its encroachments as fast and as far as the apathy or want of firmness of other Governments would allow it to go, but always to stop and retire when it was met with decided resistance, and then to wait for the next favorable opportunity to make another spring on its intended victim. In furtherance of this policy, the Russian Government has always had two strings to its bow-moderate language and distinterested professions at Petersburg and at London; active aggression by its agents on the scene of operations. If the aggressions succeed locally, the Petersburg Government adopts them as a 'fait accompli' which it did not intend, but cannot, in honor, recede from. If the local agents fail, they are disavowed and recalled, and the language previously held is appealed to as a proof that the agents have overstepped their instructions. This was exemplified in the Treaty of Unkiar-Skelessi, and in the exploits of Simonivitch and Vikovitch in Persia. Orloff succeeded in extorting the Treaty of Unkiar-Skelessi from the Turks, and it was represented as a sudden thought, suggested by the circumstances of the time and place, and not the result of any previous instructions; but having been done, it could not be undone. On the other hand, Simonivitch and Vikovitch failed in getting possession of Herat, in consequence of our vigorous measures of resistance; and as they failed, and when they had failed, they were disavowed and recalled, and the language previously held at Petersburg was appealed to as a proof of the sincerity of the disavowal, although no human being with two ideas in his head could for a moment doubt that they had acted under specific instructions." (Ashley: Life of Lord Palmerston, 1876, vol. II, p. 25-26.)

In this polite age, conquest is usually effected under the guise of an indemnity for a war proclaimed to have been undertaken in defense of international law rights.

In some instances the cession of territory is exacted as security against the recurrence of the offenses alleged to have justified recourse to arms.

It is not necessary to enter into any further discussion of conquest as a justifiable purpose of war, but the question as to the legality of conquest has been much confused because of the failure to perceive the distinction between the illegality of conquest and the legality of the consequences which often result directly from a conquest. It is of primary importance to international society that every territory should have a responsible master able to police it for the maintenance of peace and for the fulfilment of international law. It is not yet practicable to hold the title to important territory in abeyance because it has been illegally acquired." For the same reason that a certain

45The illegality of conquest permits any and all states to intervene with force in as far as is necessary to counteract it. This is no interference, but a true example of the vindication of the law such as we discussed above under § 7. (See Westlake, vol. I, p. 317.)

But if the circumstances are such that none of the powers avails itself of the presumption justifying counterintervention to defend the state which is attacked, practical considerations require that the results of the conflict be accepted as a fact and the right of counter-intervention, not having been exercised at the time, must be considered to have lapsed. Such a rule shocks our sense of justice, but is necessary to the preservation of the society of states, without which all justice would disappear. When the nations in their wisdom shall have established a more perfect union, it may be possible to prevent all aggression and compel the despoiler to disgorge. Under present conditions, the security of international society would be seriously jeopardized and its resources uselessly dissipated by any attempt at a delayed rectification of wrongs which the nations had not the will or the power to prevent at the time of their commission.

This is the reason for the adoption of the principle of uti possidetis when wars are terminated without a treaty of peace. (Cf. Phillipson: Termination of War, p. 7; cf. Westlake, vol. I, p. 65.)

period of adverse possession gives title to land in our common law, any territory acquired by conquest is presumed legally to belong to the conqueror as soon as forcible opposition to the conquest ceases and the other states refrain from publicly impugning the title.**

There is evidently a great field for the further gradual restriction of the more injurious forms of conquest. This progress must be based upon a clearer definition and understanding of the nature and function of the derivative forms of conquest. We may expect the powers gradually to become nicer in regard to the recognition of title resting merely upon firm possession after conquest." In the course of time we may also expect that conquest will be defined more carefully and rigidly, so as to place under the ban certain disguised and more refined methods now used to obtain by force what belongs to another.

19. TREATY RIGHTS

It is often erroneously stated that a right of intervention arises from a treaty. This is a misunderstand

46 Cf. Hall, 4 ed., p. 588, § 204. It is the custom of many writers on international law to class those cases where the acquisition of territory has been confirmed by treaty as ordinary cessions of territory, without distinction as to whether they are based upon conquest or not. Perhaps a sense of international decency has exercised some influence in this matter, since the territorial growth of all the great states is marked by acts of conquest, even though the decent clothing of a treaty has been thrown about them. A treaty has generally terminated the violent opposition to a conquest, but it cannot transform what was really a conquest into an instance of voluntary cession. The treaty does, however, evidence the fact of the firm possession.

