It is then legitimate
to carry on the war in the most drastic manner; the
ultimate aim--peace--will thus be attained as speedily
?
to carry on the war in the most drastic manner; the
ultimate aim--peace--will thus be attained as speedily
?
Treitschke - 1914 - Life and Works
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? 17(C) TREITSCHKE: HIS LIFE AND WORKS
Curiously enough, however, it is just in the domain of
war that the triumph of the human intellect most clearly
asserts itself. All noble nations have felt that the physical
power unchained in war must be regulated by laws.
The result has been the gradual establishment, by common
consent, of rules and customs to be observed in time of war.
The greatest successes of the science of international law
have been won in a field which those who are fools look
upon as barbarous--I mean the domain of the laws of war.
Really gross instances of the violation of military usages
are rare in modern times. One of the finest things about
international law is that it is perpetually progressing in
this respect, and that the universalis consensus alone
has so firmly planted a whole series of principles that they
are now well established. No doubt international law
will always lag a little behind the civil law, for various
principles of justice and culture must first reach maturity
within the State before anyone will feel anxious to find
them a corner in international conduct. Thus it was that
no crusade against slavery could claim the support of
international law till the general belief in the dignity of
man had become common in the nineteenth century.
Another factor which contributed to strengthen inter-
national law is the growing publicity of public life.
The days of the English Blue Book are now past; these
Blue, Yellow, and Green Books were only intended to
blind the Philistine with fumes of a flattery through which
he cannot see. A clever diplomat can easily hoodwink
a Parliament by these means. But the whole life of the
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? INTERNATIONAL LAW 171
'
State is lived to-day so entirely in the glare of the footlights
that a gross violation of international law at once arouses
real anger among all civilised peoples.
International Law in Time of Peace.
We may now study some of the principles affecting the
intercourse of nations in time of peace which have deve-
loped into law. All nations should be allowed to enjoy,'
in security and without distinction, the unifying influences
of commercial intercourse, science, and art. Ancient
peoples sometimes forbade other nations to practise
certain industries which were looked on as secret arts.
In the later Roman Empire it was forbidden to initiate
barbarians in ship-building, and similar monopolist
principles obtained even as late as the days of the Hansa
League. All that would be impossible to-day. The State
must take the risk of free competition with other States,
and that has been laid down in a whole series of treaties.
In classical times it was, further, the custom of
almost all nations to claim exclusive access to some parti-
cular sea. Later still, it has been held that certain seas
which were not properly called oceans belonged to
particular States. The Adriatic was the property of
Venice, the Ligurian Sea of Genoa, the Gulf of Bothnia
of Sweden. To-day the sea is said to belong to the States
which border on it only so far as it can be militarily con-
trolled from the coast, that is, within gunshot. But
in such questions, as in so many others, everything
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? 172 TREITSCHKE: HIS LIFE AND WORKS
ultimately depends on the actual power of the States
concerned. If a particular State can dominate a particular
sea, no well-meaning theorist can ever make that sea
public. The Caspian Sea belongs in name to two States,
Persia and Russia. But Russia is so strong that the Sea
is a Russian lake. So, again, if a power were to arise at
Constantinople strong enough to close the Bosphorus
to all comers, protestations against such an act would
be merely laughed at. Apart from this, the sea must be
regarded as open to all ships flying a recognised flag. The
high seas are policed by the navies of all nations, and every
man-of-war has the right to stop a merchantman and
examine its papers. This is the result of a long and
intricate development. All nations are now agreed that
occasional inconveniences suffered by their merchant
ships is a far lesser evil than piracy.
All international rights are safeguarded by treaties.
These treaties differ in many details from compacts made
under the civil law. In the first place they depend on good
faith on both sides, since there is no tribunal to compel
either side to observe them. The ancient Athenians were
therefore obeying a right instinct when they decided to
l limit the time during which their treaties with other nations
held good. Christian nations have tended rather to re-
j gard treaties as eternally binding, but their real attitude
is that they are willing to observe the treaty so long as the
relative strength of the States involved does not seriously
change. The more clearly this truth is proclaimed, and the
more dispassionately it is regarded, the safer will be the
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? INTERNATIONAL LAW 173
treaties made; States will not conclude agreements which
the other party is likely to break.
There are other treaties which are made under compul-
sion. Such compacts are not made in time of peace;
if Switzerland be unwilling in peace time to enter into a
treaty with Germany, she is free to refuse. But after
wars the victor imposes a compulsory peace on the con-
quered. Here again we seek in vain for the external judge
who can say with authority, " This treaty is compulsory. "
It does not appear that there can be any limit of time
implied in agreements under international law. Limits
are imposed on the duration of certain legal liabilities
under the ordinary law; for example, thefts might cease
to be actionable after twenty years. But this is really a
juristic makeshift. The framer of the law has authorised
a legal fiction on practical grounds. It is not thought
worth while to pursue a trifling offence after the lapse of a
long period. But that cannot be done in international
law. The lives of States last for centuries. One would
have to wait for years for the expiry of the time-limits
of nations. Frederick the Great had a perfect right to
claim Silesia as part of his kingdom, though the treaties
which secured it to his family were over two hundred
years old.
Much progress has been effected of late years in the
way of better drafting, and also of more distinct ratifica-
tion, of international treaties, as well as in lucidity of
wording. As a rule, such treaties ought not to contain
secret clauses. They merely obscure the true state of
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? 174 TREITSCHKE: HIS LIFE AND WORKS
affairs; they bring it about that States which are unaware
of them form false ideas of their mutual obligations, and
thus they may easily prove dangerous to the very State
which made them. Governments used to imagine that
secret clauses would trip up other governments; obviously
they are actually a double-edged weapon. There are,
of course, exceptions even to this. In 1866, when Prussia
made peace with the conquered States of Southern Ger-
many, an offensive and defensive alliance between them
was concluded in a series of secret treaties. There was
good reason for this. When France, a year later, revealed
her leanings towards war, it was then publicly announced
that North and South Germany would act together.
The sphere in which the principles of international
relations can be most definitely laid down is that of
private international law--the law which governs the
behaviour of any State towards individual foreigners.
It is a great step forward that, in any cultured State to-
day, a foreign private person is sure of the protection of
the law. It is a crime against the human race to urge the
view that force alone governs international law to-day.
