^ ,5,MEIN Ir^ 1 ^33r 1 u~» CO «_3 1* ^ =o CO .^ 3 C3 i^ '^Xil]D[ ill ^ ^H i "^J^ims. §^"1 ^ c-> =:^ c-> <=^i Ji_/t ' I ov < J \J^I \IIMI J I 5 c , t-l_ < '■^— ' LJ« C «. 7 -< c_; «-u i-*_i c 3 —^ -< i>n 2 "^S / ^ C-T) rir -i_* >■ -if f^ 1 "-" 1 ' — ,.# Y< .^.\T.TIP5apVA), ii ^ f O ESPONSE OF HONORABLE WILUAM W. MORROW. UNITED STATES CIRCUIT JUDGE, TO THE SENTIMENT. "LAW IN RELATION TO DIPLOMACY" PROPOSED BY MR. WALTER RISLEY HEARN, BRITISH CONSUL GENERAL. PRESIDING AT THE BANQUET GIVEN IN HONOR OF THE RIGHT HONORABLE JAMES BRYCE. BRITISH AMBASSADOR TO THE UNITED STATES AT THE FAIRMONT HOTEL, SAN FRANCISCO, CALIF., ON THE EVENING OF MARCH 27TH, 1909. • • • • • « • * t • • V • 3 ^y5^p ^/^ ^UV MR. CHAIRMAN: It is a great pleasure to me to have the opportunity of participating in this tribute of respect to our distinguished guest'. We extend to him a cordial welcome, not merely because he represents the Sovereign of a great nation, but because of his own personality; his large experience in public affairs; his intimate acquaintance with our American form of government; his good judgment on political questions; and, above all, his generous valuation of our opportunities and corresponding potential worth. "We know he is interested in the problems we are trying to solve here in California, and that he appreciates the difficulties we have to encounter. He belongs to that class of few men described by Professor Hudson, the Shakespearian scholar, as men who by nature take a deep sympathetic interest in conditions wholly outside of themselves, and with such sym- pathy exercise a capable and candid judgment, and willing, I am sure in our case, to overlook our many shortcomings. The subject to which I have been asked to respond is: **Law in Relation to Diplomacy." This is a large subject, and has a wide range for discussion. It is far too wide for this ^ occasion unless I should treat it as it has been treated by some ^ very learned authors who declare that law has no relation what- ever to diplomacy; or, what is the same thing, the international affairs of nations are not regulated by law. Law, they say, "is the command of a political superior addressed to a political inferior in the state, ' ' or, as defined by Blackstone, it is a " rule of civil conduct, prescribed by the supreme power in the state, commanding what is right and prohibiting what is wrong." Now, as there is no supreme power in the family of nations — all nations being equal — it is said there can be no rule of con- duet as between nations that can properly be termed law : First, because there is no superior legislative body to enact such a law. Second, there is no supreme court of nations or international tribunal in which disputes of an international character can be U3. CO at ccz :3 determined. Third, there is no sheriff to execute the decree of the court, supposing one to have been delivered. But, notwithstanding these objections, we know that there are rules of conduct for nations as well as individuals, and, some- how, these rules of conduct are observed, and their commands enforced. How does this come about? Well, we are told that what we call international law or law of nations is international morality or ethics, or international courtesy or convention, or international comity, as distinguished from a rule of law. Austin, one of England's greatest law writers, was of the opinion that the proper name for such a rule of conduct among nations was "positive international morality." He contended that even if such a rule of conduct should become universal and enforced by all nations alike, it would still not be law, because it would not be a command given and enforced by a superior power. Under these definitions it would simply be a rule adopted as part of a moral sj'stem of the state in its rela- tion to other states, just as an individual on the first day of January may resolve to "turn over a new leaf" and agree with a friend to observe some rule of conduct as a part of his moral responsibility to the community in which he lives. But this resolution or agreement, however positive, does not, so they say, make it a law for the individual, nor any more does the ad- mitted moral duty of a nation make that duty a law governing nations. But as we would say judicially, the weight of authority is opposed to this view, or rather, I should say, there is a prac- tical view that must not be overlooked. We understand that rules of conduct grow up among nations as among individuals by force of custom and become law, as custom grew into the common law of England and this country, and that these cus- tomary rules of conduct may be expanded and added to by diplomatic action and by treaty and convention between nations, and we know that in Great Britain and in this country these rules of conduct applicable to international affairs are recog- nized, accepted, and enforced by these nations as law, and since the time of Bentham in 1789 they constitute a system which he called international law, a law which "must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly pre- sented for their determination." Now, what relation has this law to diplomacy? Manifestly a relation of the greatest importance. The peace and welfare of nations depend upon it, just as the peace and welfare of a community depend upon the law governing the community. The commercial and financial affairs of the world are becoming more and more intimate and more and more interdependent. Let me illustrate my meaning by referring to a very interesting case in this state. In the year 1888 a young man by the name of McDonnell was arrested in San Francisco for having in his possession a counterfeit plate or die from which could be printed counterfeit five-pound Bank of England notes. No such notes were, however, found in