The control of Tsingtao, and the railways and mines in Shantung, gives practically economic control. Kiaochow Bay is the best port on the coast north of the Yangtze River. The railway now completed to Tsinanfu (256 miles) connects with the main line to Peking and when extended will connect with the railroad from Hankow to Peking. By another extension already agreed to, it will connect with the grand trunk line to be built under a concession granted to Belgians, which will extend from the west far up into northwest China toward Turkestan. Kiaochow Bay can thus be made by the Japanese an outlet for all the trade of North China. The railways which feed the port also tap the coal fields, not only of Shantung but also of Shansi, the largest in the world. In fact the possession and control of the harbor of Kiaochow carries with it economic control of all North China. It is as though Great Britain held New York and the railway systems extending west and northwest therefrom.

The Senate must act upon the existing conditions. The treaty has been signed by the President. China has declined to sign it and it is said that she has declared a condition of peace with Germany. Japan has signed the treaty, but has not ratified it.

The Senate may simply refuse to approve the Shantung provisions, thus preserving its own virtue immaculate and ignoring the consequences to China, or it may amend the treaty by substituting "China" for "Japan" where it appears in the Shantung sections. The treaty must then go back for consideration by the signatory Powers. If Japan acquiesces in the change, the result will be satisfactory to the United States, Great Britain and France and to China. If Japan refuses to sign the treaty as amended, she will be isolated internationally, a situation not to be lightly assumed. She will, however, be in possession of Shantung. China has not the military power necessary to evict her and will probably resort to the boycott. Bitterness, confusion and war will doubtless result. China will not be supported materially by any of the nations and will be reduced to the condition of practical vassalage. However, there is no reason to assume that Great Britain and France will continue their support of Japan if the treaty is amended and sent back for reconsideration. All they agreed to do was to support her demands at the Conference.

Their promises were kept and performed. It is very improbable that Great Britain and France will support Japan when it becomes clear that the result will be disorganization of world arrangements and war in the Far East. Japan may find it necessary to withdraw her demands, as other nations have been obliged to do occasionally. In fact it may be a good time to have militant Japan taught the lesson that she cannot always have her own way.

Or the treaty may be ratified as it was signed, in reliance on the promises which have been made by Japan with the intention of seeing that the promises are kept. The objections to this course are based on want of confidence in Japan's good faith and the fear that she will quibble over the terms and conditions and thus delay performance indefinitely. The fact is that military Japan is a replica of old military Germany. Its theories of government are the same. A divinely inspired Emperor is held to be the source of all political power. Its theories of government are the very opposite of democracy. It is this saber-rattling Japan which is so easily irritated. Its foreign policy is based on military power and a willingness to resort to force to sustain its demands. There is no blinking the fact that its sinuous diplomatic methods have brought Japan into such disrepute that the world demands guarantees for the performance of her promises. But there is another Japan, a modern Japan, in which the germs of a democratic system are developing. For the first time in her history, Japan has an anti-militaristic administration. May it be assumed that this administration will continue in power and keep its international promises in spirit as well as in letter? The purpose of this article is to state the Shantung question, not to solve it.

CHARLES BURKE ELLIOTT.

EDITORIAL COMMENT

THE "UNDERSTANDINGS" OF INTERNATIONAL LAW

The Preamble of the Covenant of the League of Nations contains an implied commentary on the law of nations that warrants consideration. It reads as follows:

The high contracting parties, in order to promote international cooperation and to achieve international peace and security by the acceptance of obligations not to resort to war, by the prescription of open, just and honorable relations between nations, by the firm establishment of the understandings of international law as the actual rule of conduct among governments, and by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organized peoples with one another, agree to this Covenant of the League of Nations.

Stated in other terms, international peace and welfare are to be obtained: (1) by agreements not to fight; (2) by higher standards of diplomacy; (3) by agreements as to the meaning of international law; and (4) by a more honorable regard for the sanctity of treaty obligations. The place of international law in this "constitution" for the world is subsidiary to other considerations. It is not to be regarded as the bedrock of peace and justice.