That view is wholly untrue. Only--we must not expect
the impossible. The difficulty of the question becomes
apparent as soon as one looks into its details. One then
realises that all obligations of private as of other inter-
national law are entered into and kept with a certain
reservation, that, namely, they cannot be fulfilled when
they entail grave hurt to the State which promised to
carry them out. However many treaties we may con-
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? INTERNATIONAL LAW 175
elude in the domain of private international law, it is
always implied that we shall not keep them if a foreigner
becomes obnoxious to us. A State must be able to expel
inconvenient foreigners without declaring its reasons,
even though it has signed a treaty permitting foreigners
to reside within its borders. Thus, modern States
habitually expel persons suspected of being spies or
secret agents; if explanations had to be published
before active steps were taken in such cases, those
explanations would be mostly of an exceedingly un-
pleasant kind, and would merely imperil the friendly
relations of the States concerned. It is therefore more
sensible to take the line that any alien can be expelled
at any moment, with the simple comment: You are
undesirable. And the right to act thus must be firmly
maintained, if only in the interest of honest men, who
might otherwise be molested; this proceeding, which
appears cruel on the surface, proves in reality to be the
truest humanity. On the other hand, States must not
claim the right to expel their own subjects. That is to
claim something which is essentially illegitimate. When
Germany expelled the Jesuits we were at least sure that
they would find a roof elsewhere. But if Germany were
to expel its own common criminals it would be simply
blowing them into the air, for no other State would be
willing to receive them.
Wherever international law relating to private indivi-
duals has begun to grow up, mutual undertakings are
soon given between the various States, to assist one
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? 176 TREITSCHKE: HIS LIFE AND WORKS
another in the apprehension of criminals. Here we reach
some of the hardest problems of international law. It
is easy enough to assert generally that mankind as a whole
is bound to pursue criminals. That is recognised by all
noble nations and is easily embodied in their laws. But
how are we to draw the line between what is criminal and
what is not? To begin with, it is eminently necessary
to distinguish political and common offenders. Every
State must consider its own interests before it takes action
against traitors against some other State. There may
exist between two countries, nominally at peace, a latent
state of war, as is now the case between France and
Germany. In such a case it may well happen that the
man who is a political offender against the laws of his own
country is also very welcome to the other country; it
would be silly if the latter were to be forced to hand him
over to his own government. Treaties regulating the
extradition of common malefactors are easily made;
but no State will pledge itself to deliver up all political
offenders without the option of using its own judgment in
particular cases. Understandings, again, might be effected
as to anarchists pure and simple, who work with dynamite;
but about political offenders, as a class, no general treaty
can be drawn.
With respect to common criminals, the limits of extra-
dition must, of course, be settled by special agreements.
Such agreements must, of course, apply only to really
grievous offences. The judicial codes of various lands
vary so much that it is emphatically desirable that as
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? INTERNATIONAL LAW 177
many crimes as possible should be judged at home.
Experience has here shown that the further the jurisdic-
tion of a nation is extended the better the result.
All this general movement towards securing justice
naturally tends to an ordered union between the States
concerned, that is, to a political system in which the use
of fixed forms of action is accepted even in international
matters. The quarrels of seventeenth century Europe
on matters of ceremonial, which now strike us as so absurd,
had a sound basis, despite the ridiculous forms which
they assumed. They showed that the States of Europe
had begun to regard themselves as members of one family.
In a well-ordered household everyone must have his
fixed place, and his individual rights must be recognised
and maintained. The difference between Empires and
Small States, between Great Powers and States of the
second or third rank, still exists from a practical point of
view, though no documents specifically record it. A Great
Power may be defined as a State which could not, in the
given circumstances, be destroyed by any one other Power,
but only by a coalition. The preponderance of the Great
Powers in Europe has lately become very marked, and it
is to this that we owe a certain security now observable in
our international relations. The law affecting embassies
has been so firmly established since the Congress of
Aachen in 1818, that the clearest lines have been drawn
in all civilised States between the different classes of
diplomatists. Through the dominance of the leading
European Powers, the practice--indeed the rule--has
M
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? 178 TREITSCHKE: HIS LIFE AND WORKS
grown up that representation at a Congress of Great
Powers is granted only to those among the lesser States
which are directly concerned in the subject to be discussed.
But when once a Small State has been invited to the con-
gress, its voice carries as much weight as that of any other
State, large or small. These congresses are governed, not
by a vote of the majority, but by the liber urn veto of
natural law. A meeting which is held, not to conduct a
war but to formulate its results, cannot reasonably
be bound by majority votes; it must obtain unan-
imity.
It appears impossible to set up any general principle
governing international behaviour. The doctrine that
you may always intervene in the affairs of another State
is as false as the doctrine that you may never do so. A
State may find itself driven to regard the party struggles
in a neighbouring country as harmful to its own peace.
Were a cosmopolitan party to seize the reins in a State
which bordered with Germany, the issue might look so
threatening to us that we should have no option but to
interfere. To interfere, however, involves considerable
risk. The modern world has come to believe firmly in
the doctrine of national independence, and intervention
will always arouse resentment, and that not only in the
country which suffers the intervention. Hard experience
has taught this generation to be shy of mixing in the
internal affairs of its neighbours. But when a State's
existence seems to itself to be in peril, it both may and
will intervene.
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? INTERNATIONAL LAW 179
In Time of War.
The acceptance by States of common rules for mutual
relations, even in an age when physical force tears up
treaties, shows that a law governs their conduct, but a
defective and immature law. A state of war is usually
preceded by a hostile peace. Vain efforts at mutual under-
standing lead, in the first instance, to one of the States
passing laws detrimental to the other. That is legal enough,
if it is not fair, and the other State will straightway re-
taliate by a similar lack of consideration for its neighbour.
If one of the States trespass on an actual treaty-right,
the sufferer replies by equally conscious illegalities. Pre-
ludes of this kind lead finally to real war. As soon as
hostilities have actually begun, all treaties between the
two States come, legally, to an end. A formal declaration
of war is no longer needful in these days of railways and
telegraphs. Mobilizations of troops and discussions in
Cabinets and Parliaments give clear warning that the
State intends to open hostilities; the declaration is an
empty form. In the war of 1870 France did not send us
any declaration of war till a week after diplomatic rela-
tions had been broken off.
After the outbreak of war the primary object seems to
be to bring about new international conditions which
shall correspond to the real strength of the warring States,
and which they must recognise.
