separate a part of itself for its own interest or safety, with that separation sovereignty ceases, the part so abandoned having the right to dispose of itself. The proposition that the right of transfer does not exist, in which practically all the supporters of the doctrine agree, appears to be based on the presence of a latent sovereignty in each group, whether artificial or natural — a latent sovereignty which asserts itself when the former sovereignty ceases through separation. It is this conception of latent sovereignty as well as that of the right of a people to resist separation, which arouses that fear of secession which is so vividly felt by the opponents of the doctrine. The supporters assert, however, that the right of secession is not an inevitable corollary, for to say that the people have the right to oppose separation or transfer is far from saying that they have the right to initiate it. Indeed on this point it might well be said that the right of successful secession is already recognized by international law, and that to introduce the requirement of a popular vote in such cases would be to cast on the party of secession the burden of proving the extent of its strength not only by force of arms but also by the ballot. It might well be that by such insistence secession would be discouraged and the State protected.2

The opponents' objection to the practical value of the plebiscite may be summarized under three heads. The first is the reluctance to allow the fate of the territory to be settled by a bare majority, swayed, in their apprehension, not by reason but by sentiment of a possibly evanescent sort. The answer is made that it is better to have the majority rule rather than the minority, and that the most important of all matters is precisely sentiment, which is the force most important to enlist for the purpose of stable order.3 The second objection is that the plebiscite presents opportunity for pressure and fraud, exemplified particularly in Savoy and Nice. The citation of the votes of Savoy and Nice against the doctrine is of no value according to Fusinato, who says that all the accusations brought, and fairly brought, against these plebiscites, especially on account of faulty execution, can not detract from the theoretical importance of the affirmation of the principle itself. The third objection to

1 Padelletti, Lieber, Bonfils, Rivier, Holtzendorff, Despagnet.

In the case of the Southern Confederacy although no referendum was taken on the question of secession, except in Texas, especially elected State conventions in the States of the far south did indeed vote for secession, before the attack on Sumter. A vote from which a whole class is excluded, however, even if that class be unen franchised slaves, cannot, by hypothesis, be considered as self-determination in the eyes of the twentieth century, whatever standing it may have had in the nineteenth. It is noteworthy that it was only after the call for federal troops, after Sumter, that Virginia and the other border slave States changed their votes from union to secession.

3 Fusinato, p. 41.

Lieber was perhaps the first writer on international law to attack the Savoy vote. His attack has been repeated by practically every writer in opposition.

"Tutte le accuse di cui fu oggetto questo plebiscito, specialmente, come diremo, per i

the plebiscites of the past is that they have merely been an unnecessary ratification of a fait accompli. As to this argument Fusinato adds that it has even here a juridical value by showing that the right was bound up with the force used, because to force was added the will of the people, and that by resort to the plebiscite all occasion for doubt, dispute or recrimination is removed and the State is given that formal juridical title which is invaluable.1 He points out that the practical objections raised are largely those always raised against universal suffrage, and that, with proper care, opportunities for fraud should be rendered negligible.

To avoid the several dangers enumerated, the opponents of the doctrine assert that the rights of the individual are sufficiently safeguarded by the doctrine of individual option. To this Fusinato answers at length that however relatively great may be the use made of option it always remains quite trivial as regards the mass of the inhabitants, for the great mass in its entirety, even after the exercise of individual option and the effective change of domicile by some, remains as it was before. Moreover, to say that the act of the man who remains inactive should be interpreted as an act of spontaneous submission and of preference is often a sad irony. How little individual option favors the liberty of the people, he continues, is shown easily by the fact that the most liberal treaties in regard to the right of option were precisely those that settled the partition of Poland.2 He might have added that the option clause in the treaties of Prague and of Frankfort were far from sufficient.

The war has rescued the principle of self-determination from its academic retirement. It comes to the fore again without the prestige of its past, for that has been forgotten with the passing of the generation of statesmen who supported it. Now, as then, it is turned to as a doctrine promising a practical solution for those difficulties which were certainly not solved successfully by the ephemeral experiments made in the Congresses of Vienna and of Berlin and in the Treaty of Frankfort. One hears no longer that it is a doctrine which does not concern international law; for it grows obvious to the world that everything which concerns sovereignty concerns international law. The question whether or not the doctrine of self-determination has standing in international law has yielded to the question of its fitness for the purposes of our generation. Thus to-day it becomes worth while to restate the reasons which have been urged heretofore, and which will now vizii della sua esecuzione, non possono evidentemente togliere nulla alla importanza teorica dell' affermazione del principio in se medesimo." Fusinato, p. 104.

1 "Il valore giuridico della pacifica manifestazione nei plebisciti, la quale segue la violenza della rivoluzione, consiste appunto in questo, che essi purificano l'opera della forza, dimostrando che con essa stava collegato il diritto, perocchè ad essa si aggiungeva l'elemento della volunta del popolo." Fusinato, p. 134.

2 Fusinato, p. 156.

inevitably be urged again in answer to its opponents. These reasons will now be summarized.

Title rests for its final sanction on public opinion. History would seem to prove that, in questions of territorial sovereignty, public opinion bases its judgment on an unexpressed major premise, namely, that no title acquired either through treaty, conquest or occupation, or based on economic, racial or historical arguments, or arguments of military necessity, is valid, no matter how many centuries it has run, unless it has behind it the consent of the majority of the inhabitants of the territory. Of this fact Ireland, Poland, Italy, Bohemia and Alsace-Lorraine are sufficient proof.

