not authorized by the treaty” and “refusing to acknowledge the legality of the occupation,” that entertaining and energetic prophet of economic consequences, Mr. John Maynard Keynes, remarks that the occupation is “a lawless act of war.”1 The Reparations Commission can only interpret the treaty when the opinion of its membership is unanimous, as it of course was not in this instance. Mr. Keynes has also suggested that: “It is still competent for either the council or the assembly of the League to refer any question to the Permanent Court of International Justice for advice and opinion. In the event of the arbitral courts supporting the opinion of the law officers of the British Crown, the occupation becomes an act of war.”2
Implicit in these suggestions there is the possibility of adopting a means or utilizing means already existing to determine whether or not a war exists. The importance and value of such a determination must be evident to any lawyer dealing with international affairs. Innumerable questions as to the status of property or the rights of individuals depend upon the existence or the non-existence of a war or a state of war. In the past, uncertainties in these matters have been such that an American writer could properly remark:
Battles may be fought, vessels captured and commerce embargoed without war, and on the other hand war may exist without a gun fired or a vessel captured, or a trade route disturbed.’3
That such is actually the case may be seen by a very ready reference to the armed hostilities between the United States and France between 1798 and 1800. “At the close of the eighteenth century,” said Senator Lodge in the Senate, February 29, 1912, “France was seizing our merchant vessels, and the quarrel growing out of these seizures and out of our acceptance of the Jay Treaty was bitter in the extreme. Actual, though not declared, war existed. We retaliated on French merchant ships and privateers. In 1798 we abrogated all the French treaties. There were two frigate actions in which we were victorious, in one instance capturing the French man-of-war, and we raised a provisional army with Washington in command in order to be ready for a French invasion.”4 The Attorney-General opined that a maritime war existed, authorized by both nations, although neither side declared actual war.5 Though Washington spoke of the French “war upon our defenceless commerce”6 and the Supreme Court animadverted about “a limited war” the “limited state of hostilities”7 there was little doubt in the mind of the Navy about the existence of a war. The only doubt was in the legal mind as to what the courts should call a conflict for which Congress had not exercised its exclusive power to declare war.
Then we see that we were “at war” with Germany for years prior to the formal Congressional declaration in 1917. On April 2, 1917, President Wilson told Congress that Germany had been conducting “a war against all nations” and asked that body to declare the acts of Germany “nothing less than war against the government and people of the United States.” Yet, in an absolute sense he did not deem war already to exist, but rather merely an “armed neutrality” which would “draw us into war.'”8 On April 6, 1917, Congress announced “the state of war .... thrust upon the United States .... formally declared.”9 On these facts an international body has spoken of the time between August 1, 1914 and April 5, 1917, as “the period of neutrality” and of the time after April 6, 1917, as “the period of belligerency” and of these two combined as “the war period.”10 Yet, the same body has prepared to require Germany to satisfy the United States for losses, damages, or injuries to American nationals “during the war period.”11 As far as American claims against Germany are concerned, the dates are settled by the decision of this international commission. As far as American municipal law is concerned with rights and property of American nationals, the joint resolution of March 3, 1921, terminated the war period which the Congressional announcement of April 6, 1917, started.12 But may there not also be neutrals or German nationals for whom the question needs still to be answered? For them a truly international valid determination of the time of existence and of non-existence of an American-German war might be of value.