It is then legitimate
to carry on the war in the most drastic manner; the
ultimate aim--peace--will thus be attained as speedily
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? 180 TREITSCHKE: HIS LIFE AND WORKS
as possible. First, therefore, pierce the enemy to the
heart. The very sharpest weapons may be used, provided
that they do not inflict on the wounded needless torments.
Philanthropists may declaim about burning shells which
fall into the powder magazines of wooden warships;
that is all beside the point. The States themselves must
settle what weapons shall not be used; at the request
of Russia it has been agreed not to use explosive bullets
for rifles. A warring nation is wholly justified in taking
every advantage of every weakness in its opponent. If
its enemy is disturbed by internal revolts and conspiracies,
it may make full use of them; in 1866 it was only the
swift march of events that prevented us Prussians from
entering into agreements with the Hungarians against
their Austrian masters.
A warring nation may call to its fighting line the whole of
its troops--whether barbarian or civilised. On this point
we must keep an open mind and avoid prejudice against
any particular nation. There were howls in Germany
during the Franco-Prussian war because the French set
the Turcos to fight a highly civilised European people.
The passions of war readily breed such protests, but
science must take a dispassionate view and declare that
action, such as that of the French, was not contrary to
international law. A belligerent State both may and
ought to bring into the field all its physical resources,
that is, all its troops of every kind. For where can a line
be drawn? Which of all its charming subject-races
should Russia, for example, rule out of court? The
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? INTERNATIONAL LAW 181
entire physical resources of the State can, and must, be
used in war. But they must only be used when they
have been embodied in those chivalrous forms of
organization which have been gradually established
during a long series of wars. The use of the Turcos
by the French put a curious complexion on their claim
to march at the head of civilisation. Indeed, many of
the complaints made in this respect arise from the fact
that people demand from a nation more than it is able to
fulfil. We all know that in modern national warfare
every gallant subject is a spy. The expulsion of the
80,000 Germans from France at the beginning of the
Franco-Prussian war in 1870 was, therefore, in accordance
with international law; the one point to which we can
object in the whole proceeding is, that the French
displayed a certain brutality in dealing with these
Germans.
The degree of humanity to be observed in warfare
is affected by the doctrine that a war can only be waged
between two States, and not between individual members
of those States. This doctrine regulates all warfare in
theory, though in practice only that on land. It should
be possible to recognise, by a distinguishing mark, all
men whom the State authorises to wage war for it, and
who must, therefore, be treated as soldiers. We are
not as yet all agreed on this point, and this failure to
agree constitutes a grievous gap in international law.
Humanity in war is entirely dependent on the question
as to whether the soldier feels that his only opponent
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? 182 TREITSCHKE: HIS LIFE AND WORKS
is the enemy's soldier, and that he need not fear an
attack behind a bush from every peasant with whom
he has had peaceful dealings half an hour earlier. If
the soldier journeying through a hostile country does
not know whom to regard as soldier, and whom to look
upon as robber and highwayman, he is driven to show
himself cruel and heartless. No one can be regarded
as a soldier unless he has taken the military oath, unless
he is subject to military law, and unless he wears some
distinctive token, even if it be not (strictly speaking) a
complete uniform. It is a self-evident fact that bands
of unauthorised volunteers must expect to meet with
harsh and ruthless treatment. It is imperative that we
should come to some sort of international agreement as
to the tokens whereby one may know an armed man
to be an actual member of an authorised army. This
point was discussed at Brussels in 1874, and there the
conflicting interests of the different parties were thrown
into high relief. Little States like Switzerland were in
no way anxious to bind themselves on such a question.
Each State is, at present, its own judge in the matter,
and must itself determine which of its enemies it pro-
poses to treat as units of an army, and which as simple
robbers. Regarded from a moral point of view, a real
respect is due to the action of many " Franc-tireurs " in
1870 and 1871, whom despair drove to try to save their
country. But in the light of international law they
were mere highwaymen. In the same way, Napoleon was
right in 1809 to treat Schill and his associates as robbers.
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? INTERNATIONAL LAW 183
Schill, a Prussian staff officer, himself deserted, and
induced his men to desert, and then began to wage war
against France. He was then, according to interna-
tional law, nothing more than a robber chief. The
King's anger at this proceeding knew no bounds. What
was there left to hold the State together if every staff
officer chose to form a little army on his own? But, in
spite of these facts, Napoleon's resolve to adhere to the
letter of the law in this affair was an act of unparalleled
cruelty, and also an act of great imprudence. Everyone
with noble instincts will side with Schill. Schenkendorf
felt this when he represented Schill as saying:
"My King himself will say to me,
'Rest thou in peace, my faithful Schill. '"
It would, however, be impossible to maintain that the
enemy's action was any infringement of international
law.
When it has once been determined who belongs to the
army, and who is entitled to the chivalrous treatment
due to a prisoner of war, private property belonging to
an enemy may be very generally spared. But in this
matter also it must be clearly understood that we must
not, in the name of humanity, outrage the sense of
honour of a nation. At the congress held at Brussels
the Prussians proposed an international agreement that,
in a conquered province, the civil government should
pass ipso jure into the hands of the military authorities
of the victorious army. Such an arrangement would,
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? 184 TREITSCHKE: HIS LIFE AND WORKS
in many ways, prove beneficial to material well-being.
A general who knows that he is entitled, by international
law, to demand obedience from foreign authorities will
be able to keep a more decided check on his troops, and
to behave generally in a more humane manner. But
there are possessions which stand on a higher level than
trade and traffic. This German demand expressed all
the confidence of a people accustomed to victory. But
could we seriously wish that Prussian State authorities
\ should, by law, be compelled to obey a Russian General?
I Excessive humanity can lead to dishonour, and thus
become inhuman. We expect our countrymen to use
all lawful means to defeat the enemy. Think for a
moment of our own past experiences. Every East-
Prussian knows about President Dohna, who, during the
Russian occupation, carried off the receipts and taxes to
the lawful King, and did his best to work against the
enemy. Shall that be forbidden in the name of philan-
thropy? Is not patriotism, in this case, a higher duty?
It matters little whether a Russian, embittered by this
kind of resistance on the part of good and honest Prus-
sians, burns a few more villages than he at first pur-
posed in his knoutish mind. This is a consideration of
far less importance than that a nation should keep the
shield of its honour bright. The moral possessions of
a nation ought not to be destroyed in the name of
humanity by international law.
