But how are we to draw the line
between what is criminal and what is not?
between what is criminal and what is not?
Treitschke - 1914 - His Doctrine of German Destiny
We cannot treat history as if we were
judges in a civil court of law. If we did that, we
should have to say that Prussia, having signed the
treaty of Tilsit, in 1807, ought not to have attacked
Napoleon in 1813. But that treaty, like all others,
was concluded rebus sic stantibus, and, thank God,
things had completely changed in the six years.
A whole nation found itself in a state to escape
from intolerable thraldom.
Never disregard the free moral life of the nation
as a whole. No State in the wide world can ven-
ture to relinquish the "ego" of its sovereignty.
If conditions have been imposed on it which cripple
it or which it cannot observe, the nation honours
itself in breaking them. It is one of the most
admirable facts in history that a nation can recover
from material loss far sooner than from the slight-
est insult to its honour. The loss of a province
may be accepted as inevitable; the endurance of
what we deem to be servitude is an unending
insult to a noble-hearted nation. Napoleon, by
stationing his troops on Prussian soil, stirred up
fierce hatred in the veins even of the most patient.
When a State has been wounded in its honour the
breach of a treaty is but a matter of time. Eng-
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? 1 68 Treitschke
land and France had to admit this in 1870. In
their arrogant pride at the end of the Crimean
War, they had compelled their exhausted enemy
to agree to remove all her warships from the
Black Sea. Russia seized the opportunity offered
by the Franco-Prussian War to break the agree-
ment, and she was fully within her rights.
If a State finds that any of its existing treaties
have ceased to express the relative strength of
itself and the other treaty State, and if it cannot
induce the latter to a friendly cancelment of the
treaty, then has come the moment for the " legal
proceedings" customary between nations, that
is, for war. And in such circumstances war is de-
clared in the full consciousness that the nation is
doing its duty. Personal greed plays no part in
such an act. Those who declare war then say to
themselves, "Our treaty-obligation has failed to
correspond with our relative strength at this
moment; we cannot come to friendly terms; we
turn to the great assize of the nations. " The
justice of a war depends wholly on the conscious-
ness of its moral necessity. And since there
neither can be nor ought to be any external coer-
cive power controlling the great personages of a
State, and since history must ever remain in a
state of change, war is in itself justifiable ; it is an
ordinance of God. No doubt, a State may err
as to the necessity of applying this means of
coercion. Niebuhr spoke truly, when he said
that war can establish no right which did not
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? International Law . 169
previously exist. Just for this reason, we may
look upon certain deeds of violence as expiated
in the very act of being committed for example,
the completion of German or of Italian unity.
On the other hand, since not every war produces
the results which it ought to produce, the historian
must now and again withhold his judgment and
remember that the life of a State lasts for centu-
ries. The proud saying of the conquered Pied-
montese, " We will begin again," will always have
its place in the history of noble nations.
War will never be swept from the earth by
courts of arbitration. In questions that touch
the very life of a State, the other members of the
community of States cannot possibly be impartial.
They must take sides just because they belong to
the community of States and are drawn together
or forced apart by the most diverse interests.
If Germany were foolish enough to try to settle
the question of Alsace-Lorraine by arbitration,
what European Power could be impartial? You
could not find impartiality even in dreamland.
Hence the fact well known to us all that though
international congresses may formulate the results
of a war and set them out in juristic language, they
can never avert a threatened outbreak of hos-
tilities. Other States can be impartial only in
questions of third-rate importance.
We have now agreed J;hatwar is just and moral^
and that the ideal of eternal peace is both unjust
and immoral, and impossible. ^-purely intel-
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? 170 Treitschke
lectual life, with its enervating effect on the thinker,
may make men think otherwise; let us get rid of
the undignified attitude of those who call possible
what never can happen. So long as human nature,
with its passions and its sins, remains what it is,-
the sword shall not depart from the earth. It is
curious to see how, in the writings of the pacificists,
unconsciously the sense of national honour cuts
into the talk of cosmopolitanism. In the Old
Testament the prophet Joel demanded that Israel
should win a bloody battle over the heathen in
the valley of Jehosaphat; Victor Hugo clamours
in like manner that the Germans shall first get a
flogging before universal peace sets in. Again
and again it must be repeated that war, the violent
form of the quarrels of the nations, is the direct
outcome of the very nature of the State. The
mere fact that there are many States proves, of
itself, that war is necessary. Frederick the Great
said that the dream of universal peace is a phan-
tom which everyone ignores so soon as it affects
his own freedom of action. A lasting balance of
power, he adds, is inconceivable.
