The prohibition or restriction, upon humanitarian grounds, of the entry of goods, is alluded to by Stapleton, who writing in 1866 complains of the action of the British Parliament:

"By the Act slave-grown sugar was admitted into English markets on equal terms with sugar produced by free labor.

"The effect of this has been, as predicted at the time, that most of our West Indian colonies have been ruined: and, as was strongly pressed by the late Sir Robert Peel as a certain result, Cuba and other slavetrading States have carried on the slave trade with previously unexampled vigor, and flourished under its operation." (A. G. Stapleton: Intervention, 1866, p. 265-6.)

In all these instances in which the state has made use of its authority to exclude or to regulate foreign commerce for the purpose of enforcing regulations of a humanitarian nature, there is evidently danger of a serious conflict between the two States.

On the one hand the local authority has a right to insist that the rights of aliens and foreign commerce shall not be unreasonably used within its jurisdiction to thwart or prevent the enforcement of all reasonable laws.

But on the other hand the local authorities should not impose unreasonable conditions upon aliens or shipping temporarily within its jurisdiction.

Where it is merely a question of preventing the advent of foreigners from interfering with the due enforcement of the local law, there is usually little difficulty in reaching some reasonable interpretation or adjustment. But when the object of the territorial sovereign is to make use of transit or temporary sojourn as a leverage to compel foreigners and foreign shipping to modify their own regulations, the act ceases to

be one of self-defense and sovereignty and becomes virtually either an act of intervention or of interfer

ence.

Under ordinary circumstances such an act would be an interference which other independent states would not tolerate and it would be corrected by recourse to appropriate measures of retaliation.

When, however, the purpose is humanitarian, so that the act in question may be defended upon the ground that it is necessary for the protection of the interests of all the states and of mankind in general, the practice of states shows this to be a justification. The question is however new and the limits of the conflicting rights have not as yet been described.

$9. INTERNATIONAL POLICE REGULATION 22

The powers which control any society must ever be on the watch to protect it from danger. It is not possible to define exactly beforehand the nature of the

22 The various kinds of action which are in the nature of international police, or closely related to it may be classed as follows:

(1) Action undertaken to compel the observance of the law of nations. It is in this sense that we have used International Police as the heading of this chapter. (For the use of police in this sense see Westlake: Vol. I, p. 317.)

(2) Action undertaken to prevent the violation by a state of the law when such an occurrence seems likely, especially when the penalties imposed after the commission of the offense are inadequate to protect the interests of society. This is really an extraordinary procedure for the enforcement of the law, just as in our municipal law we have injunction to prevent the violation of the law when the court believes that the ordinary remedial processes are inadequate. Hall (International Law, 4th ed., § 95, p. 309 note) calls this "preventive interference.

(3) "International Police Regulation," which is closely related to the power of prevention and to every exercise of a police power, is the action of making and enforcing regulations

peril which may arise. In international, as in national affairs, those in authority must be allowed to exercise a wide discretion over life and property when they believe it necessary for the protection of the common safety. This exercise of discretion is called police

necessary to prevent future violations. The publication of such regulations gives to all due notice and thereby tends to reduce the inconvenience and arbitrary character of the force which it may subsequently be necessary to employ.

(4) "Police patrol" or "international police patrol" is the preventive action which one or more states take to forestall and effectively to punish violations of international law by individuals. Such, for example, are the fisheries police of the North Sea (see Paul S. Reinsch: Public International Unions: Ginn and Co., Boston, 1911, p. 62); the protection of the submarine cables (Ibid., p. 63); African Slave Trade and Liquor Traffic (Ibid., p. 64); the repression of the white slave trade (Ibid., p. 64); the South American police convention (Ibid., p. 66).