47 It is interesting to examine Secretary of State Blaine's plan proposed before the International American Conference (1889-90) for declaring conquest in America illegal. (See Moore: Digest, Vol. I, p. 292-3.)

ing. Treaties do not create rights, they record them.11a The procedure of international law allows each state a very wide discretion in judging how far the circumstances will permit it to go in the fulfilment of its obligations to enforce international law, and this uncertainty reacts on other states, who are deeply concerned in knowing how the state will interpret its obligations and what policies it will pursue. To obtain this assurance, states enter into agreements recorded in treaties that they will or will not act in a particular manner.* Evidently such an agreement must look to the performance of acts which are in themselves legal under international law. Otherwise to fulfil the treaty would be to violate international law, and this no nation may justly promise or require. Treaties which record an agreement to interfere in the internal affairs of the signatory or of other sovereign states are without any standing in international law, and cannot be made to justify the interference which they contemplate. No state can retain its independent status if it agrees to transfer to another the liberty to interfere for the preservation of a particular form of government.

Such

47aTreaties are unable to create anything, they simply show what the powers consider and recognize as the law based on custom." (Translated from J. de Louter: Le droit international public positif, 1920, Vol. I, p. 54.)

"A guarantee secures a right, but never gives it originally its force." (Translated from G. Quabbe: Die Völkerrechtliche Garantie, Breslau, 1911, p. 13; cf. K. G. Idman: Le Traité de grantie en droit international, Helsingfors, 1913, p. 81-2.)

48 We may give as an example the agreement of Louis XIV not to give any further asylum to the Stuart Pretenders (Sir George Cornewall Lewis: On Foreign Jurisdiction and the Extradition of Criminals, p. 68.)

49 Mountague Bernard, discussing the alleged right to intervene "when a right to interfere is secured by contract, as it may be when the intervening state has guaranteed the maintenance of a particular dynasty or of particular institutions,

an agreement would be equivalent to a signing away of international sovereignty, and would, if duly entered or by virtue of a protectorate or a federal pact" (Bernard: Non-Intervention, 1860, p. 11), considered that this exception to the general rule of non-intervention [non-interference] "may be disposed of in a few words," which he proceeds to supply: "A guarantee of a throne to a family, or of a particular form of government to a people,-such a guarantee, for instance, as that of the Protestant Succession in England, of the power of the Stadtholders in Holland, of the Braganza dynasty in Portugal, of monarchical institutions in Greece,does not, unless by express words or clear implication, extend to internal troubles; and, even when it does, gives to the state undertaking it no right to interfere, unless called upon to do so. Of a general agreement creating such a right whilst the state which yields it remains nominally independent, I do not hesitate to say that it is one into which no government is authorized to enter. No government is authorized to degrade by compact the country it rules into a condition of real vassalage, whilst retaining the name and responsibilities of independence. 'It is impossible to imagine,' wrote Lord Aberdeen in 1828 to the Brazilian Envoy, who asked assistance against Don Miguel on the strength of our ancient treaties with Portugal,-'it is impossible to imagine that any independent state could ever intend thus to commit the control and direction of its internal affairs to the hands of another power.' The separate and secret article annexed to the Treaty of the 12th of June, 1815, between the Emperor of Austria and the King of the Two Sicilies, whereby the latter promised that he would admit, in re-establishing the government of his kingdom, no change incompatible either with old monarchical institutions or with the principles adopted in the Austro-Italian provinces, was defended in 1821 by Lord Liverpool as 'in perfect consonance with the spirit of ancient treaties, founded on the clearest principles of international law, and which had formed part of it from the beginning of time.' I venture to affirm, on the contrary, that it was a vicious engagement, out of which no rights could arise. The question is less simple, and the principle more feebly applies (if it applies at all), where, as in the case already mentioned of a 'protected' state, or in that of a member of a federal commonwealth like the German, there is a partial loss or surrender of independence. The Austrian intervention in Hesse Cassel in 1850 derived some color, though no justification, from the fact that, for the sake of