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neutral trade. She thus virtually affirmed, ten years ago, that the law of nations had been so changed as to permit what, prior to the acts of England and France in 1806, was generally considered as forbidden.

Her action and the general question involved were the special subject of discussion at our Naval War College in 1912.

Stated in form, the proposition before it was thus expressed : A belligerent may be obliged to assume in time of war, for his own protection, a measure of control over the waters which in time of peace would be outside of his jurisdiction.

In the course of the discussion this pronouncement was formulated as in his judgment sound, by one of our most distinguished scholars in international law:

The definition of the area of operations of a blockade, even if in such a manner as to include a large range of high seas, is regarded as a legitimate act of war, and the belligerent right is respected. The principle which is recognized is that the belligerent has the right to put pressure on his opponent, without interference by neutrals. It is undoubtedly an inconvenience and may be a loss to neutral commerce to be excluded from the blockaded area, but it is a recognized consequence of war.

The result of the conference was the adoption of the view that if such a strategic area were designated by a belligerent as for the time closed to commerce, the commander of a neutral manof-war, if appealed to to escort one of his country's merchant ships through it, should decline, and should advise the master of the merchantman to keep out of it."

This conclusion of the discussion has, of course, no binding force upon the United States. It is important, however, as a matter of intrinsic weight, in view of the insistence on the war zone theory, and the practice under it of Great Britain, Germany, and Italy, in the present European wars.

It will not be forgotten that a blockade of the old type is quite a different thing from a war zone of the new type.

Such a blockade is designed to shut up a particular port. Such a war zone is designed to exclude because it endangers entrance into a particular part of the high seas.

15 Professor George G. Wilson.
16 Proceedings of the Naval War College for 1912, 117, 128, 129.

Any neutral vessel breaking a blockade takes the risk of being captured and condemned. Any neutral vessel entering a war zone, if the doctrine be once admitted that such a military area can be effectually created, as respects neutral powers, may be in peril of being stopped and seized, if not of being sunk.

Supporters of the new doctrine, in other words, maintain that the neutral ship which enters upon what she knows to be the special military area of active operations on the sea, is in a similar position to a neutral traveller who in a country which is the actual seat of war, enters upon what he knows to be a special military area of active operations.

In October, 1914, Russia delimited a war zone on the seas off her coasts, in which she proposed to place concealed bombs and torpedoes, and in November the British Admiralty announced that the whole of the North Sea would be considered a “military area” for like purposes.

At the Hague Conference of 1907 the special committee on submarine mines reported in favor of a limit for laying them of three miles from shore, or if laid in front of military ports, ten miles, but with the exception of creating “ danger zones" in waters beyond these limits, when the sphere of immediate naval activity. The conference struck out these limitations."

On February 4, 1915, the German Admiralty issued an order declaring that “the waters around Great Britain and Ireland, including the whole English Channel, are declared a war zone from and after February 18, 1915"; that every enemy merchant ship found in this war zone would be destroyed; and that neutral ships entering it would be in danger. A similar zone was likewise constituted in a strip of at least 30 miles in breadth along the Dutch coast.

Against this step the United States promptly made a protest, and Great Britain issued several retaliatory orders in council. The main one of these, published in part on March 15, 1915, prohibited all commerce with Germany after a certain date, and provided for the seizure of neutral merchantmen engaging in such trade. This was not called a blockade, and that which Germany termed a “war zone” was referred to as a “military area.”

Scott, The Hague Peace Conferences, I, 582, 829; II, 480.

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Against these measures the United States at once protested; not failing to refer to the fact that in one sentence the order claimed a right pertaining only to a state of blockade, and in another proposed to proceed as if there were no blockade.

It should be noted that Great Britain, in taking her action, referred by way of justification to the conclusions of our Naval War College in 1912.

Italy, in June, 1915, issued a decree declaring the whole of the Adriatic Sea a war area.

All the great powers, except the United States, have thus created, from time to time, military areas of sea; but generally against the protests of neutral sovereigns, including the United States.

