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tested against the transfer to the American flag of the German liners which, at the outbreak of war, were bottled up in ports of the United States; and, if finally the transfer is permitted, it will be a deliberate waiving of belligerent rights granted out of regard to the innocent purposes for which the Americans propose to apply the acquired vessels.
Finally, attention may be directed to an instructive prize decision which partly turned on the question of transfer immediately prior to war from a belligerent to a neutral flag (The Tommi and The Rothersand). The case concerned two vessels seized in the port of London on August 5th when they were flying the German flag; but it was urged that they should be released because of an alleged transfer made four days previously from their former German owners to an English company. This transfer had been made by telegram while the vessels were on their voyage from Germany to England. In refusing to recognize the transfer the Prize Court judge said:
There are three heads under which the case can be considered. First, whatever may be the result properly to be attributed to this alleged transfer, it is said the vessel was sailing under the German flag on August 5, and that therefore the German flag proves her nationality, and she must therefore be taken to be German and subject to seizure by this country on August 5. It is perfectly clear that if a ship does sail under a particular flag, unless there are very special reasons, she enjoys the protection of the country whose flag she flies, and she is regarded as belonging to the State whose flag she carries. Mr. Laing said there was a distinction to draw in considering this part of the case between a capture at sea and seizure in port. It does not matter in the slightest degree whether the flag was actually flying and hoisted at the mast. The question is what flag she was entitled to fly, and in my view there is no distinction upon this part of the case between a ship captured at sea and a ship seized in port.
Therefore if there were no other point in the case, I think the fact that the vessel was flying the German flag is enough to entitle her to be regarded as the subject of capture. The second question is whether this transfer was valid, and I have come to the conclusion, clearly, for the purpose of the Prize Court, that this transfer was not a valid transfer at all.
It was hardly more than this: “We understand you over there, and you understand us over here; our companies are mutually connected. We in Germany own nine-tenths of the shares in the British company; if war breaks out whoever the belligerent is, let this ship be called a British ship." I think that is the real substance of the transaction. Apart from that, much more is needed to transfer a vessel in transit when war has been declared or even when war is imminent than was done in this particular case.
If I have stated the correct principles to apply I need not go into the details of the case to point out that nothing was arranged as to when the purchase money was to be paid, as to when the completion was to take place, or that it is not shown that any satisfactory arrangement was made by the British company that they and not the person who is said to have bought the vessels should become the purchasers. Apart from the Declaration of London (Articles 55 and 56), and whatever alteration that may make in the law, it cannot be said that the artificial periods of time for the transfer of vessels agreed upon by the various nations can be found in any decision of any particular Prize Court belonging to any country. They are convenient, but I refer to Articles 55 and 56 to show (1) that the basis of the whole thing must be that the transfer was not made to avoid the consequences to which the enemy vessel supposed to be transferred might be exposed by the action of any belligerent, and (2) that in any event, even after a lapse of time like 30 days, the transaction must have been completed, not merely by letters or telegrams passing, but by the execution of the formal documents necessary to complete the title. In this case there is an absence of any such documents. I have come to the conclusion, therefore, without any doubt that this alleged transfer was not valid.