It is very necessary that the existence of war be known as a fact. An enemy alien may not inherit property during a war, unless saved by a liberal interpretation of treaty and circumstances.13 Under the laws of belligerent occupation, the occupant may collect taxes, or not, at his pleasure, and his acts have the same validity as those of the permanent sovereign.14 The existing government of a jurisdiction has definite powers and its acts must be respected as governmental acts. And the entire question as to whether or not certain acts may be judicially recognized as governmental acts is often involved in the problem as to whether or not there is a war, and whether or not the de jure government is simply resisting revolution or external aggression or is for the time being supplanted by a de facto government, established by revolution or by belligerent occupation—this entire question is dependent upon whether or not there is a war, that is, a war legally recognized. The individual courts before which causes may be brought are frequently powerless to determine for themselves. They do not determine for themselves, they simply follow the determinations made by others. As the United States Supreme Court has remarked:
Who is the sovereign de facto or de jure of a territory is not a judicial, but is a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subjects of that government.“
Two interesting cases will show some of the difficulties that arise in such circumstances. During the American Civil War, which has been generally spoken of as the “War of the Rebellion” the idea of the Union and the Federal Government was never relinquished. Yet the Supreme Court of the United States recognized this “military representative of the insurrection” as a de facto government, as “a government of paramount force.”16 During that war, as General Sherman later remarked, the Supreme Court was impotent in the rebellious districts; its “decrees and writs were treated with contempt south of the Potomac and Ohio” and it “could not summon a witness or send a deputy marshal.”17 It was a civil war, and yet during this struggle the United States not only recognized the insurgents as lawful belligerents but even, against such insurgents, for the first time in the history of the world attempted a complete and humane codification of the laws of war on land.18 The object of that conflict was “the overthrow of the insurgent organization, the suppression of insurrection, and the reestablishment of legitimate authority.”10 In spite of this, the military organization of the Confederacy was looked upon as a de facto government! It was an insurrection and a rebellion, from the standpoint of politics and constitutional law; and yet its management of internal affairs within its own boundaries was accepted as valid. This is not to say that the Confederate States of America were ever “recognized” as such by the Federal Government of the United States of America. On April 14,1861, Bragg wrote to Captain Adams of the Navy at Pensacola: “Your communication of yesterday’s date, announcing to me an act of aggressive war on the part of your Government by the blockade of this port, I accept as such, and consider it a virtual acknowledgment of our national existence and independence.”20 Of course the quarrelsome Bragg was simply trying to pick another row. The Confederates were recognized as formal and organized belligerents, not as a nation.
During the Boer War in South Africa, when officers of the South African Republic confiscated property, their act was considered illegal and was not admitted to be the act of a de facto government, which it clearly was, since the conquering forces had not even entered the region where the property was situated. But, by proclamation, the British Government had announced the annexation of this region, and the British Court was bound by the political pronouncements of the British Crown.21
Truly it would be of great advantage to have an international means of establishing the existence or non-existence of war, the existence or non-existence of a de facto government. Is it or is it not true that in going into the Ruhr the French committed an act of hostility? Premier Poincare denied it.22 Germany feels that they did. Belgium says they did not. Britain believes they did. And there you are! In the meanwhile, the separate courts of the separate countries will determine causes connected with the occupation in separate ways, because each separate municipal law will be determined by the separate political pronouncements of the separate countries. Is it or is it not true that in shelling and seizing Corfu, Italy was waging war on Greece? The Italian military was in control. The Italian military governor divided the island into zones and Italian military men presided over them. Arrests were made. Commerce was regulated. Foreign consuls were formally notified of restrictions in force.23 And yet Signor Salandra told the League council that the occupation of Corfu was not an act of war.24 And there you are again. The question as to whether or not it was a war will be determined uni-laterally only. No bi-lateral or multi-lateral determination will be made. Until matters of this sort can be determined internationally, and the international determination accepted as binding upon the various municipal jurisdictions, every such conflict of arms will also involve a conflict of laws.
Of course the entire problem is obviated if both nations declare war, for there is then that political pronouncement upon which the courts may depend. It is partially obviated if one of the nations declares war, obviated at least for the nationals of that nation who may appear before its courts. But the entire problem is present when there are hostilities without any declaration of war on either side. There have been many such occasions, a large number of which have been covered in Maurice’s compilation of instances of Hostilities without Declaration of War. (1881) In our own history we have the interesting case of the Caroline, a ship manned by insurgents committing acts of war against British Canada in 1837 and attacked by armed men from across the international boundary. When one of the attacking force was tried for murder in New York State, the state courts refused to recognize him as a member of authorized belligerent forces.25 The defendant escaped punishment by means of an alibi; but the municipal law would have punished him. But, thereafter, in an attempt to prevent municipal laws in future running counter to similar avowed national acts, legislation was enacted by Congress to bring such prisoners into Federal courts.26 In its last analysis here was an invasion into American territory by an armed British force whose acts were upheld by the British Government, yet no one has yet spoken of the “War of 1837”27
Somewhat similar to this situation is that which arose from time to time concerning the Mexican border, by which bands of marauding Indians, which ever side of the frontier might be their point of origin, were to be pursued, even across international boundaries.28 Somewhat of a precedent, this, for the pursuit by Pershing with orders to get Villa in 1916.29 The invasions were not directed against the de jure governments, but against lawless elements which, it was assumed, the de jure government could not restrain. Indeed, the invasions were predicated upon the assumption that the de jure governments in the areas invaded were practically nonexistent, or at least powerless. There was a somewhat different state of affairs three years later:
In the course of an attack upon the city of Juarez, Mexico, on June 15 and 16, 1919, by a force of Mexican insurgents under Francisco Villa, shots were fired across the border into El Paso, Texas, two enlisted men and two civilians being killed and six enlisted men and four civilians being wounded [all Americans]. American forces crossed the Rio Grande into Mexico on June 15, drove the Villista forces from Juarez, and after pursuing them for a distance of approximately fifteen miles and completely dispersing them, returned to the United States on June 16. In the course of the pursuit four enlisted men were wounded. The casualties suffered by the Villista forces are not definitely known, but thirty bodies were found in the entrenchments near the race track at Juarez after the American attack and fifteen others in a camp about six miles north of Zaragoza following its capture by our troops; fifteen Villistas were taken prisoner."30
Federal Mexican troops were on hand. They were engaged in a campaign against the Villista rebels. In came the Americans and drove away the rebel party. From the standpoint of sovereign dignity and of the limits of national jurisdiction, several questions might be raised. But the question here is whether or not this was a war in the legal sense as affecting the individuals. Suppose the property of an American citizen in Mexico had been destroyed by the American forces during the operations on the score of military necessity. Could there not have been another Mitchell v. Harmony case?31 And the commander could not even have been able to plead instant necessity in operations of war if there was no war. The political departments of the governments of Mexico and the United States did not call this affray a war between Mexico and the United States. Yet all the essential facts might have been entirely those of war.