(5) Action for the purpose of restricting the exercise by a state of certain of the rights it ordinarily enjoys when such liberty is considered dangerous to the safety of all the states. This last is perhaps the most characteristic form of the exercise of police power and is the action in international relations with which we are in this section principally concerned. When necessary to the safety of all the states, the exercise of police power justifies the curtailment or even denial of any of the rights of a state and its citizens, and in theory would go even to the limit of justifying the annihilation of a community, if such extreme action could be shown to be the only means to preserve international society. The exercise of this police power is in practice very closely associated with the ordinance power above referred to as police regulation, and for this reason we employ the more usual term of International Police Regulation for our section heading instead of International Police Restriction.

In our municipal [national] law, "police" is often used to designate the minor matters which are left to lesser, i. e., "police officials." In this sense, we have "police ordinances" and "powers of police." But even in this field, we perceive the essential or underlying idea of a power which cannot be completely regulated and provided for in advance by the superior authorities.

power and justifies any curtailment of the rights which are ordinarily enjoyed by the separate states, provided the action to be taken seems reasonably necessary for the protection of the common safety. The determination of what is necessary is perforce left to the decision of those in authority. In international affairs this means that the decision must be left to those powers who exercise a paramount direction over world affairs, that is, to the great world powers. Sometimes they act in concert. Each of the world powers also has a particular region outside of Europe where it often exercises this police power as if by a tacit mandate from the other powers."

228

The aim of the political system of the nations is well expressed in Senator Fessenden's definition, intended, it is true, to apply only to the United States (Life of Fessenden, Vol. I, p. 52): "The great principle of their political system,” he said, “was the largest liberty of thought and the greatest freedom of individual action consistent with social order."

Although we define police action as a justifiable curtailment of rights, we might in almost all the instances in which it is applied consider it rather as the prevention of that abusive use of a recognized right which by reason of the abuse thereof becomes unlawful.

Westlake, denying that the right of sovereignty permits a belligerent to lay even in his own territorial waters floating mines which do not become innocuous as soon as they get loose, remarks that "...the right of a state in the waters subject to its sovereignty can certainly not rank higher than that of a private owner in the land or water which is his property," and he

228 The executive action of the great powers in concert or acting separately within a particular region or sphere of influence is more fully discussed in the following section. (§ 10).

adds, "But no principle is more firmly established in the science of law than that which says to an owner sic utere tuo ut alienum non laedas [so use thine own as not to injure another]." (International Law, Vol. II, p. 313.)

Phillimore begins his chapter on Intervention with the following observation: "In all systems of private jurisprudence, provision is made for the placing upon the abstract right of individual property such restrictions as the general safety may require. The maxim, 'expedit enim reipublicae, ne quis sua re male utatur,23 belongs to the law of all countries (Inst. I, VIII, 2). The Prætorian Interdict of the Roman, the Injunction of the English Law, give effect to this principle by preventing the mischief from being done, instead of endeavoring to remedy it when done. Some analagous right or power must exist in the system of International Jurisprudence." (Phillimore, 1 ed., Vol. I, 1854, §§ 386-7, p. 433.)

A good illustration of this preventive action was the exclusion of the Bonapartes from the throne of France. (Angeberg: Congrès de Vienne, II, p. 1183-4. Cf. Westlake: International Law, vol. I, p. 318; Stapleton: Intervention, p. 139.)

In his notes to the passage just quoted, Phillimore gives references to the "Digest" of the instances where property is subjected to restriction on account of the general good. He also gives a quotation from Ahrens (Cours de Droit naturel ou de Philosophie du Droit, Brussels, 1844, p. 296), which when translated

28 The English translation is: "And this decision is just, as the welfare of the State demands that no one should make a bad use of his own." (Institutions of Gaius and Justinian, translated by T. Lambert Means, London, 1882, p. 269.)

Cf. works of Edmund Burke, Boston, Little, Brown and Co., 1894, Vol. 5, p. 321-322, Letters on a Regicide Peace, Letter I. See also Hall: International Law, 4th ed., § 95, p. 309 note.