resisting ethos. The result of that subjugation is harmony and order. But to perfect that harmony and to render it durable something more than mere brute force is required. If the fruits of victory are to be retained, force must gradually become more spiritualized. In the course of innumerable conquests this spiritualization of force will advance more and more toward the ultimate goal of a completely united and harmonious order, both physical and psychical. The growth of the world empire and the development of the world ethos will be synchronous.

9

In this process, every conflict tends to be waged upon a higher moral plane than the preceding. The normal progress of communities is from less to greater power, from a lower to a higher ethos. As civilization develops not only does the higher ethos of the community progress, but the lower does likewise. When once, in the internal struggles of that community, order has become established and consolidation completed, any subsequent disintegration of force will hardly see the forces partitioned as formerly, but the division will occur upon a higher plane.

des Ausschliessens der einen durch die andere im Krieg. Beide Beziehungen sind notwendig, weil im Begriff selbst gegeben."

Long afterward Hegel returned to the subject in his "Grundlinien der Philosophie des Rechts," when he wrote: "Ewiger Friede wird häufig als ein Ideal gefordert, worauf die Menschheit zugehen müsse. Kant hat so einen Fürstenbund vorgeschlagen, der die Streitigkeiten der Staaten schlichten sollte, und die heilige Allianz hatte die Absicht, ungefähr ein solches Institut zu sein. Allein der Staat ist ein Individuum, und in der Individualität ist die Negation wesentlich enthalten. Wenn also auch eine Anzahl von Staaten sich zu einer Familie macht, so muss sich dieser Verein als Individualität einen Gegensatz kreieren und einen Feind erzeugen." Quoted by Ziegler, op. cit.

Hegel, for whom "individuality" has the meaning of our term "ethos," thus believed in war as a necessary means of resolving the opposition between ethea. But his view laid an excessive, dogmatic emphasis on the dialectical necessity of such intense oppositions in the actual world. The actual oppositions may not be so pronounced as to make war inevitable, and it is wrong to suppose that harmony is never to be established between them without violence. If for "war" the broader notion of strife in general, whether peaceful or violent, be substituted, Hegel's view can be accepted as properly indicating the necessity of opposition and the inevitableness of strife as a means of securing harmony and universality in the spiritual world.

"La défaite des armées ne produit une véritable annexion morale et sociale du peuple vaincu et la formation d'une société plus large qu'autant qu'elle a été ou précédée ou suivie, soit chez le vaincu, soit chez le vainqueur, de la diffusion d'idées nouvelles qui sont devenues communes aux deux." Tarde, Les Transformations du Pouvoir, 60.

The internal conflicts of to-day are on the whole less violent than those of earlier times. States have less difficulty in maintaining internal order than they formerly had. Each new disintegration promises to be less complete; each new consolidation stronger and more stable.10

In the relationships of nations, this process of consolidation will be slower than that in their separate internal existence. Often, before real stability is achieved, must the lower ethos win a spectacular victory over the lower, or must ethea between which there is not much room for a deliberate preference fight a morally indifferent contest for what appears to be merely the medial good of amalgamation rather than what is actually a final good of morality. But we cannot consider that such maladroit conflicts, obscure as their meaning is, are nothing but senseless collisions of brute force which make man but the plaything of giant, pitiless forces he cannot direct or understand. Even such struggles cannot be without a deeper moral significance. The victory may seem to go to might, not right, but right in the end is invincible, and triumphant might, to retain its supremacy, must fortify itself from spiritual sources, and shape itself into some resemblance to that which it has defeated, otherwise the vanquished right will return to the fray itself reinforced by elements that might has neglected to retain at its command.

Not every war is a righteous war. War is never righteous when it is possible to overcome resistance by conciliation. When conciliatory settlement is impracticable, war is always righteous to prevent a higher ethos from being dominated by a lower, and in a less but equally certain degree war is also righteous as a means of overwhelming the hostility of an equally elevated ethos. But in the latter case war is not less a castigation of the opponent for his failure to enter into upright cooperation, than an expiation for one's own mistakes which have cost one the good-will of the opponent and have made the estrangement one's own fault as well as his. War is always to be regarded only as a last resort, and can never be welcomed by the nation which realizes those deficiencies of its own which have made it necessary. Yet while it seems sordid for a nation to go so far purely for some such mechanical principle as the maintenance or restoration of "balance of power," the achievement of international harmony through victory is not such a 10 See Tarde's General Law, note 6, ante.

sordid aim. It is righteous to compel the enemy, when peaceful means fail, even when the enemy is as good as oneself, to enter into harmonious association in order that a proper and necessary redistribution of force may be made by physical means when other means have ceased to be available. For if the mind of the nations is not sufficiently flexible to keep the distribution of actual physical force in conformity with the distribution of ethos force, as near as may be, the latter will inevitably exert itself to bring about a redistribution, by which it may secure, if not all the physical force to which it is really entitled, the maximum that it is practicable for it to attain under existing conditions. In that way civilization is pressed forward, namely, by the struggle of the ethos toward consolidation with its competitors and toward the acquisition of the largest physical force it can command, as a necessary instrumentality for the effective prosecution of that struggle. 12