In 1852, the U.S.S. Cyane appeared at Greytown, Nicaragua, reiterated demands for satisfaction already made by American residents against the officials of the town and, failing to secure satisfaction, completed its threat of bombarding the city of Greytown until shot and shell had accomplished “the almost total destruction of the buildings.”32 The theory underlying this assault was, perhaps, similar to that of 1919 against the Mexican bandits. That is, unless President Pierce’s explanation was a rationalized ex post facto affair. He said that this community, well provided with ordnance, small arms, and ammunition, not professing to belong to any regular government, and not standing before the world in the attitude of an organized political society, “was, in fact, a marauding establishment too dangerous to be disregarded, and too guilty to pass unpunished.”33 In July, 1863, the U.S.S. Wyoming, attacked and sank Japanese ships in the Straits of Shimonseki, in retaliation for firing upon an American merchant vessel by shore batteries and an armed brig of the Prince of Nagato. Five men were killed on board the Wyoming, and six wounded. But the Prince of Nagato was a semi brigand, in revolt against the proper government of Japan, and Japan even went so far —instead of resenting the fracas—as to pay indemnity to the American Government for the attack on the merchant ship and the trouble caused the Wyoming.
In 1900, a cavalry private in a United States regiment ordered to Pekin to assist in the protection of the foreign legations and the suppression of the “Boxer Uprising” or the “Boxer Rebellion” in China, shot and killed a fellow soldier, and was tried and convicted by a court-martial. He applied for a writ of habeas corpus on the plea that there was then neither the war, insurrection, nor rebellion required by the American articles of war before the court-martial could assume jurisdiction in such a case. It was held that, as far as American forces in China were concerned, a condition of war existed. Internationally there was no war, there was merely the protection of legations against rebel “Boxers” and yet under the municipal jurisdiction there was a war.34 The decision was largely based upon principles of expediency. The court pointed out that the Chinese authorities had no jurisdiction over an American Army operating in China35 and that American military courts-martial alone were able to deal with offenses by American soldiers; and further argued that national use of force created a state of war36 as far as soldiers of that government are concerned, thus basing its opinion purely upon considerations of municipal law and particularly upon a military interpretation of military court-martial law under the Articles of War.
At almost the same time, a similar case arose in Cuba, where after the conclusion of the Treaty of Peace with Spain37 an American artillery private committed homicide, the victim being a teamster in the American military service. The question was raised if he should be tried by court-martial or by military commission, or delivered to the Cuban courts for trial. The Attorney General advised the Secretary of War on April 28, 1900, that the current situation of affairs in Cuba was not the “war, insurrection, or rebellion” contemplated by the 58th Article of War and that neither court-martial nor military commission could try him.38 He also added that there was no necessity of turning him over to the Cuban courts though it was nevertheless “proper to permit such courts to try him.” Here, then, we see an American army in foreign territory, forming forces of occupation for the establishment of government and the maintenance of law and order, not extremely unlike the situation in China, and yet—for purposes of its own military administration, and under its own municipal law—unwilling to call the occupation a condition of war.
In seeking to resolve the conflicting points of view on this question we come to the old problem of the relation of international to municipal law.39 It has been said:
It is the well-settled law that the existence of a condition of war must be determined by the political department of the government; that the courts take judicial notice of such determination and are bound thereby."