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 un-
chained in war must be regulated by laws. The
result has been the gradual establishment, by
common consent, of rules and customs to be ob-
served in time of war. The greatest successes
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? International Law 171
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 any one
will feel anxious to find them a corner in inter-
national conduct. Thus it was that no crusade
against slavery could claim the support of inter-
national law till the general belief in the dignity
of man had become common in the nineteenth
century.
Another factor which contributed to strengthen
international 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 could not see. A
clever diplomat can easily hoodwink a parliament
by these means. But the whole life of the State
is lived today so entirely in the glare of the foot-
lights that a gross violation of international law
at once arouses real anger among all civilized
peoples.
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? 172 Treitschke
INTERNATIONAL LAW IN TIME OF PEACE
We may now study some of the principles affect-
ing the intercourse of nations in time of peace
which have developed 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 imitate barbarians in shipbuilding, and similar
monopolist principles obtained even as late as the
days of the Hansa League. All that would be
impossible today. 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 particular sea. Later still, it has been held
that certain seas which were not properly called
oceans belonged to particular States. The Adri-
atic was the property of Venice, the Ligurian Sea
of Genoa, the Gulf of Bothnia of Sweden. Today
the sea is said to belong to the States which border
on it only so far as it can be militarily controlled
from the coast, that is, within gunshot. But in
such questions, as in so many others, everything
ultimately depends on the actual power of the
States concerned. If a particular State can
dominate a particular sea, no well-meaning the-
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? International Law 173
orist 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 recognized 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 are 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 limit the time during which their
treaties with other nations held good. Christian
nations have tended rather to regard 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
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? 174 Treitschke
it is regarded, the safer will be the treaties made ;
States will not conclude agreements which the
other party is likely to break.
There are other treaties which are made under
compulsion. 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 conquered. Here
again we seek in vain for the external judge who
can say with authority, "This treaty is compul-
sory. "
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 author-
ized 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 can-
not 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
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? International Law 175
distinct ratification, 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 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 Germany,
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 Ger-
many would act together.
The sphere in which the principles of interna-
tional relations can be most definitely laid down
is that of private international law, the law which
governs the behaviour of any State towards indi-
vidual foreigners. It is a great step forward
that, in any cultured State today, 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 today.
That view is wholly untrue. Only we must not
expect the impossible. The difficulty of the
question becomes apparent as soon as one looks
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? 176 Treitschke
into its details. One then realizes that all obli-
gations of private as of other international law
are entered into and kept with a certain reserva-
tion, 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 conclude in the domain of private interna-
tional 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 for-
eigners, 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 pub-
lished before active steps were taken in such cases,
those explanations would be mostly of an exceed-
ingly unpleasant 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
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? International Law 177
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
individuals has begun to grow up, mutual un-
dertakings are soon given between the various
States to assist one 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 recognized
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. Un-
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? 178 Treitschke
derstandings, again, might be effected as to anar-
chists, 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 extradition must, of course, be settled by special
agreements. Such agreements must, of course,
apply only to really grievous offences. The ju-
dicial codes of various lands vary so much that
it is emphatically desirable that as many crimes
as possible should be judged at home. Experi-
ence has here shown that the farther the juris-
diction of a nation is extended, the better the
result.
All this general movement towards securing
justice naturally tends to an ordered union be-
tween 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 recognized and
maintained. The difference between empires and
small States, between great Powers and States of
the second or third rank, still exists from a practi-
cal point of view, though no documents specifically
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? International Law 179
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 ob-
servable in our international relations. The law
affecting embassies had been so firmly established
since the Congress of Aachen in 1818, that the
clearest lines have been drawn in all civilized
States between the different classes of diplomatists.
Through the dominance of the leading European
Powers, the practice indeed the rule has 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 Congress, 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 liberum 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 unanimity.
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 neigh-
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? 178 Treitschke
derstandings, again, might be effected as to anar-
chists, 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 extradition must, of course, be settled by special
agreements. Such agreements must, of course,
apply only to really grievous offences. The ju-
dicial codes of various lands vary so much that
it is emphatically desirable that as many crimes
as possible should be judged at home. Experi-
ence has here shown that the farther the juris-
diction of a nation is extended, the better the
result.
