may be jurally brought into conformity with fact, if need be, by means of war. If a progressive and a retrogressive State exist side by side, that the former will absorb the latter, in point of fact, is as inevitable as that a sponge will drink up water. And law, as we know, must follow fact. But law must not precede or propel fact. It must wait on it, not with patience alone, but, in such a case as we have imagined, with reluctance. It is the duty of the

progressive State, in so far as may be, to hinder the retrogression of its neighbour; and it is only when the inevitable fact has declared itself in such a form that its jural recognition becomes a necessity imposed by the interests of freedom on the whole, that it may be jurally enforced by war. A. must gain more freedom than B. loses before A. can jurally seek to extend the sphere of its activity at B.'s expense. There must be an increase of freedom on the whole, before the development of subjective freedom can become a jural object of war. And this is a conclusion at which scarcely any circumstances will justify the individual State in arriving without international concert. The tendency to exaggerate our rights is at all times so much greater than the tendency to exaggerate our duties, that, where the vindication of our rights seems to us to justify aggressive war, it is specially important that we should control our conceptions of them by regarding them in the light in which they present themselves to others. If aggression does not impose itself on the national conscience in the character of an international duty, we may feel pretty sure that, to the international conscience, it will fall short of the character of a national right.

CHAPTER VIII.

WAR IN BEHALF OF OBJECTIVE FREEDOM.

To any one who possesses the most elementary acquaintance with scientific jurisprudence it will be obvious that, on the principle which I have so often stated and illustrated, of rights and duties being reciprocal and coextensive, every word that I have said on the rights of war from the subjective point of view admits of being repeated from the objective point of view. The freedom of ethical activity which the recognised State, under the sanction of necessity, is jurally entitled to vindicate for itself by war, it is bound, under the same sanction, to vindicate for every other State which it recognises. And the duty is subject to the same limitations as the right. If it be freedom alone which the State can jurally vindicate for itself by war, it is its neighbour's freedom alone which it is bound thus to vindicate. It is not to give him power, or virtue, or knowledge; it is only to liberate him from such external restraints as may have been imposed on his own efforts to become powerful, or virtuous, or wise. The doctrine of intervention thus rests on precisely the same ethical and jural principles as the doctrine of self-defence, for the simple reason that both doctrines alike result from the doctrine of recognition. But the study of scientific juris

prudence has not yet reached the stage at which the acceptance of these obvious considerations can be taken for granted; and, for this reason, a slight criticism of what I believe to be the popular doctrine of intervention may with advantage be here introduced.

When I speak of popular opinions, I do not refer to those thoughtless and impulsive utterances by which men indicate the passing moods resulting from the pressure of immediate interests or present difficulties. On a former occasion,1 when I treated incidentally of this subject, I quoted an expression of opinion to which I shall venture to recur, because it possesses exceptional importance from the eminence of the writer, the clearness with which it is stated, and the unanimity with which it was accepted at the time, both in Parliament and by the press.

In the letters which he published originally in the Times, under the title of "Historicus," and which afterwards appeared in a separate form with his name, Sir William Vernon Harcourt said: "In passing from the doctrine of recognition to that of intervention, we must leave the firm and beaten path which law has defined and practice consolidated, to explore the fluctuating and trackless depths of policy. In such a case the conscience of those who wield the might becomes the only rule of right. I do not disparage intervention. It is a high and summary procedure which may sometimes snatch a remedy beyond the reach of law. Nevertheless, it must be admitted that in the case of intervention, as in that of revolution, its essence is its illegality, and its justification its

1 Institutes of Law, p. 285.

success (p. 41). Elsewhere (p. 14) he says: "It [intervention] is above and beyond the domain of law, and when wisely and equitably handled by those who have the power to give effect to it, may be the highest policy of justice and humanity." Now I demur to doctrines like these, and I regard them as not only speculatively erroneous, but practically dangerous. They degrade jurisprudence, by supposing it to depend on lower principles than those which govern politics; and they throw politics loose, by assuming that they rest on no principle at all, or, at any rate, that they are entitled to set the stricter principles which govern jurisprudence at defiance. Their source is very obvious to me, and will, I daresay, when you peruse the volume, which, from its historical merits, I very sincerely recommend to you, be equally obvious to you. It is what indeed constitutes the fundamental defect in this very able performance-viz., the haziness of the writer as to the relation between ethics and jurisprudence. Being more of a historian than a philosopher, he has permitted himself to be led into the false distinction between perfect and imperfect obligations, against which I have warned you so often, and, as a necessary consequence, into the belief that the various branches of the science of life rest upon principles fundamentally different. It is surprising what a rank crop of practical blunders may grow from the root of one single speculative error. Historicus accepts this doctrine as a canon of the science of jurisprudence, apparently quite unconscious of the fact that its soundness ever had been, or could be questioned, and once and again refers to a passage in Rutherfurth's Institutes, in which it is stated in its baldest

and shallowest form. What we found to be at most a distinction of degree, affording very little if any guidance in determining the limits of positive law, even practically, he believes to be a distinction of kind, which permanently and necessarily marks off the province of jurisprudence from that of ethics scientifically.

The

Perfect obligations according to him are the objects of jurisprudence and of law, and imperfect obligations are the objects of ethics, equity, and politics; and intervention, having in general the fulfilment of imperfect obligations in view, falls within the province of ethics, and as a necessary consequence without the province of jurisprudence! It is a political question, he tells us, to be solved by ethical principles. To this confident conclusion an exception is made in the case of intervention undertaken in self-defence, which is thus again cut loose from ethics and handed back to jurisprudence. duty of defending our country is a perfect obligation with which jurisprudence may deal, whereas the duty of aiding in the defence of other countries-like charity-is an imperfect obligation, which raises questions of expediency or generosity only. Subjective obligations-our duties to ourselves-are perfect; objective obligations-our duties to others—are imperfect. It is just the error, over again, which last century brought down the harsh but not undeserved censure of selfishness upon a whole school of speculators, and gave rise to the equally baseless reaction which I have elsewhere explained.2 Now without recurring to former discussions, it is sufficient to remark that, as the liberties of each involve the liberties of 1 Institutes of Law, p. 281 et seq. 2 Ibid., pp. 207-209.