In the case of the Caroline, in the case of the pursuit of Indian marauders across the Mexican frontier, in the cases of the Juarez engagement, the Boxer Rebellion, and the Cuban occupation, no war was declared by the political department of our government. Did war exist? Did the absence of a declaration prevent the existence of a legal war? Is a declaration necessary? It has been said that in the case of a defensive war, no declaration is necessary.41 Without the qualification as to defensive character, it has been remarked that “war may exist without a declaration on either side.”42 For certain purposes the Franco-American imbroglio of 1797-1800 has been considered a war.45 A Presidential proclamation of blockade has been called “official and conclusive evidence .... that a state of war existed.”44 If the remark of Secretary of State Hughes at Minneapolis, that “resistance by force means war,”45 is to be taken as a political interpretation of causes and effects rather than a legal interpretation of a condition, there is still pertinent doctrine in the following opinion:
The practice of a formal proclamation before recognizing an existing war and capturing enemy’s property has fallen into disuse in modern times, and actual hostilities may determine the date of commencement of war, although no proclamation may have been issued, no declaration made, or no action by the legislative department of the government made."46
It is believed that the modern democratic forms of representative government have much to do with present doctrine on this subject. Modem governments depend upon popular support. When they wish to wage war, they must be able to count upon the whole hearted aid of the entire population.47 In order to make the instant war appear a just war, they call it a defensive war. They claim to have been attacked. They claim that war was unavoidable, that it existed by the acts of their opponents. A paragraph from the pen of Albert J. Beveridge illustrates this line of thought; as set forth for popular consumption:
America makes war when attacked, not otherwise. Congress, the only agency that can plunge America into war, solemnly declared that we made war upon Germany because Germany had been and was making war on us."48
The words may be political, rather than legal. They may be the phrasing of popular interpretation rather than of sober history. Yet it is nevertheless true that “if we are to judge of the terms of the initiating act of Congress, .... all of the foreign wars to which the United States has been a party” have been recognized in our municipal law by “not declarations of war, but recognitions of war.”49
On June 1, 1812, Madison told Congress that there existed “on the side of Great Britain a state of war against the United States, and on the side of the United States a state of peace toward Great Britain.”50 On June 18th of the same year Congress enacted “that war be and the same is hereby declared to exist .... and that the President is hereby authorized to use the whole land and naval force .... to carry the same into effect.”51 The British Government issued an order of embargo and detention against American vessels on July 31, and when it was found that the United States would not suspend hostilities, followed this up with a declaration of war.52 Under British law, when did this war commence? Under American law, when? On the purely political aspects of the case as touched upon in propaganda or in history, the judicial power will not extend. But if a court had to adjudicate personal and property rights under peace or war conditions, where its power does extend,53 a settled date would be eminently proper.
In 1846 a territorial dispute over a boundary line between Mexico and Texas was followed by the moving of American troops from Corpus Christi to the left bank of the Rio Grande, by a protest from a Mexican commander, by a few skirmishes. The battles of Palo Alto and Resaca de la Palma were fought.54 Then, after these events, in fact in the process of reporting these events to Congress, President Polk declared: “War exists.”55 As far as political interpretation is concerned, we have his explanation that the war existed “by the act of Mexico herself” and the declaration of a British publicist that “The United States began war with .... Mexico in 1846, without either notice or manifesto.”56 At any rate, Congress obligingly declared or recognized that “by the act of the Republic of Mexico, a state of war exists between that government and the United States.”57 When did this war start? Under American law? Under Mexican law?
On April 20, 1898, a joint congressional resolution demanded that Spain “relinquish its authority and government in the Island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters” and directed and empowered the President of the United States to use land and naval forces and militia to enforce this relinquishment.58 The following day the President proclaimed a blockade. On April 23 the Queen Regent of Spain speaks of “the state of war existing between Spain and the United States.” On the twenty-fifth Congress declared a state of war to exist and to have existed since the twenty-first of the month.59 The Supreme Court of the United States has held that “war existed on April 21, 1898 .... although the formal decree by Spain, and the declaration of war by Congress, were not made until afterwards.”60 Here is a succession of dates and retroactive proclamations. Politically, what caused the war? The joint resolution, the Spanish note accepting the resolution as a declaration of war, or the blockade effective on the twenty- second? As far as the United States municipal law was concerned, the war started April 21. But it was only on April 23 that the Queen Regent announced that the “state of war” then existing terminated “the treaty of peace and friendship of October 27, 1795, the protocol of January 12, 1877, and all other agreements, compacts, and conventions that had been in force.” Surely an international determination of these matters might be useful, and the common practice of political strategy in not declaring war, but only recognizing it may lead to difficulties and really unjust, though legal, conflicts.