All this general movement towards securing
justice naturally tends to an ordered union be-
tween 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 recognized and
maintained. The difference between empires and
small States, between great Powers and States of
the second or third rank, still exists from a practi-
cal point of view, though no documents specifically
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? International Law 179
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 ob-
servable in our international relations. The law
affecting embassies had been so firmly established
since the Congress of Aachen in 1818, that the
clearest lines have been drawn in all civilized
States between the different classes of diplomatists.
Through the dominance of the leading European
Powers, the practice indeed the rule has 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 Congress, 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 liberum 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 unanimity.
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 neigh-
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? i8o Treitschke
bouring 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.
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 understanding 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 retaliate by a similar lack of considera-
tion for its neighbour. If one of the States trespass
on an actual treaty right, the sufferer replies by
equally conscious illegalities. Preludes of these
kinds lead finally to real war. As soon as hostili-
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? International Law 181
ties 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 parlia-
ments 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 re-
lations 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 recognize. It is then legitimate to carry on
the war in the most drastic manner; the ultimate
aim peace will thus be attained as speedily 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 weak-
ness 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
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? 1 82 Treitschke
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
civilized. 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 civilized 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 bel-
ligerent 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
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 com-
plexion on their claim to march at the head of
civilization. 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 expul-
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? International Law 183
sion 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 war-
fare is affected by the doctrine that a war can
only be waged between two States, and not be-
tween individual members of those States. This
doctrine regulates all warfare in theory, though in
practice only that on land. It should be possible
to recognize, by a distinguishing mark, all men
whom the State authorizes 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 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 com-
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? 184 Treitschke
plete uniform. It is a self-evident fact that bands
of unauthorized volunteers must expect to meet
with harsh and ruthless treatment. It is impera-
tive that we should come to some sort of inter-
national agreement as to the tokens whereby one
may know an armed man to be an actual member
of an authorized army. This point was discussed
at Brussels, in 1874, an d 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 proposes 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. Schill, a Prussian staff officer, him-
self deserted, and induced his men to desert, and
then began to wage war against France. He was
then, according to international 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 of his own? But, in
spite of these facts, Napoleon's resolve to adhere to
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? International Law 185
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 in-
ternational 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 prop-
erty 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 au-
thorities of the victorious army. Such an arrange-
ment would, 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
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? 186 Treitschke
level than trade and traffic.
judges in a civil court of law. If we did that, we
should have to say that Prussia, having signed the
treaty of Tilsit, in 1807, ought not to have attacked
Napoleon in 1813. But that treaty, like all others,
was concluded rebus sic stantibus, and, thank God,
things had completely changed in the six years.
A whole nation found itself in a state to escape
from intolerable thraldom.
Never disregard the free moral life of the nation
as a whole. No State in the wide world can ven-
ture to relinquish the "ego" of its sovereignty.
If conditions have been imposed on it which cripple
it or which it cannot observe, the nation honours
itself in breaking them. It is one of the most
admirable facts in history that a nation can recover
from material loss far sooner than from the slight-
est insult to its honour. The loss of a province
may be accepted as inevitable; the endurance of
what we deem to be servitude is an unending
insult to a noble-hearted nation. Napoleon, by
stationing his troops on Prussian soil, stirred up
fierce hatred in the veins even of the most patient.
When a State has been wounded in its honour the
breach of a treaty is but a matter of time. Eng-
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? 1 68 Treitschke
land and France had to admit this in 1870. In
their arrogant pride at the end of the Crimean
War, they had compelled their exhausted enemy
to agree to remove all her warships from the
Black Sea. Russia seized the opportunity offered
by the Franco-Prussian War to break the agree-
ment, and she was fully within her rights.
If a State finds that any of its existing treaties
have ceased to express the relative strength of
itself and the other treaty State, and if it cannot
induce the latter to a friendly cancelment of the
treaty, then has come the moment for the " legal
proceedings" customary between nations, that
is, for war. And in such circumstances war is de-
clared in the full consciousness that the nation is
doing its duty. Personal greed plays no part in
such an act. Those who declare war then say to
themselves, "Our treaty-obligation has failed to
correspond with our relative strength at this
moment; we cannot come to friendly terms; we
turn to the great assize of the nations. " The
justice of a war depends wholly on the conscious-
ness of its moral necessity. And since there
neither can be nor ought to be any external coer-
cive power controlling the great personages of a
State, and since history must ever remain in a
state of change, war is in itself justifiable ; it is an
ordinance of God. No doubt, a State may err
as to the necessity of applying this means of
coercion. Niebuhr spoke truly, when he said
that war can establish no right which did not
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? International Law . 169
previously exist. Just for this reason, we may
look upon certain deeds of violence as expiated
in the very act of being committed for example,
the completion of German or of Italian unity.
