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principles with reference to which there is an extraordinary confusion of thought and of statement in the books. The first principle may be described as equal protection of the law or as equality before the law. Nations are equal before the law when all are equally protected in the enjoyment of their rights and equally compelled to fulfill their obligations. Equality before the law is not inconsistent with grouping nations into classes, and attributing to the members of each class a status which is the measure of their capacity for rights. Neither is it inconsistent with inequalities of representation, voting power, and contribution in an international concert. The second principle is usually described as equality of rights and obligations, or more often simply as an equality of rights. The description comes down to us from theories of natural law and natural right. What is really meant is 'an equality of capacity for rights. In this sense equality is the negation of status. If applied without qualification to the organization of an international concert it would require equal representation, contribution, voting power, etc. Equality before the law is absolutely essential to a stable society of nations. If it is denied, the alternatives are universal empire or universal anarchy. Equality of capacity for rights, on the other hand, is not essential to the rule of law. Strictly speaking, it has never been anything more than an ideal in any system of law. Among nations, where there is such an utter lack of homogeneity in the physical bases for separate national existence, there are important limitations on its utility even as an ideal.

Equality among nations is frequently explained and justified by drawing an analogy with the situation of human beings under municipal law. Perhaps there is a lesson in national experience. It is generally assumed that equality of legal capacity among persons subject to law is the ideal toward which a system of private law ought to develop; but it has never been regarded as a necessary consequence that the same principle should be taken for an ideal in perfecting national organization, much less that it should be given practical application in the form of equal participation in government. No civilized government has ever tried to combine universal suffrage, the folk-moot, and the liberum veto. It may be suggested parenthetically that the organization of human beings on such a basis would be less unreal and would give greater promise of success than the organization of nations on the same principle. The problem of supernational organization ought never to have been confused and complicated by the "equality of nations." Even granting that equality of capacity for rights is sound as a legal principle, its

proper application is limited to rules of conduct and to the acquiring of rights and the assuming of obligations under those rules. The principle is inapplicable from its very nature to rules of organization. Insistence upon perfect equality in the constitution of a union, tribunal, or concert of nations is simply another way of denying the possibility of supernational government.

It is significant that almost every writer who has seen the possibility\ of rudimentary supernational institutions has doubted or denied the dogma of equality. It is more significant that wherever anything of the nature of a rudimentary supernational institution has made its appearance in the actualities of international relations the principle. of equality has been compromised. The evolution of primitive supernational government is of great importance because it undoubtedly furnishes our safest guide in promoting the further development of a concert or league of nations. It suggests facts which may be relied upon to support a concert that is constructed on principles grounded in experience, as well as pitfalls that are certain to be encountered if the lessons of experience are disregarded.

At least as early as the nineteenth century, nations began to emerge from the state of nature and to lay crude foundations for organization. The concerted action of the great powers, launched during the Napoleonic wars, became a very primitive and unstable supernational legislature, executive, and court of appeal combined. Throughout the various vicissitudes of its development this concert has solved the problem of equality by excluding the secondary powers from its conferences. Admitted only when their own affairs were in question, in a consultative capacity, to present evidence and withdraw, or not at all, the nations of the second rank have never enjoyed equality with the great powers in the government of Europe. The books generally explain this circumstance as being un fait politique as distinguished from un fait juridique.

There has appeared a significant tendency to qualify the perfect "equality of nations" in the development of supernational administra-/ tive unions. In several of the most important unions equality has been compromised by admitting representatives of colonies, thus according to the colonial nations several times as much representation as that accorded to others. The principle of majority decision in voting has received some recognition. In several cases voting power has been divided among the nations represented in the same proportion in which they share in the financial support of the union, thus recognizing a

thoroughly sound principle, namely, that equality of influence implies equality of responsibility. Two attempts were made at the beginning of the twentieth century to constitute true supernational courts, one the so-called international court of prize for which provision was made by the second Hague Peace Conference, and the other the court of arbitral justice, wrecked at the same conference on the question of the court's composition. It was found impossible in each instance to constitute any kind of a permanent court on the basis of equality. The principle of equal representation for the eight great powers and rotation for the lesser powers was adopted for the prize court and widely advocated for the court of arbitral justice. The impossibility of admitting the "equality of nations" in constituting a court of arbitral justice was admitted in all responsible quarters, and was taken by the most conspicuous spokesman of the small states as an excellent reason for not constituting the court at all.