We have seen that it was not considered necessary to declare war against marauding Indians, or against Mexican revolutionaries, or Chinese “Boxer” rebels, for it would indeed have been an undignified thing for one country to declare war against irresponsible parties and persons within the territories of another. We have seen that war has existed before declarations of war were made, and that this very existence has been recognized by those very declarations assuming the state of war already to be in existence and needing no declaration but merely recognition. We have still a further group of incidents to consider, incidents which concern nations and not merely marauders within nations, incidents which concern wars which, for one reason or another were never declared.
In 1898, when it was a question of the United States fleet and the Cuban coast,61 and in 1861, when it was a question of the United States fleet and the Confederate ports,62 the initiation of a blockade was the initiation of war. It has been said that:
The war between France and Mexico in 1838, beginning in a blockade instituted by the former country which the latter chose to consider an act of hostility, forms an exact parallel in its mode of commencement to many of the wars of the past century.”63
And why should not a blockade be a part of war, and not at all that contradictory and anomalous thing it has sometimes been called, “a pacific blockade.” In a blockade, by the use of might a nation seeks to enforce its right. If a legal use of such force was for purposes of municipal law considered a war during the Boxer Rebellion in China64 it certainly appears that a blockade requires a legal presumption that war exists even more than an invasion. The invasion usually permits trade to continue, permits neutrals to maintain their commercial relations with the occupied territory. But a blockade cuts off trade. The so-called “pacific blockade” interrupts the business of neutrals with the same certainty and by the same means as does a belligerent blockade. This is the major question which all wars raise in these days of modern world commerce, the question of effective blockade, of contraband, of trade. All neutrals have a common cause against the restrictions imposed by belligerents. They combat the restrictions very strenuously if they happen to be trading nations. Bearing this point in mind, and bearing in mind also that blockades are frequently instituted as reprisals against states which mistreat nationals of the state which imposes the blockade, it is interesting to turn to an incident in South American history.
Incited by the mysterious death of a French lithographer, France protested against the policy of Rosas who compelled her citizens residing in Argentine to serve in his army. In March, 1838, having failed to obtain satisfaction from the Dictator’s secretary of foreign relations, the French consul announced that the coast of Argentine was blockaded; and, in conjunction with Riviera and Argentine exiles, a French admiral took possession of the island of Martin Garcia. Early in 1843, with the help of Rosas, General Oribe invested Montevideo, which provoked a protest to the Argentine Dictator from the governments of France and England. As Dictator Carlos Lopez of Paraguay had made an alliance with the governor of the Argentine province of Corrientes against Rosas, in retaliation the latter laid an embargo upon all commerce with that province or with Paraguay. In April, 1845, the English and French fleets blockaded the Rio de la Plata; Anglo-French forces were stationed at Montevideo and other points in Uraguay; and they tried to open the Parana River to navigation by foreign vessels."65
Were not Great Britain and France at war with Argentine at this time? In 1846 Lord Palmerston said:
The real truth is, though we had better keep the fact to ourselves, that the French and English blockade of the Plata has been from first to last illegal. Peel and Aberdeen have always declared that we have not been at war with Rosas; but blockade is a belligerent right, and unless you are at war with a state you have no right to prevent ships of other states from communicating with the ports of that state .... nay, you cannot prevent your own merchant ships from doing so."66
Yet we can come nearer home than that. In the spring of 1818, while Spain still held Pensacola, Florida, and General Jackson was prosecuting the Seminole War, that American officer crossed the Spanish frontier. He had reason to believe that the Indians were operating from Spanish military posts, if not actually receiving aid from those posts. Accordingly he occupied the fortress of St. Marks, took the fort of St. Michael against what was spoken of as “only a show of resistance,” and then besieged and captured Fort Barrancas which made a spirited resistance. The United States ordered the captured places evacuated, assumed responsibility for General Jackson’s acts, and agreed to make satisfaction for injuries suffered by Spanish officers and inhabitants in the course of the plunder and destruction that took place. It is to be noted that these forts were manned by Spaniards, not by Seminole Indians, and that these operations were said to have been instituted “Not in a spirit of hostility to Spain, but as a necessary measure of self-defense.”67 Was this a war?