On the other hand, since not every war produces
the results which it ought to produce, the historian
must now and again withhold his judgment and
remember that the life of a State lasts for centu-
ries. The proud saying of the conquered Pied-
montese, " We will begin again," will always have
its place in the history of noble nations.
War will never be swept from the earth by
courts of arbitration. In questions that touch
the very life of a State, the other members of the
community of States cannot possibly be impartial.
They must take sides just because they belong to
the community of States and are drawn together
or forced apart by the most diverse interests.
If Germany were foolish enough to try to settle
the question of Alsace-Lorraine by arbitration,
what European Power could be impartial? You
could not find impartiality even in dreamland.
Hence the fact well known to us all that though
international congresses may formulate the results
of a war and set them out in juristic language, they
can never avert a threatened outbreak of hos-
tilities. Other States can be impartial only in
questions of third-rate importance.
We have now agreed J;hatwar is just and moral^
and that the ideal of eternal peace is both unjust
and immoral, and impossible. ^-purely intel-
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? 170 Treitschke
lectual life, with its enervating effect on the thinker,
may make men think otherwise; let us get rid of
the undignified attitude of those who call possible
what never can happen. So long as human nature,
with its passions and its sins, remains what it is,-
the sword shall not depart from the earth. It is
curious to see how, in the writings of the pacificists,
unconsciously the sense of national honour cuts
into the talk of cosmopolitanism. In the Old
Testament the prophet Joel demanded that Israel
should win a bloody battle over the heathen in
the valley of Jehosaphat; Victor Hugo clamours
in like manner that the Germans shall first get a
flogging before universal peace sets in. Again
and again it must be repeated that war, the violent
form of the quarrels of the nations, is the direct
outcome of the very nature of the State. The
mere fact that there are many States proves, of
itself, that war is necessary. Frederick the Great
said that the dream of universal peace is a phan-
tom which everyone ignores so soon as it affects
his own freedom of action. A lasting balance of
power, he adds, is inconceivable.
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 un-
chained in war must be regulated by laws. The
result has been the gradual establishment, by
common consent, of rules and customs to be ob-
served in time of war. The greatest successes
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? International Law 171
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 any one
will feel anxious to find them a corner in inter-
national conduct. Thus it was that no crusade
against slavery could claim the support of inter-
national law till the general belief in the dignity
of man had become common in the nineteenth
century.
Another factor which contributed to strengthen
international 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 could not see. A
clever diplomat can easily hoodwink a parliament
by these means. But the whole life of the State
is lived today so entirely in the glare of the foot-
lights that a gross violation of international law
at once arouses real anger among all civilized
peoples.
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? 172 Treitschke
INTERNATIONAL LAW IN TIME OF PEACE
We may now study some of the principles affect-
ing the intercourse of nations in time of peace
which have developed 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 imitate barbarians in shipbuilding, and similar
monopolist principles obtained even as late as the
days of the Hansa League. All that would be
impossible today. 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 particular sea. Later still, it has been held
that certain seas which were not properly called
oceans belonged to particular States. The Adri-
atic was the property of Venice, the Ligurian Sea
of Genoa, the Gulf of Bothnia of Sweden. Today
the sea is said to belong to the States which border
on it only so far as it can be militarily controlled
from the coast, that is, within gunshot. But in
such questions, as in so many others, everything
ultimately depends on the actual power of the
States concerned. If a particular State can
dominate a particular sea, no well-meaning the-
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? International Law 173
orist 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 recognized 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 are 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 limit the time during which their
treaties with other nations held good. Christian
nations have tended rather to regard 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
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? 174 Treitschke
it is regarded, the safer will be the treaties made ;
States will not conclude agreements which the
other party is likely to break.
There are other treaties which are made under
compulsion. 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 conquered. Here
again we seek in vain for the external judge who
can say with authority, "This treaty is compul-
sory. "
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 author-
ized 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 can-
not 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
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? International Law 175
distinct ratification, 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 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 Germany,
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 Ger-
many would act together.
The sphere in which the principles of interna-
tional relations can be most definitely laid down
is that of private international law, the law which
governs the behaviour of any State towards indi-
vidual foreigners. It is a great step forward
that, in any cultured State today, 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 today.