The doctrine of national self-determination was born of the chief contribution of the eighteenth century to political thought, the assertion of the right of the individual to freedom from despotic control. It is an axiom of the twentieth century that the individual's right to self-government must yield to the welfare of society as a whole. One must, therefore, ask how far the doctrine is consistent with our present philosophy. It is often asked whether or not the national aspirations of one group should outweigh the economic desires of another, if it should appear that satisfaction of those desires is for the good of society. The answer is that the main requisite of society is order, to which validity of title and territorial sovereignty is essential. If this is so, then it appears that the interest of the world and that of the group are one, and that only by basing title on the principle of national self-determination can there be a presumption of stability for the State or for the world-wide society of States.

The principle of national self-determination once accepted, there are practical reasons why the plebiscite should be resorted to in order that the will of the majority may be ascertained in a definite statistical fashion. The purpose might be thought to be served either by mere imagination or by indirect consultation through an international commission collecting evidence of the desire of the inhabitants by a survey of history, literature, economic ties and interests, statistics as to race, language and religion, and by receiving deputations and petitions. Even were it possible by these means to hear from unorganized masses and interests, it can be easily shown that the criteria of racial and geographic determination are not sufficient guides for judgment regarding national sentiment. This was particularly true in AlsaceLorraine in 1870, when many believers in determination through language and race thought that language and race required the return of the provinces to Germany;1 and it is true to-day in the case of Schleswig. It is a method subjective, not objective, too likely to be based upon inadequate generalization.

1 The Germans adduced common origin of races, similarity of language and customs, geographical configuration and historical rights to support their conquest. Fusinato, p. 1.

Further, even though the inadequate generalization may happen to reach the right result, there has been no proof that the result is right or desired. Inevitably there will be disaffection in the territory in question and in the State from which it is separated, or the State whose claim is not satisfied. The real problem is not only to ascertain the existence of a majority, but also to establish the incontrovertible fact of that majority in order to devitalize potential sources of agitation.

Again, the advantage to be acquired by the annexing State through enlisting that loyalty to the State which is the normal psychological result of participation in the processes of selection is another consideration and a strong one.1

That these advantages will accrue from an actual vote, if charges of fraud are not too serious, is shown by the Italian votes of 1860, '66 and '70, which effectually silenced the claims of Austria, the petty princes, the republicans and the Pope. It is shown by the votes of Savoy and Nice themselves, for whatever the pressure, it was obvious that it could not account for the overwhelming majority cast for cession. The result of the votes made the protests of Great Britain, Switzerland and the other Powers appear as weak as they were futile. It is significant, too, that a disaffected party has not survived in those territories or in Italy. Yet it may be asserted that in each case there were other factors which accounted for the permanence of the solution. This is undoubtedly true, but here is an instance where the cumulative force of the invariable condition of stability following the votes can not be ignored, and where, consequently, one can not fairly accuse the argument of being an example of " post hoc, ergo propter hoc."

Doubtless to be suited to the use of the twentieth century, the plebiscite must be modernized. The old methods of partisan administration would not satisfy the more sophisticated political standards of to-day. The plebiscite must be under international and obviously impartial auspices. The accumulated political experience of a century of representative government must be applied to commissions which should oversee and police the registration, and guarantee the secrecy of the ballot.

The real problems are, however, of a more general nature, and involve, among other questions, delimitation of the territory in which the vote shall be taken, electoral qualifications, and the drawing of the frontier line after the vote. It is obvious that a rigid plan to fit all cases is impossible. Special conditions necessitate special provisions. The conditions must be studied with infinite care, and the solutions must bear promise of justice to all parties, including both the majority and the minority. In cases of a mixed population and an indistinctly indicated frontier line, the international commis1 Cf. Fusinato, p.

135.

sion will be forced to follow the proposal made by La Tour d'Auvergne in the Conference of London and draw a line based on the vote, in the way that shall most nearly satisfy the obvious desires of the inhabitants of the region. Here is the proper place for the clause of option, a place first accorded it in the Treaty of Mulhausen of 1798. It is properly a measure to protect the dissatisfied minority.

The chief theoretical opposition to the doctrine comes now from the apprehension that, once admitted, small units, even so small as cities, may demand self-determination. Although this difficulty has so far been an academic one it has now become one of importance. No rule is, of course, possible. The question is one primarily of proportion, of geographic position and economic relation; in a word, it must be settled according to the specific case. No group, however small, should be without its day in court. The court should be an international commission to whose judgment the matter must be left. With the resources of customs zones and internationalization of rivers, ports and the like, the desires of the several parties in interest, even in the case of a single city, should be capable of being harmonized and the will of the majority satisfied.

The chief practical opposition to the doctrine comes at present from those who fear, and with reason, that application in various regions where the conqueror has bent every effort to denationalize the people and has resorted to restrictions on language, to deportation and to massacre, would sanction the former conquest. It is obviously necessary that such methods should fail of their object and that their results should be neutralized. To arrive at a just solution in such a case is not easy. There are, however, means of solution which suggest themselves. It might be well to let only those vote who are native-born, or who were domiciled in the region before the conquest, and even to let those children of emigrants or optants vote who will give pledge to live in the territory if the vote goes in their favor. Finally, by letting the women vote, not only would there be a more comprehensive expression of opinion but there would also be secured representation for the men who have been killed in war or have perished through deportation.

Solution of these problems is not easy, nor should one attempt it without full knowledge both of the special cases at issue and of the problems, failures and successes of the past.

THE PLEBISCITES OF THE FRENCH REVOLUTION

AVIGNON AND THE COMTAT VENAISSIN, 1791

In 1789 Avignon and the neighboring Comtat Venaissin were still a part of the patrimony of the Holy See, an alien dominion in the heart of France,