the Reformation, and the doctrine of the independence of states was substituted for it by the great Protestant jurists to whom we owe the form which International Law has assumed in modern times. There is a tendency on the part of many writers to regard independence and sovereignty as attributes of states, conferred on them in some mysterious manner, quite apart from the provisions of the law which defines their rights and obligations. We are told that they spring from the nature of the society existing among nations, that they are necessary to the conception of a state, or that they are conferred by the Great Author of society. Such speculations are shown to be baseless by a simple reference to the facts of history. States, like individuals, have what rights are conferred upon them by the law under which they live. There was a time when their full independence was denied by the law then existing. But since the Peace of Westphalia of 1648 brought into existence the modern European order, the principle of complete independence has been accepted by statesmen and embodied in the international code of the civilized world.

states not fully

independent.

§ 71.

Part-sovereign states do not possess the right of independence to the full, though to save appearances they are Part-sovereign sometimes spoken of in diplomatic documents as independent. But it is clear that limitations on their external sovereignty are also limitations on their independence. For instance, by Article 4 of the Treaty of February 27, 1884, the Transvaal Republic of South Africa agreed to make no treaty with any state or nation, other than the Orange Free State, nor with any native tribe east or west of the Republic, without the approval of Great Britain. Inasmuch, therefore, as the rulers of the Transvaal were bound to obtain the assent of Great Britain before they could take effective action in a most important sphere, the Boer Republic

could not, in strictness, be said to possess the full rights of independence, though it was called an independent state in treaties and despatches.1

§ 72.

Voluntary restric

tions upon the

freedom of action

of sovereign

states.

Even in the case of fully sovereign states, and in regard to the conduct of the most powerful among them, restrictions upon unlimited freedom of action are imposed temporarily by events and circumstances; but since they are not permanent legal incidents of the political existence of the communities subjected to them, but are in the main necessary conditions of social life imposed by the good sense of the powers concerned, they do not detract from the independence and sovereignty of the states which live under them. They often spring from treaty stipulations entered into voluntarily by governments to avoid difficulties in their future intercourse. For example, the United States and Great Britain bound themselves by the Clayton-Bulwer Treaty of 1850 to acquire no territory in Central America; and in 1886 Great Britain and Germany made a formal declaration whereby the limits of.their respective spheres of influence in the Western Pacific were defined, and each power pledged itself not to intrude into the region assigned to the other.3 Another source of selfimposed restrictions upon the freedom of action granted by the right of independence is to be found in consideration for the corresponding right of other states. Just as in the society formed by individuals, friendly intercourse would be impossible if each insisted upon using the full freedom secured to him by law without regard to the feelings and convenience of his neighbors, so in the society of nations a similar abstinence is necessary, if peace and harmony are to be preserved. Mutual concession is the price paid for social life. A state which conducted its foreign policy, regulated

1 In the negotiations preceding the final rupture with Great Britain it claimed to be a sovereign international state." The war which it commenced in 1899 led in 1900 to the destruction of the qualified independence it had enjoyed since 1884. 2 Treaties of the United States, p. 441.

3 British State Papers, Western Pacific, No. 1 (1886).

its commerce, and exercised its jurisdiction without thought or care for the wishes and interests of other states, would doubtless be within its strict right as an independent political community; but it would soon discover that it was regarded as an international nuisance and subjected to an exceedingly unpleasant process of retaliation.

Involuntary re

freedom of action

§ 73.

Sometimes an independent state finds itself obliged to submit for a while to restraints imposed upon it by superior force, as when Prussia was forbidden by Napostrictions upon the leon in 1808 to keep up an army of more than of sovereign states. 40,000 men,1 and Russia and Turkey were compelled by the Treaty of Paris of 1856 not to build "militarymaritime arsenals" on the coast of the Black Sea, and not to maintain ships of war thereon.2 Such stipulations as these are not uncommon in the history of international transactions. They are frequently imposed on a defeated belligerent as part of the price of peace. The powers subjected to them constantly evade them, and always take the first opportunity of throwing them off. Prussia foiled Napoleon's design of keeping her powerless as a military state by passing the pick of her able-bodied young men through her small army and keeping them trained in a reserve force; and Russia took advantage of the Franco-Prussian war of 1870 to obtain by the Convention of London of 1871 a formal release from her engagements as to the Black Sea.3 Such limited and temporary restraints upon the freedom of action of a state are not held to derogate from its independence. They are passing incidents in its career, not permanent legal conditions of its existence. And the same thing may be said of the authority assumed by the Great Powers of Europe in the Old World and the United States on the American continent. There

1 Fyffe, Modern Europe, I., 382.

2 Holland, European Concert in the Eastern Question, p. 247. Ibid. p. 273.

can be no doubt that the Great Powers have, on several occasions, acted in the name and on behalf of all Europe,1 and that the smaller states have willingly or unwillingly accepted the arrangements made by them. In America there seems an increasing tendency to accord to the United States a position of primacy. But it would be mere pedantry to assert that occasional deference to the will of one or the other of these authorities deprived a state of its independent position under the law of nations.

§ 74.

teristics.

The right of independence conferred by International Law upon each fully sovereign member of the family of nations involves, as we have seen, complete liberty on Intervention - its the part of every state to manage its affairs essential characaccording to its own wishes. It may change its form of government, alter its constitution, form its alliances, and enter upon its wars according to its own views of what is just and expedient. But sometimes it happens that another state, or a group of states, interferes with its proceedings, and when it is engaged in internal turmoil or external conflict endeavors to compel it to do something which, if left to itself, it would not do, or refrain from doing something which, if left to itself, it would do. Interference of this kind is called intervention. History teems with instances of it. It has been undertaken on various pretexts, and justified by the most diverse reasonings. In every case of it the burden of proving justification rests upon intervening power; for it is in its very nature an infringement of the independence of the state subjected to it, and therefore a violation of an acknowledged principle of International Law. Let us first distinguish intervention from other forms of interference which might possibly be confounded with it; and, having done this, we shall then be in 1 See §§ 128, 129.

the

a position to discuss whether it is ever justifiable, and, if so, under what circumstances.

The essence of intervention is force, or the threat of force, in case the dictates of the intervening power are disregarded. It is, therefore, clearly differentiated from mere advice tendered by a friendly state without any idea of compulsion, from mediation entered upon by a third power at the request of the parties to the dispute but without any promise on their part to accept the terms proposed or any intention on its part to force them to do so, and from arbitration, which takes place when the contestants agree to refer the dispute to an independent tribunal and consent beforehand to abide by its award, though it possesses no power to compel obedience to its decisions. There can be no intervention without, on the one hand, the presence of force, naked or veiled, and, on the other hand, the absence of consent on the part of the combatants. There have been instances where one party to the dispute has asked for the intervention of a third power; but if both parties agree in such a request the interference ceases to be intervention and becomes mediation. Should the mediating state find the parties unwilling to accept its proposals and decide to compel them by force of arms, its action would then lose the character of peaceful mediation and assume that of warlike intervention.

General principles with regard to intervention.

§ 75.

There are few questions in the whole range of International Law more difficult than those connected with the legality of intervention, and few which have been treated in a more unsatisfactory manner by the bulk of the writers upon the subject. Some have confined themselves to general propositions; while others have devoted much time and labor to an examination of one or two specific instances with regard to which they happened to hold strong opinions. But it