That view is wholly untrue. Only we must not
expect the impossible. The difficulty of the
question becomes apparent as soon as one looks
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? 176 Treitschke
into its details. One then realizes that all obli-
gations of private as of other international law
are entered into and kept with a certain reserva-
tion, 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 conclude in the domain of private interna-
tional 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 for-
eigners, 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 pub-
lished before active steps were taken in such cases,
those explanations would be mostly of an exceed-
ingly unpleasant 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
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? International Law 177
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
individuals has begun to grow up, mutual un-
dertakings are soon given between the various
States to assist one 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 recognized
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. Un-
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? 178 Treitschke
derstandings, again, might be effected as to anar-
chists, 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 extradition must, of course, be settled by special
agreements. Such agreements must, of course,
apply only to really grievous offences. The ju-
dicial codes of various lands vary so much that
it is emphatically desirable that as many crimes
as possible should be judged at home. Experi-
ence has here shown that the farther the juris-
diction of a nation is extended, the better the
result.
All this general movement towards securing
justice naturally tends to an ordered union be-
tween 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 recognized and
maintained. The difference between empires and
small States, between great Powers and States of
the second or third rank, still exists from a practi-
cal point of view, though no documents specifically
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? International Law 179
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 ob-
servable in our international relations. The law
affecting embassies had been so firmly established
since the Congress of Aachen in 1818, that the
clearest lines have been drawn in all civilized
States between the different classes of diplomatists.
Through the dominance of the leading European
Powers, the practice indeed the rule has 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 Congress, 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 liberum 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 unanimity.
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 neigh-
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? 178 Treitschke
derstandings, again, might be effected as to anar-
chists, 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 extradition must, of course, be settled by special
agreements. Such agreements must, of course,
apply only to really grievous offences. The ju-
dicial codes of various lands vary so much that
it is emphatically desirable that as many crimes
as possible should be judged at home. Experi-
ence has here shown that the farther the juris-
diction of a nation is extended, the better the
result.
All this general movement towards securing
justice naturally tends to an ordered union be-
tween 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 recognized and
maintained. The difference between empires and
small States, between great Powers and States of
the second or third rank, still exists from a practi-
cal point of view, though no documents specifically
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? International Law 179
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 ob-
servable in our international relations. The law
affecting embassies had been so firmly established
since the Congress of Aachen in 1818, that the
clearest lines have been drawn in all civilized
States between the different classes of diplomatists.
Through the dominance of the leading European
Powers, the practice indeed the rule has 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 Congress, 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 liberum 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 unanimity.
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 neigh-
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? i8o Treitschke
bouring 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.
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 understanding 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 retaliate by a similar lack of considera-
tion for its neighbour. If one of the States trespass
on an actual treaty right, the sufferer replies by
equally conscious illegalities. Preludes of these
kinds lead finally to real war. As soon as hostili-
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? International Law 181
ties 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 parlia-
ments 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 re-
lations 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 recognize. It is then legitimate to carry on
the war in the most drastic manner; the ultimate
aim peace will thus be attained as speedily 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 weak-
ness 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
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? 1 82 Treitschke
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
civilized. 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 civilized 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 bel-
ligerent 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
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 com-
plexion on their claim to march at the head of
civilization. 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 expul-
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? International Law 183
sion 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 war-
fare is affected by the doctrine that a war can
only be waged between two States, and not be-
tween individual members of those States. This
doctrine regulates all warfare in theory, though in
practice only that on land. It should be possible
to recognize, by a distinguishing mark, all men
whom the State authorizes 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 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 com-
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? 184 Treitschke
plete uniform. It is a self-evident fact that bands
of unauthorized volunteers must expect to meet
with harsh and ruthless treatment. It is impera-
tive that we should come to some sort of inter-
national agreement as to the tokens whereby one
may know an armed man to be an actual member
of an authorized army. This point was discussed
at Brussels, in 1874, an d 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 proposes 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. Schill, a Prussian staff officer, him-
self deserted, and induced his men to desert, and
then began to wage war against France. He was
then, according to international 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 of his own? But, in
spite of these facts, Napoleon's resolve to adhere to
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? International Law 185
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 in-
ternational 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 prop-
erty 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 au-
thorities of the victorious army. Such an arrange-
ment would, 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
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? 186 Treitschke
level than trade and traffic.