Even when the power of an enemy is purely military
it is still possible to give the utmost protection to private
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? INTERNATIONAL LAW 185
property, provided that the members of the hostile
army are easily recognisable. Requisitions are allowed;
it is a general practice to give promissory notes in ex-
change. The task of getting them all paid is, of course,
left to the conquered. War against private property
as such, of which the laying waste of the Palatinate at
the end of the seventeenth century by Melac, furnishes
us with a dreadful example; the wanton burning of
villages is regarded to-day by all civilised States as an
infringement of the law of nations. Private property
may only be injured in so far as such injury is absolutely
essential to the success of the war.
But international law becomes mere clap-trap when
these principles are applied to barbarian nations. A
negro tribe must be punished by having its villages
burnt; nothing will be achieved without an example
of this kind. Any failure on the part of the German
Empire to base its conduct on these principles to-day
could not be said to proceed from humanity or a fine
sense of justice, but merely from scandalous weakness. *
And even where dealing with civilised nations, it is
right to legalise only those practices which are the real
outcome of the general sense of obligation common to
all the nations concerned. The State must not be used
as an instrument wherewith to try experiments in humani-
tarianism. How drastic an example of such an error
is furnished by the Franco-Prussian war! We declared,
in a burst of false humanity, that we would respect
* Lecture delivered during the winter of 1891-2.
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? 186 TREITSCHKE: HIS LIFE AND WORKS
the private property of the French at sea. The idea was
both noble and humane. We failed, however, to observe
that among the other States there is one--I mean Eng-
land--which is fundamentally averse to being schooled
by noble thoughts; we also failed to realise that France
would not pay us back in our own coin. This one-
sided German humanitarianism simply released France
from the necessity of using her navy to protect her
merchant ships against German men-of-war. Her whole
fleet was thus set free for the immediate purposes of war.
The marine infantry and the really excellent marine
artillery were landed, and during the winter we very
frequently found ourselves fighting with these marines.
It will thus be seen that the undertaking entered upon
by us merely released troops to be used against our-
selves. Every advance in humanitarianism as ex-
pressed in international law should, therefore, be based
on the principle of reciprocity.
But there are many items about which we are in doubt,
whether they are the property of the State or of private
persons. The property of the State is, obviously and
naturally, the lawful booty of the victor. This is prim-
arily true of all kinds of military supplies in the widest
sense of the word, and of such things as State railways.
But to which class must we relegate the rolling stock
of the private railway companies, to which the State has
granted an actual monopoly? The enemy may, of
course, use the railway plant belonging to these companies
during the war; but may he keep the carriages and
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? INTERNATIONAL LAW 187
trucks? Our decision to do so during the last war
was a perfectly just one, in view of the nature of the
French railways. They were, in actual fact, the property
of the State, and we kept the carriages which we took,
and sold them back to France when terms of peace were
arranged. The question is an even more difficult one
when it relates to banks. There are certain banks, among
them the Bank of Germany, in which a body of bankers
outside the country have a material interest. Such a
practice is very useful from a commercial point of view;
the bank is thus kept in touch with the great business
houses, and in a position to take its part in the com-
mercial activities of the moment. It would be, however,
a pure illusion to suppose that the Bank of Germany
would thereby be saved from confiscation by a conqueror.
An enemy would certainly look upon it as a State bank,
and the fact that a few private persons had an interest
in it would in no way affect his decision.
It has also become a principle of international law
that the great treasures of civilisation, which serve the
purposes of Art and Science, and are looked upon as
the property of humanity as a whole, shall be secured
against theft and pillage. In earlier times this principle
was trampled under foot.
Individual members of the standing armies, and all
persons authorised to take part in national defence, have
a right to demand honourable treatment as prisoners of
war, and all attempts to force prisoners into the enemy's
army is contrary to international law. It is, however,
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? 188 TREITSCHKE: HIS LIFE AND WORKS
doubtful whether this principle obtained during the last
century. In matters such as these everything depends
on the sense of right and wrong which animates the age.
At the beginning of the eighteenth century the mercenary
idea was still so grossly prevalent that a French regiment,
consisting of course of Germans, was taken over by the
Saxons at Hochstadt (1703), only to be lost by them at a
later date, when it went over to the Swedes. At Stralsund
it went over to the Prussians, with whom it finally
remained, under the name of "Jung Anhalt. " But
when Frederick the Great forced the captured Saxons
into the Prussian Army, at Pima, it became evident
that a practice which had once been followed as a matter
of course had now become impossible. On that occasion
the Saxons deserted from the Prussian Army in hordes.
Nowadays an attempt of this kind would be not only a
palpable infringement of international law, but also an
unparalleled piece of stupidity.
. It goes without saying that every State has not only
\ the right to wage war, but also to declare itself neutral
\ in the wars of others as far as material conditions permit.
J If a State is not in a condition to maintain its neutrality,
: all talk about the same is mere clap-trap. Neutrality
needs as much defending as the partisanship of belli-
gerent States. It is the duty of a neutral State to dis-
arm every soldier who crosses its borders. If it is
unable to do so the circumstances justify the belligerent
States in ceasing to observe its neutrality, even if it has
allowed an armed enemy to enter but one village.
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? INTERNATIONAL LAW 189
It is to be regretted that a sharp distinction is still
drawn in military law between its workings on land
and its workings at sea. All who have eyes to see must
here be struck by the disastrous influence of English
naval power on universal culture and justice. We have
not as yet obtained a "balance of power" at sea, and
Schiller's melancholy dictum, therefore, still holds good:
"Among the waves is chaos,
And nothing can be owned upon the sea. "
Such a state of things is deeply humiliating to our pride
as a civilised nation. England is alone to blame, for
England is so immensely pre-eminent at sea that she
can do whatever she likes. All who desire to be humane, j
all who thirst to realise in some degree the ideals of
international law on the high seas, must work for a
balance of power in this direction also. One is con-
stantly surprised by the infatuation of public opinion
at the present day. Countries marching on the wrong
road are always glorified, and the sentimentality of
Belgian exponents of international law, and England's
barbarous views regarding maritime law, are perpetually
admired. All the other Powers would be prepared to
allow free circulation, under certain conditions, to mer-
chant ships in time of war; England alone maintains
the principle that no distinction is to be made at sea
between the property of the State and that of pri-
vate persons. And as long as this one Power insists on
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? 17(C) TREITSCHKE: HIS LIFE AND WORKS
Curiously enough, however, it is just in the domain of
war that the triumph of the human intellect most clearly
asserts itself. All noble nations have felt that the physical
power unchained in war must be regulated by laws.