The Problem of Right in Relation to the Distribution of International

11 "The active forces of humanity cannot be permanently repressed. New tendencies and ambitions will ferment in the old channels, and will not rest until they have found their fulfillment in one way or another; unless, indeed, overpowering forces oppose them, which then leads to severe oppression. In any case, it will come to a contest of forces in order to prove whether the abilities contained in the nation are adequate to overcome the obstacles. As has been elsewhere emphasized, this is the most important obstacle to universal world peace, and the last stronghold of war can never be destroyed until a method is found of settling such differences in a suitable way. We have still far to go to reach this point, and our concern at present cannot be to abolish wars but to restrict and limit them to a great extent." Kohler, Philosophy of Law, translated by Adalbert Albrecht, Boston, 1914, p. 301.

12 "Eh bien, substituer de plus en plus à la rivalité, à la mutuelle limitation, à l'equilibre instable des pouvoirs, soit au dedans de l'État, soit même au dehors, leur harmonisation croissante, n'est-ce pas là que tend l'élaboration politique en tout pays moyennant des luttes et des guerres, des alliances et des traités sans nombre? Oui, mais, pour atteindre ce but, il n'est pas possible ici de laisser les choses suivre leur cours et d'attendre du fonctionnement même de la concurrence une certaine harmonie, ce qui a lieu souvent dans la sphère économique. Â force de rivaliser et de se heurter, les travaux parviennent un jour ou l'autre à s'accorder en ce bas degré d'harmonie que realise la réciprocité de leur emploi, l'aide mutuelle qu'ils se prêtent pour leurs buts multiples. Les pouvoirs ne sauraient s'harmoniser de la sorte, car ce rapport n'existe pas pour eux. De la deux conséquences importantes: la nécessité de la centralisation pour mettre fin aux difficultes de la politique intérieure, et, en vertu des mêmes raisons, la nécessité des grandes agglomérations d'États pour résoudre les problèmes anxieux de la politique extérieure." Tarde, Les Transformations du Pouvoir, 204.

Force. The problem of international right is essentially the problem of the world ethos. The competing national conceptions of right, like the competing physical forces of the nations, must be consolidated in a single conception, a single ethos, before right will be absolutely secure from the danger of being overthrown by brute force. In the gradual progress toward this consolidation right, formerly often at variance with might, and now and then forced back into fierce struggle with it, will tend more and more to coalesce with might, till at last the two can scarcely be distinguished. But we are not compelled to look only into a Utopian prospect for encouragement in the desire for a stable right. Long before consolidation is completed, it is possible that merely by reason of the preponderance of the forces of right over the resisting forces right may be in fact supreme. Yet such right cannot be perfect until by interpenetration of all forces each individual State can become sure of what is rightfully its due; the right thus established will be far from the ideal right of the human race until it finds its basis in the largest possible, unitary conception of world order. We should therefore recognize the fact that international law, as Savigny said, is no strictum jus, but a perpetually growing system, which must alter its own constitution from time to time to conform to the struggle of world forces in which it shares; and we must not make the mistake of supposing that any system which could be framed to-day can be complete, or can offer the efficacious and adequate solution of all the various controversies that may arise in the international strife of States.

ARTHUR W. SPENCER.

SOME QUESTIONS OF INTERNATIONAL LAW IN THE

EUROPEAN WAR

I

THE VIOLATION OF NEUTRAL TERRITORY

The invasion by German troops of the territories of Belgium and Luxemburg and the occupation by Japanese troops of Chinese territory to facilitate their attack upon the German forces at Kaio-Chau have raised one of the most fundamental questions of international law, namely, under what circumstances, if any, is a belligerent justified in violating the territory of a neutral for the purpose of prosecuting his military operations against the enemy. The German and Japanese offenses differ somewhat because in the one case the neutrality of the violated territory had been guaranteed by a special convention of long standing to which the violating belligerent was himself a party; in the other case the neutrality of the violated territory, although protected by a long established rule of international law, as well as by one of the Hague conventions, had not been made the subject of a special and solemn guarantee by a group of Powers. This fact, together with other circumstances, places the two acts upon a different moral if not a different legal footing.

*

In brief, the facts regarding the neutralization of Belgium and Luxemburg are as follows: In 1831, shortly after the Belgians had proclaimed their independence, representatives of the five great Powers, England, France, Austria, Russia and Prussia, assembled at London and signed a treaty, Article 9 of which declares that "Belgium * shall form a perpetually neutral state," and "that the five Powers, without wishing to intervene in the internal affairs of Belgium, guarantee her that perpetual neutrality, as well as the integrity and inviolability of her territory." Article 10 declares that "by just reciprocity Belgium shall be held to observe this same neutrality toward all the other states and to make no attack on their internal or external tranquillity whilst always preserving