If the "equality of nations" is inapplicable on principle and precedent to the organization of supernational institutions, upon what other basis or bases may they be constituted? It is submitted that the fundamental basis for such a league should be the representation of population. 4 The purpose of all government, national or supernational, is to promote the mutual welfare of human beings. In so far as it can be done consistently with the creation of practical agencies through which such a league must function, and with due regard to certain limitations on population as a basis for representation to be mentioned presently, the future concert of nations should be made as representative as possible of the human beings who inhabit the earth. Organization on this basis would be relatively simple if all people were equally civilized, but unfortunately they are not. The quantitative principle of population must be supplemented by certain qualitative tests designed to measure the degree of civilization attained by the people of each nation. This is a difficult thing to measure. It can probably be done most satisfactorily by taking account of wealth and of force, not merely potential in either case, but wealth and force which could be mobilized within a limited period if necessary.

The practicability of population and civilization as bases for the organization of a league is indicated by the fact that the concerted action of the great powers has been based in a crude way on just these factors. The defects in a concert that is restricted to the great powers can be avoided and lesser powers induced to participate on a proportional basis if the responsibilities of the concert are large, and if participation

is apportioned in the same way as responsibilities. If sharing in the concert's decisions can be made to carry with it large responsibilities, the capacity to assume these responsibilities may be made an adequate measure of the combined elements of population and civilization. Such a measure ought eventually to become almost automatic in its operation, and its application to particular nations ought to become a matter of voluntary decision on the part of each. Too much emphasis cannot be placed upon the importance of having large responsibilities to apportion. Otherwise nations will not be willing to forego their claim to equal representation and voting strength, it will be impossible to develop any loyalty to the supernational authority, and its usefulness will probably be short-lived. The matter is one of great difficulty, but the present opportunity is extraordinarily favorable. The rehabilitation of Belgium, Serbia, and Poland, the restoration of devastated areas, police of the seas, police of the Balkans, administration of contested backward areas such as Morocco, China, Turkey, and Albania, administration of important trade routes such as the straits at Constantinople and the Bagdad Railway, the assumption of war debts-all suggest possibilities. To summarize: (1) representation in a league of nations should bear some approximate relation to population; (2) more civilized peoples should have proportionately greater representation; (3) capacity to assume responsibilities in support of and as the representative of supernational authority is a practicable measure of population and civilization. Whatever the basis for the future league may be, the "equality of nations" will become an obsolete principle as soon as the league secures general recognition. A supernational authority, whatever it may be called, will destroy the whole foundation for the notion of equality. International society will have ceased to be a state of nature; self-help will no longer be the usual remedy; separate nations will have yielded their supremacy; the law of nations will have become supra instead of inter; instead of being an end in itself the nation will have become a part of that larger organization whose function it is to promote the well-being of humanity. It is reasonable to hope that nations can be induced to accept a new order founded on these principles if it can be made clear that such an order offers compensations for abandoning the old anarchy, provides means for securing that equality before the law which has ever been an uncertain possession among nations, and apportions influence in proportion to capacity and willingness to assume responsibilities.

E. D. DICKINSON.

BOOK REVIEWS

EDITED BY W. B. MUNRO

Harvard University

Science of Legal Method: Select Essays by Various Authors. Translations by Ernest Bruncken and Layton B. Register. Introductions by Henry N. Sheldon and John W. Salmond. Editorial prefaces by John H. Wigmore and Albert Kocourek. Modern Legal Philosophy Series, Vol. IX. (Boston: Boston Book Company. 1917. Pp. lxxxvi, 593.)

"Do not talk to us of the meaning of the Statute;" said Hengham to Malmesthorpe at a hearing in the Michaelmas term of the thirty-third year of the reign of Edward the First. "We understand the Statute. better than you, for we made it."

The theory of the separation of the executive, legislative and judicial powers has so firm a hold upon Anglo-American methods of legal thinking that Hengham's easy method of arriving at the intention of the legislator seems to belong to a period that has gone forever. Mr. Justice Holmes may invoke this principle to show that the court is justified in finding that a mandate, which, issued within the personal recollection of its members, ordered the lower court to do just what that court actually did; but as a means of construing the acts of the legislature, we feel that it is as obsolete as the real actions. The belated survivor of this intimate union between the judicial and legislative departments perished three-fourths of a century ago when a member of the New York senate, acting as judge of the court of last resort, relied upon his personal knowledge of what took place in the legislature to aid him in determining whether a statute which created a joint stock association was intended to create a body corporate or not.

But progress in law, as in everything else, is likely to be in a series of ascending spirals rather than in a straight line; and as we read this volume, we find that modern juristic thought is ready to deny the wisdom or even the possibility of a separation of legislative and judicial powers, and is ready to claim that the Plantagenet method of constru

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