The result has been the gradual establishment, by common
consent, of rules and customs to be observed in time of war.
The greatest successes of the science of international law
have been won in a field which those who are fools look
upon as barbarous--I mean the domain of the laws of war.
Really gross instances of the violation of military usages
are rare in modern times. One of the finest things about
international law is that it is perpetually progressing in
this respect, and that the universalis consensus alone
has so firmly planted a whole series of principles that they
are now well established. No doubt international law
will always lag a little behind the civil law, for various
principles of justice and culture must first reach maturity
within the State before anyone will feel anxious to find
them a corner in international conduct. Thus it was that
no crusade against slavery could claim the support of
international law till the general belief in the dignity of
man had become common in the nineteenth century.
Another factor which contributed to strengthen inter-
national law is the growing publicity of public life.
The days of the English Blue Book are now past; these
Blue, Yellow, and Green Books were only intended to
blind the Philistine with fumes of a flattery through which
he cannot see. A clever diplomat can easily hoodwink
a Parliament by these means. But the whole life of the
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? INTERNATIONAL LAW 171
'
State is lived to-day so entirely in the glare of the footlights
that a gross violation of international law at once arouses
real anger among all civilised peoples.
International Law in Time of Peace.
We may now study some of the principles affecting the
intercourse of nations in time of peace which have deve-
loped into law. All nations should be allowed to enjoy,'
in security and without distinction, the unifying influences
of commercial intercourse, science, and art. Ancient
peoples sometimes forbade other nations to practise
certain industries which were looked on as secret arts.
In the later Roman Empire it was forbidden to initiate
barbarians in ship-building, and similar monopolist
principles obtained even as late as the days of the Hansa
League. All that would be impossible to-day. The State
must take the risk of free competition with other States,
and that has been laid down in a whole series of treaties.
In classical times it was, further, the custom of
almost all nations to claim exclusive access to some parti-
cular sea. Later still, it has been held that certain seas
which were not properly called oceans belonged to
particular States. The Adriatic was the property of
Venice, the Ligurian Sea of Genoa, the Gulf of Bothnia
of Sweden. To-day the sea is said to belong to the States
which border on it only so far as it can be militarily con-
trolled from the coast, that is, within gunshot. But
in such questions, as in so many others, everything
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? 172 TREITSCHKE: HIS LIFE AND WORKS
ultimately depends on the actual power of the States
concerned. If a particular State can dominate a particular
sea, no well-meaning theorist can ever make that sea
public. The Caspian Sea belongs in name to two States,
Persia and Russia. But Russia is so strong that the Sea
is a Russian lake. So, again, if a power were to arise at
Constantinople strong enough to close the Bosphorus
to all comers, protestations against such an act would
be merely laughed at. Apart from this, the sea must be
regarded as open to all ships flying a recognised flag. The
high seas are policed by the navies of all nations, and every
man-of-war has the right to stop a merchantman and
examine its papers. This is the result of a long and
intricate development. All nations are now agreed that
occasional inconveniences suffered by their merchant
ships is a far lesser evil than piracy.
All international rights are safeguarded by treaties.
These treaties differ in many details from compacts made
under the civil law. In the first place they depend on good
faith on both sides, since there is no tribunal to compel
either side to observe them. The ancient Athenians were
therefore obeying a right instinct when they decided to
l limit the time during which their treaties with other nations
held good. Christian nations have tended rather to re-
j gard treaties as eternally binding, but their real attitude
is that they are willing to observe the treaty so long as the
relative strength of the States involved does not seriously
change. The more clearly this truth is proclaimed, and the
more dispassionately it is regarded, the safer will be the
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? INTERNATIONAL LAW 173
treaties made; States will not conclude agreements which
the other party is likely to break.
There are other treaties which are made under compul-
sion. Such compacts are not made in time of peace;
if Switzerland be unwilling in peace time to enter into a
treaty with Germany, she is free to refuse. But after
wars the victor imposes a compulsory peace on the con-
quered. Here again we seek in vain for the external judge
who can say with authority, " This treaty is compulsory. "
It does not appear that there can be any limit of time
implied in agreements under international law. Limits
are imposed on the duration of certain legal liabilities
under the ordinary law; for example, thefts might cease
to be actionable after twenty years. But this is really a
juristic makeshift. The framer of the law has authorised
a legal fiction on practical grounds. It is not thought
worth while to pursue a trifling offence after the lapse of a
long period. But that cannot be done in international
law. The lives of States last for centuries. One would
have to wait for years for the expiry of the time-limits
of nations. Frederick the Great had a perfect right to
claim Silesia as part of his kingdom, though the treaties
which secured it to his family were over two hundred
years old.
Much progress has been effected of late years in the
way of better drafting, and also of more distinct ratifica-
tion, of international treaties, as well as in lucidity of
wording. As a rule, such treaties ought not to contain
secret clauses. They merely obscure the true state of
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? 174 TREITSCHKE: HIS LIFE AND WORKS
affairs; they bring it about that States which are unaware
of them form false ideas of their mutual obligations, and
thus they may easily prove dangerous to the very State
which made them. Governments used to imagine that
secret clauses would trip up other governments; obviously
they are actually a double-edged weapon. There are,
of course, exceptions even to this. In 1866, when Prussia
made peace with the conquered States of Southern Ger-
many, an offensive and defensive alliance between them
was concluded in a series of secret treaties. There was
good reason for this. When France, a year later, revealed
her leanings towards war, it was then publicly announced
that North and South Germany would act together.
The sphere in which the principles of international
relations can be most definitely laid down is that of
private international law--the law which governs the
behaviour of any State towards individual foreigners.
It is a great step forward that, in any cultured State to-
day, a foreign private person is sure of the protection of
the law. It is a crime against the human race to urge the
view that force alone governs international law to-day.