In April, 1914, marines and sailors of the American navy landed at Vera Cruz, Mexico, and going beyond the first intention of seizing the customs house, fought through the town until they had captured the whole of it from Mexican troops. A regular army detachment took it over from them, and until November 23,1914, Vera Cruz was under American military occupation. There were killed and wounded on both sides. The incident had all the material aspects of a war.68 Was this a war? The Mexicans thought it was. On April 23, when the Mexican government handed the American diplomatic representative his passports, he was told:
According to international law, the acts of the armed forces of the United States .... must be considered as an initiation of war against Mexico.69
But the Americans did not think so. The American people did not wish a war with Mexico. Mexico was not strong enough to make actual war upon us, though her nationals did harry the border for a considerable time and required strong border patrols, and the entire series of events do not constitute a war.70
Then we have the case of Santo Domingo. By a valid bi-lateral agreement between that country and the United States signed February 8, 1907,71 our control extended to the customs houses.
American battleships entered the roadstead of Santo Domingo City, and under cover of a score or more of long-range, big-caliber guns the American admiral {sic), with a large force of marines landed on Dominican territory…President Henriquez refused to accept the demands of the American admiral [to sign a certain treaty], whereupon the admiral, acting, of course, under orders from Washington, proceeded to use pressure and force. One of his first acts was to issue a proclamation of occupation.72
By this proclamation, dated November 29, 1916, Santo Domingo was “placed in a state of military occupation, .... subject to military government and to the exercise of military law applicable to such occupation.”73 The landing was characterized by Mr. Horace G. Knowles, representative of the deposed Dominican government as “a paramount act of war.”74 There was opposition to the marines when they entered the country.75 There were skirmishes, and wounds, and the use of armed force both potential and actual. Neither by previous treaty, convention, nor agreement had the Dominican Republic granted any such extensive right of invasion.76 Was this a war? And if it was not a war, was it prevented from being a war simply and solely by the fact that Santo Domingo was not strong enough, in men, money, or materials, to make it a war against a powerful nation like the United States? If it is true, as Mr. Hughes says, that “resistance by force means war,” there was resistance in Santo Domingo as well as there was by Mexicans at Vera Cruz, Carrizal, and Parral. Yet the resistance was not sustained or well-organized. It was not even as effective a resistance as was that which the Boers opposed to the British after the proclamation of annexation. The Philippine insurrection was considered sufficiently a war for the United States Supreme Court to grant to its representatives the character of officials in a de facto government collecting customs duties at Cebu.77
The whole question comes down to a matter of intent of the attacking nation, to the intent which its political leaders are willing to express publicly and openly, so that it may be a guide to its courts. “War is self-evident,” says H. Erie Richards.78 Is it? The present survey does not seem to have proved that it is. We have seen hostilities that were not deemed to constitute a war. We have seen the United States go to war with Germany on April 6, 1917, and the first American soldiers go into the front line against their enemies in November of the same year, the first offensive operation against German troops conducted in May of the following year. We have seen a coastal blockade of Southern ports by United States vessels accepted as “official and conclusive evidence” that a war existed. We have seen British statesmen blockading the Plata and insisting their country not to be at war with Argentine. We have seen the nation refusing to consider the China expedition of 1900 a war-time expedition and the courts of the nation determining that for certain purposes it was a war. We have seen Spain accepting a joint congressional resolution as a declaration of war and the United States acquiescing and declaring a state of war to have existed from the date of that resolution and the activities it authorized. And on the other hand we have seen Mexico announcing an occupation of its territory to amount to an initiation of war, and the United States refusing to consider it as such. With such a confusion and multiplicity of precedents and opinions, we are ready to attack the problem of the occupation of the Ruhr, which Poincare insisted was not an act of hostility.79
It was not an occupation under the treaty by virtue of the authority of the Reparations Commission, for it went beyond the area specified by the treaty which can only be interpreted unanimously by that commission. And it has not been so interpreted. In the meanwhile the columns of horizon blue marched along the roads of Germany. Industries and railroads and city administrations were controlled as during any belligerent occupation. A German was executed for sabotage on railroads, executed by the French, by order of a French court-martial, and for espionage against the French.80 A German was sentenced to death by a French court-martial for attacks upon French troops.81 A German business man sentenced by a French court-martial for obstructing proceedings pleaded that the court- martial was incompetent and on appeal to the French Court of Cessation quite naturally failed to secure a reversal.82 The French disbanded most of the local police in Dusseldorf and patrolled the streets with their own cavalry and tanks.83 Citations and decorations, in form and substance the same as those issued during the World War, were given French soldiers for conduct during the occupation activities in the Ruhr.84 Was this war, or was it not? Was this military government, military occupation, hostile occupation, or belligerent occupation ? Was the administration there de facto or was it de jure? Was the occupation valid under the treaty? Were the directions from Paris or from Berlin to be followed? As a political question, it really makes no difference except to enthusiastic nationalistic historians and arduous propagandists. As a question that may come before the courts with regard to personal rights or property rights, it is a distinctly legal question. Its solution should not depend upon partisan pronouncements made for political effect. Its solution should depend upon the facts and upon the law. Nothing would be more appropriate than for this occupation, for any occupation by any country anywhere, for any forceful measures undertaken for any purpose or by any nation, to be submitted to a competent international tribune, not for vindication of policy but for the determination of fact. War which writes its material existence so vividly in gunfire and colored uniform across a countryside, so seldom writes its legal existence or nonexistence in unequivocable language for the guidance of courts. International animosity would-be aroused by deciding (as a Treaty of Versailles tried to decide) responsibility for war. International uniformity would be advanced by deciding upon criteria to determine the mere existence of war. The precedents and opinions are as contradictory as they are numerous. No single person should attempt to decide such a question. It is, however, deemed eminently desirable that whatever international tribunal we may now have or may in the future create should decide each such question that may arise in the future.