THE ORGANIZATION OF INTERNATIONAL FORCE
Introductory. At this time nearly all serious minds are preoccupied with the problem how, after the European war, peace may be most effectively promoted and maintained. Thoughts are turned toward the question what is the best international system for the sustenance of higher international justice a revitalized Concert of Europe, or of the world, or some new application of the "balance of power" principle. There are those who consider the “balance of power" doctrine to have outlived its usefulness, and to have shown itself productive of mischief; others would retain or reconstruct existing alliances in a form more efficacious for the preservation of international peace. Statesmanship will have to face many other difficult problems of international relationship after the war, and internationalists will be impelled to give a greatly increased share of their attention to the sanctions of international law and to the political conditions essential to its maintenance and development. Such questions call for an understanding of aspects of the life of the international community that are now much more strongly accentuated than they were before the war, and that can scarcely fail to attract scientific study to factors in the general situation the importance of which till recently was underrated. These practical problems demand in some degree philosophical study of the structure of the international community; as pure science precedes applied science, the communal life of States must be analyzed before light can be thrown on the issues of practical statecraft. The question how international force is to be organized, so as to render most effective aid to the cause of justice, presupposes for its satisfactory solution an inquiry into the actual constitution of the international society. States, moreover, can wisely order their future only by acting with full knowledge of the lessons of history. The interpretation of history is a necessary point of departure for the statesman and the publicist, if they are to offer sound proposals for practical action. But one is powerless to extract any meaning from history without understanding the social processes of which conspicuous historical events are but the surface manifestations. One must read history in the light of political science to grasp its meaning. Thus we are led inevitably, as a preliminary to any practical program, or to any interpretation of recent history, to the task of surveying the actual distribution, transformation, and organization of international force, and of stating in analytical terms the relation between these processes and the maintenance of international right—that is, order and justice. The conceptions of international force and of international power are so closely related as to be almost identical, but in this investigation we prefer the concept of force as something more positive and more tangible than power, which is latent force, or that which may develop actual force. For this reason the propositions here elaborated apply equally to the organization of international power—to the establishment of that authority through which the supremacy of law is effectuated and secured.
The Relation of Force to Right. It is as true of international law as of other law that force is necessary as a means to the establishment of social order.
Stammler, even if his main positions cannot be accepted unreservedly, has the merit of having shown, with admirable clearness, the necessity for force as a means to the maintenance of right. His idealism consequently does not suffer from that undervaluation of mechanical conceptions, that anti-positivistic tendency, which has deprived idealistic interpretations of law, as a whole, of fruitfulness. His view is thus summed up by Dr. Berolzheimer:
Convention makes its appeal to the individual. Those who conform to it do so of their own accord. If social life were organized exclusively upon the basis of convention, it would affect only "certain men with certain qualifications." Hence convention does not account for the
' entire range of social life. "Convention alone cannot produce an orderly social life or even approximate it.” Legal coercion alone has within it the capacity to regulate all phases of social life; and therein lies its justification—"as a necessary means to the establishment of the principle of order in the social life of man.” 1 This argument, which applies to legal coercion, would not be changed
1 The World's Legal Philosophies, Boston, 1912, 407.
in any essential respect if it were made to apply to moral force, which is equally necessary to the maintenance of the moral order. If the moral system were itself organized solely upon the basis of convention, it too would affect only "certain men with certain qualifications." There would be no way of securing the triumph of the higher over the lower conscience. Just as pressure must be applied to conduct in order to prevent lawlessness, it must likewise be applied to motives, as well as to acts, if moral anarchy is to be avoided and the supremacy of a lofty moral code is to be achieved. Force is therefore the necessary instrument of right, alike in the moral and in the legal sphere.
The Specific Force of Right. All force thus exerted for the maintenance of right, however, is not deliberately chosen; all such force need not be the artificially selected mechanical means to a desired end. Men will spontaneously exert the strength at their command to achieve what their will desires, without making any calculation of its efficacy and, indeed, without any conscious exertion of the resources at their command. The instinct of social reprobation, which may be as effective in arresting wrongdoing as deliberate persuasion, is an example of this spontaneous force. But it is not only in the subjective or psychic sphere that force may be exercised spontaneously. In the realm of physical force, likewise, a ruling class in possession of political and economic power will often set various agencies in motion which are not deliberately chosen but which act, as it were, of their own accord.
3"Moral force,” in this discussion, is used in the sense of coercive activity animated by a moral purpose, as distinguished from an arbitrary or passionate impulse; moral force is thus the opposite of brute force, and is synonymous with righteous or spiritualized force.
Many discussions of the element of force, in social life, are clouded by a vague terminology. It would be less confusing if writers, when they meant brute force or arbitrary force, always employed a more specific term than "force" in a general sense.
The distinction between the kinds of force is more important than that between the modes of its exercise. Moral force, legal force, and arbitrary force, for example, are different kinds of force. All varieties of compulsion may operate externally, upon the physical person, or merely internally, upon the will. The fear of physical consequences may be quite as effective in procuring obedience to the force-agent as an actually suffered external compulsion. After the primary division between the varieties of force, a subdivision can thus be made between physical or external force and psychical or internal force.