That view is wholly untrue. Only--we must not expect
the impossible. The difficulty of the question becomes
apparent as soon as one looks into its details. One then
realises that all obligations of private as of other inter-
national law are entered into and kept with a certain
reservation, that, namely, they cannot be fulfilled when
they entail grave hurt to the State which promised to
carry them out. However many treaties we may con-
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? INTERNATIONAL LAW 175
elude in the domain of private international law, it is
always implied that we shall not keep them if a foreigner
becomes obnoxious to us. A State must be able to expel
inconvenient foreigners without declaring its reasons,
even though it has signed a treaty permitting foreigners
to reside within its borders. Thus, modern States
habitually expel persons suspected of being spies or
secret agents; if explanations had to be published
before active steps were taken in such cases, those
explanations would be mostly of an exceedingly un-
pleasant kind, and would merely imperil the friendly
relations of the States concerned. It is therefore more
sensible to take the line that any alien can be expelled
at any moment, with the simple comment: You are
undesirable. And the right to act thus must be firmly
maintained, if only in the interest of honest men, who
might otherwise be molested; this proceeding, which
appears cruel on the surface, proves in reality to be the
truest humanity. On the other hand, States must not
claim the right to expel their own subjects. That is to
claim something which is essentially illegitimate. When
Germany expelled the Jesuits we were at least sure that
they would find a roof elsewhere. But if Germany were
to expel its own common criminals it would be simply
blowing them into the air, for no other State would be
willing to receive them.
Wherever international law relating to private indivi-
duals has begun to grow up, mutual undertakings are
soon given between the various States, to assist one
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? 176 TREITSCHKE: HIS LIFE AND WORKS
another in the apprehension of criminals. Here we reach
some of the hardest problems of international law. It
is easy enough to assert generally that mankind as a whole
is bound to pursue criminals. That is recognised by all
noble nations and is easily embodied in their laws. But
how are we to draw the line between what is criminal and
what is not? To begin with, it is eminently necessary
to distinguish political and common offenders. Every
State must consider its own interests before it takes action
against traitors against some other State. There may
exist between two countries, nominally at peace, a latent
state of war, as is now the case between France and
Germany. In such a case it may well happen that the
man who is a political offender against the laws of his own
country is also very welcome to the other country; it
would be silly if the latter were to be forced to hand him
over to his own government. Treaties regulating the
extradition of common malefactors are easily made;
but no State will pledge itself to deliver up all political
offenders without the option of using its own judgment in
particular cases. Understandings, again, might be effected
as to anarchists pure and simple, who work with dynamite;
but about political offenders, as a class, no general treaty
can be drawn.
With respect to common criminals, the limits of extra-
dition must, of course, be settled by special agreements.
Such agreements must, of course, apply only to really
grievous offences. The judicial codes of various lands
vary so much that it is emphatically desirable that as
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? INTERNATIONAL LAW 177
many crimes as possible should be judged at home.
Experience has here shown that the further the jurisdic-
tion of a nation is extended the better the result.
All this general movement towards securing justice
naturally tends to an ordered union between the States
concerned, that is, to a political system in which the use
of fixed forms of action is accepted even in international
matters. The quarrels of seventeenth century Europe
on matters of ceremonial, which now strike us as so absurd,
had a sound basis, despite the ridiculous forms which
they assumed. They showed that the States of Europe
had begun to regard themselves as members of one family.
In a well-ordered household everyone must have his
fixed place, and his individual rights must be recognised
and maintained. The difference between Empires and
Small States, between Great Powers and States of the
second or third rank, still exists from a practical point of
view, though no documents specifically record it. A Great
Power may be defined as a State which could not, in the
given circumstances, be destroyed by any one other Power,
but only by a coalition. The preponderance of the Great
Powers in Europe has lately become very marked, and it
is to this that we owe a certain security now observable in
our international relations. The law affecting embassies
has been so firmly established since the Congress of
Aachen in 1818, that the clearest lines have been drawn
in all civilised States between the different classes of
diplomatists. Through the dominance of the leading
European Powers, the practice--indeed the rule--has
M
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? 178 TREITSCHKE: HIS LIFE AND WORKS
grown up that representation at a Congress of Great
Powers is granted only to those among the lesser States
which are directly concerned in the subject to be discussed.
But when once a Small State has been invited to the con-
gress, its voice carries as much weight as that of any other
State, large or small. These congresses are governed, not
by a vote of the majority, but by the liber urn veto of
natural law. A meeting which is held, not to conduct a
war but to formulate its results, cannot reasonably
be bound by majority votes; it must obtain unan-
imity.
It appears impossible to set up any general principle
governing international behaviour. The doctrine that
you may always intervene in the affairs of another State
is as false as the doctrine that you may never do so. A
State may find itself driven to regard the party struggles
in a neighbouring country as harmful to its own peace.
Were a cosmopolitan party to seize the reins in a State
which bordered with Germany, the issue might look so
threatening to us that we should have no option but to
interfere. To interfere, however, involves considerable
risk. The modern world has come to believe firmly in
the doctrine of national independence, and intervention
will always arouse resentment, and that not only in the
country which suffers the intervention. Hard experience
has taught this generation to be shy of mixing in the
internal affairs of its neighbours. But when a State's
existence seems to itself to be in peril, it both may and
will intervene.
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? INTERNATIONAL LAW 179
In Time of War.
The acceptance by States of common rules for mutual
relations, even in an age when physical force tears up
treaties, shows that a law governs their conduct, but a
defective and immature law. A state of war is usually
preceded by a hostile peace. Vain efforts at mutual under-
standing lead, in the first instance, to one of the States
passing laws detrimental to the other. That is legal enough,
if it is not fair, and the other State will straightway re-
taliate by a similar lack of consideration for its neighbour.
If one of the States trespass on an actual treaty-right,
the sufferer replies by equally conscious illegalities. Pre-
ludes of this kind lead finally to real war. As soon as
hostilities have actually begun, all treaties between the
two States come, legally, to an end. A formal declaration
of war is no longer needful in these days of railways and
telegraphs. Mobilizations of troops and discussions in
Cabinets and Parliaments give clear warning that the
State intends to open hostilities; the declaration is an
empty form. In the war of 1870 France did not send us
any declaration of war till a week after diplomatic rela-
tions had been broken off.
After the outbreak of war the primary object seems to
be to bring about new international conditions which
shall correspond to the real strength of the warring States,
and which they must recognise.