McDonnell's possession, and there was no evidence that any counterfeit notes had ever been printed from the plate, and none were found in circulation in this city. McDonnell was indicted, tried and convicted under the Penal Code of this state, which provides, among other things, for the punishment of a person "ha\ang in his possession any die or plate made use of in counterfeiting bank notes or bills." It was contended on behalf of the defendant that this statute was only intended to protect our own banks from the counter- feiting of their notes or bills, and not the paper of foreign banks. This defense was not without support. The case was appealed to the Supreme Court of the state, then as now pre- sided over by that eminent jurist, Chief Justice Beatty, who is present here this evening. In the Supreme Court it was further contended that the offense committed by McDonnell, if any, was against international law, and that under the Con- stitution of the United States, the Federal Government alone punished offenses against that law, citing the case of United States V. Arjona, 120 U. S. 479. But the Supreme Court of the state held that McDonnell's offense came also within the purview of the police power of the state under the provisions of the Penal Code. The Court said: "To say to Ihe contrary would be to declare without proper foundation that the legis- lative assembly of our state had deliberately made California an asylum for those evil-disposed persons who might desire to injure the currency of foreign nations, or to defraud our own citizens by passing off, upon, or selling to them counterfeit bills of such nations." This case is reported in 80 Cal. 285. Here was a law enforced by the state held to be broad enough to cover an offense primarily against a foreign state, notwithstanding its international character. I think this case illustrates very forci- bly our relations with other nations in the enforcement of in- ternational law under the police power of the state. These relations involve what are called private rights as well as public rights, and are based upon the principles of inter- national law that have been developed and established by a wise and far-seeing diplomacy. This is further illustrated by the character and number of international congresses, conferences and conventions that have been held in the last fifty years. Be- tween 1865 and 1895 — a period of thirty years — there were ten most important monetary and diplomatic international confer- ences v.^hich resulted, as you know, in the present gold standard — an essential element in the universal solvency of credit. Diplomacy also has brought about a number of inter- national postal conferences, and, as a result, the present uni- versal postal union — a mai-vel of simplicity and economy in the social and business affairs of the world. The international con- ferences relating to telegraphic correspondence have also re- sulted in a permanent international bureau at Berne in Switzer- land; and in respect to the most recent and remarkable of all inventionsi — wireless telegraphy — there have been two confer- ences, one in 1903 and one in 1906. At the last conference an international bureau was established and provision made that disputes should be submitted to arbitration. Then there are the international peace conferences at the Hague — the first in 1899, and the second in 1907. These related to the affairs of nations. At the last of these conferences an international prize court was established to protect the rights of neutrals in the time of war, and a foundation laid for a great court of international arbitration to be realized, it is believed, at the third international conference to be held at the Hague in 1915. From other conferences at Geneva and the Hague has come the International Ked Cross for the relief of the sick and wounded in the time of war and to mitigate the sufferings caused by pestilence, famine, fire and flood in the time of peace. Then there are the commercial relations arising between the nations respecting navigation and customs duties, the latter of which appear on our statute books as discriminating and countervailing duties, levied upon imports, and which have for their ultimate purpose the establishment of reciprocal relations among the commercial nations with respect to exports and im- ports. But this reference to congresses, conventions, and confer- ences and their results need not be extended, altho there have been many hundreds in the last fifty years. Those referred to indicate the efficient work of diplomacy during that period, and more particularly during the last twenty-five years. They have enormously promoted the extension of international law to both public and private affairs, and they have all moved in the direction of a unity of nations and the peace of the world. We accordingly place to the credit of diplomacy and sound statesmanship these splendid achievements for international law in opening up the highways and byways of the world to naviga- tion, commerce, travel, education, labor, and civilization, and we realize more than ever that "peace hath her victories no less renowned than war." ^2>7^fS ANGET ^ -a. mxm-^^ ^ojiivDjo'f^ <«^3Nvs(n^ "^/saBAiNnavw^ >FCAUFO«|j>^ ^OFCAtlF0% P3 \EIINIVER% ^lOSANGElfj> \EUNIVER5-//, ^lOSANCElfj> o o n30NVS01^ ELIBRARYQ^ "^aBAINn-iWV ^ILIBRARYQ^ I Llf? i 1^5 CD A^clOSANCElfjv ^^Aavaani:^ ^f^iaaNV-soi^ "^a^AiNiiJWV ^UIBRARYQr -i^^lUBRARYQr '^/5a3AlNn3WV^ ^' ^^^-IIBRARY FCALIFO% .^OFCALIF0%, -J) If b-> ,^WEUNIVER5-//, v5,lOSANCElfj> o Aavaaiii'^ ^^^AavaaiH^ ^Tiig^Nvsoi^ "^aaAiNnawv ^OFCAIIFO^ '"^omimw \EUNIVER5-//, o ^lOSANCElfj> ^/Sa3AINn-3WV ^IIIBRARYQ^ ^^HIBRARYQ^ ^odnvDjo"^ ^ o %a3AINn3WV LlIBRARYQr ^lllBRARYQc ^OFCA11FO% ^OFCAIIFO% ^- ce. ■< \WEUNIVER^/A '/- ^vWSANGElfj;^ ^WE UNIVERJ