new forces. If, in the future, as von Liszt says, every citizen of a constituent State in the Association of States is a conjoint subjecta citizen simultaneously of the State and the Confederation—who will venture to calculate the significance, in regard to the mutual approach of the races of men, of the proud words that every man will be able to repeat in all places: Civis mundi sum? [Paper submitted in French.] INTERNATIONAL LAW AND SUBJECT RACES By Sir JOHN MACDONELL, C.B., Professor of Comparative Law, University of London; Master of the Supreme Court. I PROMISED, Somewhat rashly, your Secretary to contribute to the proceedings of the Congress a paper on International Arbitration, a subject, the importance and opportuneness of which no one in these days questions. On reflection, however, it appeared to me-and I think that your Secretary admitted that while of interest for all who sympathise with the objects of the Congress, arbitration had only indirect bearings upon much of its primary work. Great though the achievements of Arbitration have already been, great though its future is likely to be, one must not be blind to its limitations. It is an instrument for settling disputes between Governments; in particular, disputes likely to give rise to difficulties between States which diplomacy fails to settle. No doubt some of these questions are at bottom racial; such, for example, are the recurring difficulties as to emigration between China and Japan on the one hand and Great Britain and her Colonies and the United States on the other hand. These difficulties take an economic form; they originate in racial antagonism and prejudice. And even when no racial element is obviously and indisputably present, the real though latent difficulty in the way of a settlement of disputes may be the repugnance or distrust arising from race prejudice and misunderstanding. International Arbitration does not touch, nor is it proposed that it should touch, many internal and domestic questions profoundly interesting to races which are not dominant. I take almost at random racial questions which happen to be of late uppermost: the condition of the Jews in Russia and Poland; the Poles under Russian rule; the Roumanians in Hungary; the Finns in Russia; the Macedonians and Armenians in Turkey; the East Indians in South Africa; the natives of the Congo State under Belgian rule. International Arbitration does not help to solve, except very remotely and indirectly, the problems which these names recall. To-day each State says, and will long continue to say, "I must be master in my own house." That position must be accepted-at all events for the time. We must look elsewhere for a solution (so far as possible) of some of the great problems due to differences and collisions of races. But-and it is the chief object of my inquiry-it may be of interest to endeavour to examine whether the ends which the originators of the Congress had in view cannot be furthered by other means than arbitration; and, in particular, by a clearer recognition of duties to subject races than now exists; by better organisation of existing agencies, and by the creation of new organisations. I am sensible of the difficulty of making useful suggestions as to questions, so many, so varied in character, and, it may be said, with so little in common. Not even a Leibnitz or a Humboldt or other great organisers of science could survey the whole of the vast field and map it out with full knowledge. My suggestions are offered only as hints which may elicit discussion and help clarify ideas. A further prefatory admission is needed. Great are the limitations of all machinery and organisations in accomplishing the chief aims in view. The walls of racial prejudice will not yield to mere organisation; the spread of knowledge, the spirit of charity, and new ideals are the only solvents. At the outset is the question: How far, if at all, is International Law applicable to the relations between subject and dominant, between civilised and uncivilised, races? According to one view, they are not in any way applicable; according to another, they are so, but only partially, and with many qualifications. I pass over as not meriting notice in this Congress the contention which is rarely nowadays made in so many words, that a high degree of civilisation carries with it a right to impose the will of the superior upon the inferior ; that as between them might is right and that the former may do exactly as they think fit in virtue of their superiority.1 Turning to statements less uncompromising, I proceed to cite those of one or two writers. The first is by Mr. John Stuart Mill: "There is a great difference (for example) between the case in which the nations concerned are of the same, or something like the same, degree of civilisation, and that in which one of the parties to the situation is of a high, and the other of very low, grade of social improvement. To suppose that the same international customs, and the same rules of international morality, can obtain