1 New York World, August 23, 1923, page 11.
2 New Republic, XXXVI, 9, Aug. 29, 1923.
3 Quincy Wright, Control of American Foreign Relations, p. 284, citing The Three Friends, 166 U.S.I.; and The Prize Case, 2 Black 635, J. Nelson dissenting, 690.
4 Congressional Record of that date; also Compilation of Treaties, 1921, Sen. Doc. No. 72, 67th Cong., 1st Sess., pp. 188-189.
5 I Ops. Atty. Gen. 84.
6 Annals, 5th Cong. 622.
7 Bas. v. Tingy, 4 Dallas 37; The Charming Betsy, 2 Cranch 64; Talbot v. Seeman, 1 Cranch 1, 28; Moore, Digest of International Law, vii, 157.
8 Robinson and West, Foreign Policy of Woodrow Wilson, pp. 384, 385.
9 Wright, op. cit., p. 289; 40 Stat. 1.
10 Mixed Claims Commission, United States and Germany, Administrative Decision No. 1, November 1, 1923, p. 1.
11 Ibid., p. 2; same commission, Administrative Decision No. 2, November 1, 1923, p. 12.
12 41 Stat. 1359-
13 Techt v. Hughes, 229 N.Y. 222.
14 U.S. v. Rice, 4 Wheat. 2461
15 Jones v. U.S., 137 U.S. 202, 212, cited with approval in Oetjen v. Central Leather Co., 246 U.S. 297; Ricaud v. American Metal Co., 246 U.S. 304. Cf. also the important examples in Luther v. Sagor, L. R. [1921] 1 K. B. 456 and Ibid., L. R. [1921] 3 K. B. 532.
16 Thorington v. Smith, 8 Wall. 1.
17 Letter to General Meigs, quoted by Rear Admiral W. L. Rodgers, Aug. 2, 1923, Williamstown Institute of Politics.
18 T. E. Holland, Letters on War and Neutrality, 3rd ed. 1921, p. 23.
19 The Grapeshot 9 Wall. 129.
20 Don C. Seitz, Braxton Bragg, p. 38.
21 Van Deventer v. Hancke, Transvaal L. R. [1903] Supreme Ct. 401; see also Mighell v. Sultan of Johore, L. R. [1894] 1 Q.B. 149; Jager v. Atty. Gen. Natal. L. R. 1907, Appendix, 326; and F. Despagnet, La Guerre Sud-Africaine, p. 213-214. See contra, MacLeod v. U.S., 229 U.S. 416.
22 Reply to Great Britain, in New York Times, August 23, 1923.
23 New York Times, September 4, 1923.
24 New York Times, September 20, 1923.
25 People v. McLeod, 25 Wend. 483; Ibid., 26 Wend. 663, Appendix.
26 Moore, Digest of International Law, ii, 24-30, 409-414-
27 Cf. U.S. v. Tauscher, 233 Fed. 597, in which a bombing attempt against the Welland Canal was held “a military enterprise” even “though those composing it were not highly drilled soldiers.”
28 Moore, op. cit., ii, 418-425.
29 H. A. Smith, Military Government, pp. 74-75.
30 Report of the Adjutant General of the Army for the Fiscal Year ending June 30, 1919, pp. 30-
31I Blatchford (N.Y.) 549; 13 How. 115.
32 Moore, Digest of International Law, vii, 114.
33 Message of Dec. 4, 1854, in Richardson, Messages and Papers of the Presidents, v, 282; Moore, Digest of International Law, vii, 115.