Furthermore, the language employed, namely: "by the firm establishment of the understandings of international law as the actual rule of conduct among nations" especially challenges attention. The law of nations is to be regarded first, as not having been clearly understood; second, as requiring to be established; and third, as being a "rule of conduct among governments".

By implication the great system of law that has been laboriously built up by judicial action and by firmly established custom and positive consent is seriously slighted in this Preamble of the Covenant of Nations. Instead of a robust and ringing assertion of the sanctity and vigor of long-established international law, we have a feeble reference to its understandings!

It has been difficult to find a definition of international law that

will command general acceptance. As long as divergence of views exists regarding its very nature, regarding the distinct class of interests to which it applies, and especially the character of its sanctions, any definition is subject to criticism. For example, the criticism of the Austinian school of jurists, which would relegate international law to the field of morality, makes its definition difficult.

Thus, if the idea suggested by the Preamble of the law of nations as a rule of conduct is to be interpreted in the moral sense, its place becomes entirely subsidiary in the great scheme for a "Covenant of the League of Nations". If, however, as is to be hoped, the intention was to imply a legal rule of conduct obligatory on courts and individuals as well as on "governments", the implied definition may be accepted without objection as in accord with the views of most international law publicists.

But the term "understandings of international law" is utterly objectionable and reprehensible. It affronts especially our AngloSaxon conceptions of a solid system of law that has grown up by custom and consent; has been judicially recognized and interpreted; and has been crystallized, not into understandings, but into definite principles which may be invoked successfully in any court of justice. The law of nations may have its decided limitations and defects like other bodies of law, but it is grievously and needlessly affronted when these principles are characterized as "understandings" that require firmer establishment. This certainly is not the conception of international law repeatedly approved and asserted by decisions of the United States Supreme Court, notably in the more recent case of The Paquette Habana (175 U. S. 677).

One is curious to know what lay behind the thought of the draftsman who penned the phrase "understandings of international law". Did he have any conception of a definite system of lawimperfect to be sure-but in the process of orderly development? Or did he conceive of international law merely as a "gentleman's agreement" on a par with "regional understandings" referred to in another part of the Covenant, and other diplomatic, political understandings? The problem is most intriguing.

It is possible that the Hague Conventions governing the conduct of war may have had something to do with this current impression of international law as a series of understandings. The failure of some of the belligerents to observe all the provisions of these conventions,

particularly the cynical contempt shown by Germany toward such understandings, led many unthinking persons to think of international law as a broken reed.

The attempt to identify the law of war with international law proper has been largely responsible, of course, for this popular scorn. The writers on this subject have not always been clear to distinguish between the true function of international law to regulate the peaceful relations of nations, and the function of war, which is the suspension-the very negation of law.

Furthermore, conventions governing the conduct of war are truly to be regarded as understandings, inasmuch as they depend entirely on the arbitrary will of commanders on the battle-field. Unlike ordinary rules of international law which may be invoked in any court of justice, the laws of war cannot be considered by any court except one imposed by the victorious belligerent. They are substantially nothing but gentlemen's agreements or understandings depending on good sense and good faith.

If Germany had won this war, one might well have despaired concerning the future of international law. The German conception of the law governing the peaceful relations of states was controlled by a blind, selfish expediency, by a Prussian interpretation of the understandings of the law of nations. It was to prevent such a catastrophe, to safeguard the sanctity of law and lift it high above. the level of mere understandings that bound the great majority of nations together against an outlaw. They refused to permit any discussion concerning the fundamental rights of nations. These were to be regarded as law and admitting of no misunderstandings!

The Anglo-Saxon idea of jurisprudence abhors this suggestion of basing law on discussion and understanding. It conceives of law as a natural growth and evolution from custom to code, with an admixture of statute law. It spurns judge-made law, except in the sense that the court merely recognizes rules of law already accepted in one form or another by the community. It believes in a great body of basic principles properly coördinated and cemented together into one rational system. Pure international law may be imperfect and not efficiently enforced, but it is entitled to infinite respect, and is not to be regarded as controversial in character, subject to discussion and liable to a variety of interpretations and understandings.

It is possible that the Preamble of the Covenant of the League of