between one civilised nation and another, and between civilised nations and barbarians, is a grave error, and one which no statesman can fall into, however it may be with those who, from a safe and unresponsible position, criticise statesmen. Among many reasons why the same rules cannot be applicable to 1 Trione (Gli Stati Civili Nei toro Ropporti Guiridici coi Popoli Barbari, p. 14) refers to Ize, who cites Hegel and Cousin as holding this opinion. In Ihering's Geist des römischen Rechts, vol. i., p. i., are some remarkable assertions of the right of powerful civilised nations to force their commerce upon Eastern nations. situations so different, the two following are among the most important. In the first place the rules of ordinary international morality imply reciprocity. But barbarians will not reciprocate. They cannot be depended on for observing any rules. Their minds are not capable of so great an effort, nor their wills suffi ciently under the influence of distant motives. In the next place nations which are still barbarous have not got beyond the period during which it is likely to be for their benefit that they should be conquered and held in subjection by foreigners. Independence and nationality, so essential to the due growth and development of a people further advanced in improvement, are generally impediments to them. . . . A violation of great principles of morality it may easily be; but barbarians have no rights as a nation, except a right to such treatment as may, at the earliest possible period, fit them for becoming one. The only moral laws for the relation between a civilised and a barbarous Government are the universal rules of morality between man and man" (Dissertations, iii., p. 167). I have quoted this passage as expressing the views of those-and they are many-who lay stress on the absence of reciprocity and the benefits of civilisation as justifying the application of different rules from those which are in force between civilised States. lays stress on the second of the above grounds : Bluntschli "Lorsque la contrée qui ne fait partie du territoire d'aucun état est possédée par des tribus barbares, ces dernières ne peuvent pas être expulsées par les colons des nations civilisées; on les laissera émigrer en paix et leur fournira un dédommagement équitable. L'Etat colonisateur a le droit d'étendre sa souveraineté sur le territoire occupé par des peuplades sauvages pour favoriser la civilisation et l'extension des cultures" (p. 280). Here is another way of putting the same doctrine : "C'est le droit naturel, non le droit international, qui est applicable aux rapports des nations civilisées avec les nations de l'Asie. . . . En Asie le droit international se transforme en droit naturel, lequel exige également que la parole donnée soit exécutée consciencieusement, que la vie et la propriété d'autrui soient reconnues saintes et inviolables, que les mauvais instincts et passions cèdent leur place aux impulsions justes, honnêtes et généreuses" (Martens, “La Russie et l'Angleterre dans l'Asie Centrale," Revue de Droit International, 1879, p. 241). This is the way in which the problem presents itself to some other modern writers :- "Der Unterschied in der Kultur berechtigt den Europäischen Staat nicht, im Verkehr mit einem minderkultivierten Volke, z. B., Papua, alle Regeln des Völkerrechts ausser Acht zu lassen. Es ist vielmehr davon auszugehen, dass jeder Staat die Grundrechte eines jeden andern-wenn auch von wenig gebildeten Menschen geleiteten-Staates so lange durchaus respektert, als es die Ausübung der eigenen Grundrechte irgend gestattet" (Gareis, p. 40). European States will be obliged, partly by their sense of honour, partly by their sense of their interests, to be guided by their own artificial rules in dealing with semi-civilised States when the latter have learned enough to make the demand, long before a reciprocal obedience to those rules can be reasonably expected" (Hall, 6th ed., pp. 40, 41). These statements are, for several reasons, not satisfactory; not inaccurate, they lack precision and definiteness. if In the first place, the modern practice of nations and the teaching of modern writers do not, on the whole, whatever may be done on particular occasions, accord with some of these opinions. Modern text-books treat, sometimes at great length, the relations and duties of civilised States to inferior or backward races. In point of fact there has always been some recognition of duties by civilised nations to uncivilised or semi-civilised nations with which the latter have been brought into contact: recognition generally imperfect; often compatible with gross cruelty; often serving as a cover or excuse for wrong-doing. One of the chief subjects of discussion among the earliest students of International Law (e.g., Francisco Victoria and Baldasarre de Ayala) was the relations and duties of the Spanish and Portuguese conquerors to the indigenous inhabitants. Further it is to be noted that there is not a clear line of separation between civilised and barbarous