34 Hamilton v. McClaughry, 136 Fed. 445.
35 Citing Coleman v. Tennessee, 97 U.S. 509; and Dow v. Johnson, 100 U.S. 158.
36 Citing The Prize Cases, 2 Black 635.
37 December, 1898, 30 Stat. 1754.
38 23 Ops. Atty. Gen. 120.
39 Westlake, International Law and Civil Law, in 22 Law Quarterly Review 14; The Paquette Habana, 175 U.S. 677.
40 Hamilton v. McClaughry, 136 Fed. 445, 449, citing U.S. v. 129 Packages, Fed. Case No. 15, 941; and Sutton v. Tiller, 98 Am. Dec. 471.
41 Bordwell, Laws of War, p. 200; Hall, International Law, 4th ed., p. 396, citing Bluntschli, sec. 521-522.
42 The Eliza Ann, 1 Dodson, 244.
43 Bas v. Tingy, 4 Dallas 37.
44 The Prize Cases, 2 Black 635
45 State Department press release, September S. 1923-
46 The Buena Ventura, 87, Fed. 927; Ibid., 175 U.S. 384.
47 J. F. C. Fuller, The Reformation of War, p. 112; Spenser Wilkinson, Government and the War, pp. 16, 80, 213; Woodrow Wilson, Address to his Fellow Countrymen, April 15, 1917, in Woodrow Wilson, In Our First Year of War, pp. 34 et seq.; Robinson and West, Foreign Policy of Woodrow Wilson, pp. 393-396; and J. B. Scott, Wilson’s Foreign Policy, pp. 288 et seq.
48 The Saturday Evening Post, November 17, 1923, P- 4-
49 Quincy Wright, Control of American Foreign Relations, p. 286.
50 Richardson, Messages and Papers, i, 504
51 2 Stat. 755.
52 Moore, Digest of International Law, vii, 169; The Eliza Ann, 1 Dodson 244; Annual Register, lv, 393-
53 Willoughby, International Law and Civil Law, 2 Amcr. Jour. Int. Law 357.
54 The Prize Cases, 2 Black 635,668; J. H. Smith, The War With Mexico, i, 155, 181-183.
55 Richardson, Messages and Papers, iv, 442.
56 Hall, International Law, 4th ed., p. 398
57 Act of May 13, 1846, 9 Stat. 9.
58 30 Stat. 738.
59 30 Stat. 364.
60 The Pedro, 175 U.S. 354; Moore, Digest of International Law, vii, 170-171.
61 The Pedro, 175 U.S. 354.
62 The Prize Cases, 2 Black 635.
63 Hall, International Lazo, 4th ed., p. 398.
64 Hamilton v. McClaughry, 136 Fed. 445.
65 W. S. Robertson, History of the Latin-Ameri~ can Nations, p. 234.
66 Hall, International Law, 4th ed., p. 388; Lord Dalling, Life of Lord Palmerston, iii, 327.
67 Moore, Digest of International Law, ii, 403- 406; J. S. Bassett, Life of Andrew Jackson, pp. 252-253; Rowland, Jackson’s Campaign Against the British, pp. 222-232 and 248-253.
68 H. A. Smith, Military Government, pp. 64- 74; Report of the Adjutant General of the Army for 1914, p. 43; Ibid., for 1915, p. 46.
69 American Year Book, 1914, p. 235.
70 E. Colby, United States Paramount in the Caribbean, in Current History, November, 1923, xix, 270.
71 35 Stat. 188
72 Select Committee on Haiti and Santo Domingo, United States Senate, 67th Congress, 1st Session, August 5, 1921. Part I. Hearings, p. 49.
73 Ibid., pp. 52, 93, 957, 975.
74 Ibid., p. 49.
75 Ibid., p. 1325.
76 Current History, articles by E. Colby, xii, 952; by Samuel Guy Inman, xii, pt. I, p. 501; by E. Colby, xiii, pt. II, p. 44; and by E. Colby, xix, 270-271: Inman, Problems in Pan-Americanism, pp. 282-290.
77 MacLeod v. U.S., 229 U.S. 416.
78 18 Law Quarterly Review 142.
79 Reply to Britain, New York Times, August 23, 1923.
80 New York Times, May 27, 1923
81 Washington Post, September 9, 1923.
82 New York Times, August 10, 1923; Washington Post, August 10, 1923, Associated Press dispatch.
83 Washington Star, October 14, 1923, Associated
84 New York Tribune, August 12, 1923.