It is then legitimate
to carry on the war in the most drastic manner; the
ultimate aim--peace--will thus be attained as speedily
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? 180 TREITSCHKE: HIS LIFE AND WORKS
as possible. First, therefore, pierce the enemy to the
heart. The very sharpest weapons may be used, provided
that they do not inflict on the wounded needless torments.
Philanthropists may declaim about burning shells which
fall into the powder magazines of wooden warships;
that is all beside the point. The States themselves must
settle what weapons shall not be used; at the request
of Russia it has been agreed not to use explosive bullets
for rifles. A warring nation is wholly justified in taking
every advantage of every weakness in its opponent. If
its enemy is disturbed by internal revolts and conspiracies,
it may make full use of them; in 1866 it was only the
swift march of events that prevented us Prussians from
entering into agreements with the Hungarians against
their Austrian masters.
A warring nation may call to its fighting line the whole of
its troops--whether barbarian or civilised. On this point
we must keep an open mind and avoid prejudice against
any particular nation. There were howls in Germany
during the Franco-Prussian war because the French set
the Turcos to fight a highly civilised European people.
The passions of war readily breed such protests, but
science must take a dispassionate view and declare that
action, such as that of the French, was not contrary to
international law. A belligerent State both may and
ought to bring into the field all its physical resources,
that is, all its troops of every kind. For where can a line
be drawn? Which of all its charming subject-races
should Russia, for example, rule out of court? The
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? INTERNATIONAL LAW 181
entire physical resources of the State can, and must, be
used in war. But they must only be used when they
have been embodied in those chivalrous forms of
organization which have been gradually established
during a long series of wars. The use of the Turcos
by the French put a curious complexion on their claim
to march at the head of civilisation. Indeed, many of
the complaints made in this respect arise from the fact
that people demand from a nation more than it is able to
fulfil. We all know that in modern national warfare
every gallant subject is a spy. The expulsion of the
80,000 Germans from France at the beginning of the
Franco-Prussian war in 1870 was, therefore, in accordance
with international law; the one point to which we can
object in the whole proceeding is, that the French
displayed a certain brutality in dealing with these
Germans.
The degree of humanity to be observed in warfare
is affected by the doctrine that a war can only be waged
between two States, and not between individual members
of those States. This doctrine regulates all warfare in
theory, though in practice only that on land. It should
be possible to recognise, by a distinguishing mark, all
men whom the State authorises to wage war for it, and
who must, therefore, be treated as soldiers. We are
not as yet all agreed on this point, and this failure to
agree constitutes a grievous gap in international law.
Humanity in war is entirely dependent on the question
as to whether the soldier feels that his only opponent
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? 182 TREITSCHKE: HIS LIFE AND WORKS
is the enemy's soldier, and that he need not fear an
attack behind a bush from every peasant with whom
he has had peaceful dealings half an hour earlier. If
the soldier journeying through a hostile country does
not know whom to regard as soldier, and whom to look
upon as robber and highwayman, he is driven to show
himself cruel and heartless. No one can be regarded
as a soldier unless he has taken the military oath, unless
he is subject to military law, and unless he wears some
distinctive token, even if it be not (strictly speaking) a
complete uniform. It is a self-evident fact that bands
of unauthorised volunteers must expect to meet with
harsh and ruthless treatment. It is imperative that we
should come to some sort of international agreement as
to the tokens whereby one may know an armed man
to be an actual member of an authorised army. This
point was discussed at Brussels in 1874, and there the
conflicting interests of the different parties were thrown
into high relief. Little States like Switzerland were in
no way anxious to bind themselves on such a question.
Each State is, at present, its own judge in the matter,
and must itself determine which of its enemies it pro-
poses to treat as units of an army, and which as simple
robbers. Regarded from a moral point of view, a real
respect is due to the action of many " Franc-tireurs " in
1870 and 1871, whom despair drove to try to save their
country. But in the light of international law they
were mere highwaymen. In the same way, Napoleon was
right in 1809 to treat Schill and his associates as robbers.
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? INTERNATIONAL LAW 183
Schill, a Prussian staff officer, himself deserted, and
induced his men to desert, and then began to wage war
against France. He was then, according to interna-
tional law, nothing more than a robber chief. The
King's anger at this proceeding knew no bounds. What
was there left to hold the State together if every staff
officer chose to form a little army on his own? But, in
spite of these facts, Napoleon's resolve to adhere to the
letter of the law in this affair was an act of unparalleled
cruelty, and also an act of great imprudence. Everyone
with noble instincts will side with Schill. Schenkendorf
felt this when he represented Schill as saying:
"My King himself will say to me,
'Rest thou in peace, my faithful Schill. '"
It would, however, be impossible to maintain that the
enemy's action was any infringement of international
law.
When it has once been determined who belongs to the
army, and who is entitled to the chivalrous treatment
due to a prisoner of war, private property belonging to
an enemy may be very generally spared. But in this
matter also it must be clearly understood that we must
not, in the name of humanity, outrage the sense of
honour of a nation. At the congress held at Brussels
the Prussians proposed an international agreement that,
in a conquered province, the civil government should
pass ipso jure into the hands of the military authorities
of the victorious army. Such an arrangement would,
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? 184 TREITSCHKE: HIS LIFE AND WORKS
in many ways, prove beneficial to material well-being.
A general who knows that he is entitled, by international
law, to demand obedience from foreign authorities will
be able to keep a more decided check on his troops, and
to behave generally in a more humane manner. But
there are possessions which stand on a higher level than
trade and traffic. This German demand expressed all
the confidence of a people accustomed to victory. But
could we seriously wish that Prussian State authorities
\ should, by law, be compelled to obey a Russian General?
I Excessive humanity can lead to dishonour, and thus
become inhuman. We expect our countrymen to use
all lawful means to defeat the enemy. Think for a
moment of our own past experiences. Every East-
Prussian knows about President Dohna, who, during the
Russian occupation, carried off the receipts and taxes to
the lawful King, and did his best to work against the
enemy. Shall that be forbidden in the name of philan-
thropy? Is not patriotism, in this case, a higher duty?
It matters little whether a Russian, embittered by this
kind of resistance on the part of good and honest Prus-
sians, burns a few more villages than he at first pur-
posed in his knoutish mind. This is a consideration of
far less importance than that a nation should keep the
shield of its honour bright. The moral possessions of
a nation ought not to be destroyed in the name of
humanity by international law.