nations; they often differ from each other by small degrees; the sharp distinction drawn in the passage which I have quoted from Mill between civilised nations and barbarous, does not help one in solving the actual problems, which for the most part relate to the dealings of nations with different types of civilisations, the relative value of which in the eyes of impartial observers, if such existed, might be dubious. What is the test of superiority? There is the often suggested test of proficiency in war, according to which the Turks some centuries ago were probably supreme among all nations, the Italians, contemporaries of Michael Angelo and Leonardo da Vinci, not excepted. There is the test of wealth; a test the justice of which, if applied to individuals, would be denied. There is the test of morality, the existence of a legal moral code and conformity of conduct thereto, and a test the application of which, if possible, might lead to startling results. Nor is the distinction between the progressive and non-progressive races so clear to modern ethnologists as it was to those who knew little. The so-called stationary races are often merely those whose changes are unrecorded. As Professor Royce justly remarks, this test has never been so fairly applied by civilised nations as to give exact results. So long as there exists, what M. Tarde calls, the "irresistible orgueil primitif que porte toute tribu, si infime qu'elle soit, à se considérer supérieure à ses voisons," the application of a well-accepted test is impossible. The superiority for which writers such as Gobineau and Houstin Chamberlain claim will never be conceded; but what is clear is that the world would be the poorer if one type of civilisation were to be universal; 1 what we cannot be sure of is, that an unpromising race, if left to itself, may not be the starting-point of a development which will enrich mankind. * See the disheartening facts as to the benefits of civilisation collected by Bastian, Der Mensch in der Geschichte, iii., p. 233, &c. I am only summarising the teaching of a great majority of writers when I say that, apart from the conventions which I am about to mention, some at least of the rules of International Law are assumed by almost all writers to apply to such communities; even as to communities outside the purview of International Law, there are duties to be performed, duties which may be stated and formulated. At all events this holds good of communities with regular Governments, though with social organisations and moral ideas unlike our own. One of the most characteristic modern developments in the relations between States generally, between dominant and subject races, is the establishment of Protectorates by powerful States over the weaker, some of the latter being on a plane of civilisation equal to that of the former. Gradually are being evolved principles as to the reciprocal duties of protecting or protected States, including the treatment of the indigenous inhabitants. A few words as to the conventions to which I have referred. There exists a group of treaties by which some of the chief States of the world bind themselves to perform certain duties towards the nondominant races or parts of them. One universally recognised duty is that, chiefly in the interest of inferior or backward races, the slave trade, dependent necessarily upon supplies from such races, should be put down and should be treated as a heinous crime. I am not writing the history of the Slave Trade or the Emancipation Movement. I merely recall the pronouncement of the Allied Powers at Vienna in 1815, and at Verona in 1822, and the Quintuple Treaty of 1841. A landmark in the history of the subject is the Berlin Conference of 1884-5. It elucidated principles, it concentrated action; it was the beginning of a new policy as to the Slave Trade on land as well as sea. By Article VI. of the Berlin Act the Powers agreed to watch over the preservation of the native tribes and to care for the improvement of their conditions, of their moral and material well-being, and to help in suppressing slavery and especially the Slave Trade. Article IX. was as follows: "Conformément aux principes du droit des gens, tels qu'ils sont reconnus par les puissances signataires, traite des esclaves étant interdite, et les opérations qui, sur terre ou sur mer, fournissent des esclaves à la traite devant être également considérées comme interdites, les puissances qui exercent, ou qui exerceront, souveraineté ou une influence dans les territoires formant le bassin conventionnel du Congo, déclarent que ces territoires ne pourront servir ni de marché ni de voie de transit pour la traite des esclaves, de quelque race que ce soit. Chacune de ces puissances s'engagent à employer tous les moyers en son pouvoir pour mettre fin à ce commerce et pour punir ceux qui s'en occupent." Among the latest measures of consequence was the Brussels Anti-Slavery Act of July 20, 1890, which came into force on October 1, 1892. The Powers exercising sovereignty or a protec |