The American position in regard to the use of torpedoes in them, as announced in our note to Germany of July 21, 1915, is, first, that our government" is not unmindful of the extraordinary conditions created by this war, or of the radical alterations of circumstance and method of attack produced by the use of instrumentalities of naval warfare, which the nations of the world cannot have had in view when the existing rules of international law were formulated ”; but, second, that submarine operations, within a “so-called war zone on the high seas, can and should be conducted in substantial accord with the practices of regulated warfare accepted before the submarine reached its present point of development.

It is probable that some of these points will soon be brought before the Hague tribunal. Great Britain, in her note of July 31, 1915, to our ambassador, has intimated her readiness to assent to a review of that nature, of any judgment of her courts based on Orders in Council claimed by us to derogate from the principles of international law; and yesterday's newspapers show that we have virtually agreed with Germany on a similar disposition of the question whether those principles justified the sinking of the William P. Frye on the high seas.

This discussion would be incomplete without reference to a suggestion recently made by one of our associates that our immense coasting trade calls for a safety zone around the two Americas, extending far beyond cannon shot from the shore, into which no belligerent ship should have the right to enter on a hostile errand without incurring the peril of internment." A war zone, in other words, might come to be deemed desirable by neutrals as a shield, and so created by them against the belligerents, instead of, as now, by the belligerents against them.

There is no time to speak of other changes in the law of nations which have, from time to time, been attempted, and in some cases with ultimate success, such, for instance, as giving, under our lead, within a hundred years, to the slave trade, formerly a lawful traffic, the brand of piracy.

No form of human law can endure which is not capable of amendment. To the law of nations change comes slowly, for it must be the act of many different peoples. It will change irregularly and in detachments. Macaulay has observed that there are in the administration of government two kinds of wisdom: the highest wisdom, which is conversant with great principles of political philosophy, and a lower wisdom, which meets daily exigencies by daily expedients.

In respect to the development and application of international law, these two kinds of wisdom often come in conflict, and when they do, it is seldom the higher that controls. Nations are selfcentered. Each views rules of international conduct mainly as it is itself, at the time being, affected by them. And back of all, at all times, we must reckon with the impulses of self-preservation. In the eloquent words of our late associate, Frederick R. Coudert, “ Self-protection and self-preservation constitute the corner stone of modern international law. This instinct is as strong in communities as in individuals, and will, when aroused by real or imaginary perils, sweep away forms and law, as worthless incumbrances, if they interfere with their first duty and most valuable right, the duty to resist aggression, and the right to

live.” 1

18 Paul Fuller, in the Annals of the American Academy of Political and Social Science, LX, 157.

19 Coudert, Addresses, 126.

THE LAW AND THE LAW SCHOOLS.

BY

FELIX FRANKFURTER,

OF MASSACHUSETTS.

Public opinion, the dominant factor in our national life, is also the most elusive. History is witness to the inherent difficulties and constant errors of contemporary judgments of the temper of a period. Occasionally, however, the intellectual tendency of the present is revealed as marking the culmination of a prior era. Apparently we are, for the moment at least, at the end of a period of agitation and wholesale criticism. The very term

muck-raking” is passing into disuse, and with it those energetic movements which produced its modern meaning. But this agitation has had a sound basis; it has not been fomented by irresponsible malcontents. Much of it has been crude, much has been indiscriminate. But the early expression toward any national betterment takes a rough-hewn form. However crude, however intemperate, however unjust in this or that detail, this great protest has had at its core a justifiable endeavor against remediable evils. Senator Root's speech before the New York Constitutional Convention the other day will help to give proper perspective toward an agitation which may at times have offended

He said: “ Let us bear in mind that there has been abundant cause for complaint. I have been in public life for 40 years and during that time the government of the State of New York has been about as representative and responsible as the government of Venezuela. Now the time has come when invisible government should give way to government that is accountable and responsive.

Senator Root thus soberly teaches us to analyze the aims back of this agitation, and not with passion or prejudice merely to denounce it. It is but natural that when social ills, and legal and political inadequacies, are surged against in a storm of protest, some of the protestants will offer hastily constructed and superficial remedies. But it is not sufficient for us merely to denounce as shallow or bungling or even evil such remedies as the recall of judicial decisions, the recall of judges, or what

ns.

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