Even when the power of an enemy is purely military
it is still possible to give the utmost protection to private
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? INTERNATIONAL LAW 185
property, provided that the members of the hostile
army are easily recognisable. Requisitions are allowed;
it is a general practice to give promissory notes in ex-
change. The task of getting them all paid is, of course,
left to the conquered. War against private property
as such, of which the laying waste of the Palatinate at
the end of the seventeenth century by Melac, furnishes
us with a dreadful example; the wanton burning of
villages is regarded to-day by all civilised States as an
infringement of the law of nations. Private property
may only be injured in so far as such injury is absolutely
essential to the success of the war.
But international law becomes mere clap-trap when
these principles are applied to barbarian nations. A
negro tribe must be punished by having its villages
burnt; nothing will be achieved without an example
of this kind. Any failure on the part of the German
Empire to base its conduct on these principles to-day
could not be said to proceed from humanity or a fine
sense of justice, but merely from scandalous weakness. *
And even where dealing with civilised nations, it is
right to legalise only those practices which are the real
outcome of the general sense of obligation common to
all the nations concerned. The State must not be used
as an instrument wherewith to try experiments in humani-
tarianism. How drastic an example of such an error
is furnished by the Franco-Prussian war! We declared,
in a burst of false humanity, that we would respect
* Lecture delivered during the winter of 1891-2.
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? 186 TREITSCHKE: HIS LIFE AND WORKS
the private property of the French at sea. The idea was
both noble and humane. We failed, however, to observe
that among the other States there is one--I mean Eng-
land--which is fundamentally averse to being schooled
by noble thoughts; we also failed to realise that France
would not pay us back in our own coin. This one-
sided German humanitarianism simply released France
from the necessity of using her navy to protect her
merchant ships against German men-of-war. Her whole
fleet was thus set free for the immediate purposes of war.
The marine infantry and the really excellent marine
artillery were landed, and during the winter we very
frequently found ourselves fighting with these marines.
It will thus be seen that the undertaking entered upon
by us merely released troops to be used against our-
selves. Every advance in humanitarianism as ex-
pressed in international law should, therefore, be based
on the principle of reciprocity.
But there are many items about which we are in doubt,
whether they are the property of the State or of private
persons. The property of the State is, obviously and
naturally, the lawful booty of the victor. This is prim-
arily true of all kinds of military supplies in the widest
sense of the word, and of such things as State railways.
But to which class must we relegate the rolling stock
of the private railway companies, to which the State has
granted an actual monopoly? The enemy may, of
course, use the railway plant belonging to these companies
during the war; but may he keep the carriages and
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? INTERNATIONAL LAW 187
trucks? Our decision to do so during the last war
was a perfectly just one, in view of the nature of the
French railways. They were, in actual fact, the property
of the State, and we kept the carriages which we took,
and sold them back to France when terms of peace were
arranged. The question is an even more difficult one
when it relates to banks. There are certain banks, among
them the Bank of Germany, in which a body of bankers
outside the country have a material interest. Such a
practice is very useful from a commercial point of view;
the bank is thus kept in touch with the great business
houses, and in a position to take its part in the com-
mercial activities of the moment. It would be, however,
a pure illusion to suppose that the Bank of Germany
would thereby be saved from confiscation by a conqueror.
An enemy would certainly look upon it as a State bank,
and the fact that a few private persons had an interest
in it would in no way affect his decision.
It has also become a principle of international law
that the great treasures of civilisation, which serve the
purposes of Art and Science, and are looked upon as
the property of humanity as a whole, shall be secured
against theft and pillage. In earlier times this principle
was trampled under foot.
Individual members of the standing armies, and all
persons authorised to take part in national defence, have
a right to demand honourable treatment as prisoners of
war, and all attempts to force prisoners into the enemy's
army is contrary to international law. It is, however,
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? 188 TREITSCHKE: HIS LIFE AND WORKS
doubtful whether this principle obtained during the last
century. In matters such as these everything depends
on the sense of right and wrong which animates the age.
At the beginning of the eighteenth century the mercenary
idea was still so grossly prevalent that a French regiment,
consisting of course of Germans, was taken over by the
Saxons at Hochstadt (1703), only to be lost by them at a
later date, when it went over to the Swedes. At Stralsund
it went over to the Prussians, with whom it finally
remained, under the name of "Jung Anhalt. " But
when Frederick the Great forced the captured Saxons
into the Prussian Army, at Pima, it became evident
that a practice which had once been followed as a matter
of course had now become impossible. On that occasion
the Saxons deserted from the Prussian Army in hordes.
Nowadays an attempt of this kind would be not only a
palpable infringement of international law, but also an
unparalleled piece of stupidity.
. It goes without saying that every State has not only
\ the right to wage war, but also to declare itself neutral
\ in the wars of others as far as material conditions permit.
J If a State is not in a condition to maintain its neutrality,
: all talk about the same is mere clap-trap. Neutrality
needs as much defending as the partisanship of belli-
gerent States. It is the duty of a neutral State to dis-
arm every soldier who crosses its borders. If it is
unable to do so the circumstances justify the belligerent
States in ceasing to observe its neutrality, even if it has
allowed an armed enemy to enter but one village.
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? INTERNATIONAL LAW 189
It is to be regretted that a sharp distinction is still
drawn in military law between its workings on land
and its workings at sea. All who have eyes to see must
here be struck by the disastrous influence of English
naval power on universal culture and justice. We have
not as yet obtained a "balance of power" at sea, and
Schiller's melancholy dictum, therefore, still holds good:
"Among the waves is chaos,
And nothing can be owned upon the sea. "
Such a state of things is deeply humiliating to our pride
as a civilised nation. England is alone to blame, for
England is so immensely pre-eminent at sea that she
can do whatever she likes. All who desire to be humane, j
all who thirst to realise in some degree the ideals of
international law on the high seas, must work for a
balance of power in this direction also. One is con-
stantly surprised by the infatuation of public opinion
at the present day. Countries marching on the wrong
road are always glorified, and the sentimentality of
Belgian exponents of international law, and England's
barbarous views regarding maritime law, are perpetually
admired. All the other Powers would be prepared to
allow free circulation, under certain conditions, to mer-
chant ships in time of war; England alone maintains
the principle that no distinction is to be made at sea
between the property of the State and that of pri-
vate persons. And as long as this one Power insists on
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