illi!!! !i ' i| I f i i 1 ill lllli iiii lililiil ij ii lliij^l i I llllll 111, Mm ii ill THE UNITED STATES AND PEACE THE UNITED STATES AND PEACE BT WILLIAM H. TAFT •. . -•;»•.•• '. NEW yore: CHARLES SCRIBNER*S SONS 1914 ^> 4^ Copyright, 1914, by Charles Sckibner's Sons Published May. 1914 FOREWORD Every President of the United States can be quoted in favor of peace. From the first great Virginian to the last all have abhorred what Thomas Jefferson called "the greatest scourge of man- kind." No President, however, has espoused the cause more unreservedly, has grasped its fundamental principles more thor- oughly or attempted to advance its prog- ress more directly than has Mr. Taft. This book is a demonstration of the fact. Mr. Taft has occupied the greatest po- litical office in the world. He has pre- sided over a confederation of nearly half a hundred sovereign States — the greatest peace society known to history and a liv- ing example to the nations of the earth of I V ] 287959 FOREWORD the way to obtain peace through political organization. Peace is the outcome of justice, justice of law, law of political or- ganization. Emanuel Kant proclaimed this as the true philosophy of peace, when in 1795 he wrote: We never can have universal peace until the world is polit- ically organized, and it will never be pos- sible to organize the world politically until the people, not the kings, rule. Peace hath her victories no less re- nowned than war. Perhaps the greatest victory yet achieved is the declaration of Mr. Taft, as President of the United States, that he was wilUng to refer all ques- tions, even those involving national honor, to arbitration. He attempted to negotiate treaties to this end with Great Britain and France. His hope was that the example thus afforded would be followed by other nations, until a general treaty could be formulated in which the peoples of the earth would agree to refer all their dis- [ vi] FOREWORD putes to a court of arbitral justice. This would be the doom of war. The attempt, though thwarted by the United States Senate, offers the nations a guiding principle which they will support with an ever-increasing favor and fervor until it is made a universal law. Mr. Taft's high statesmanship has inaugurat- ed a movement that will not end until, as Victor Hugo prophesied, "the only battle-field will be the market opening to commerce and the mind opening to new ideas." The present volume is the outcome of a suggestion made to Mr. Taft by the New York Peace Society, which has started so many good movements to further inter- national progress and comity. Its four chapters were deUvered last winter as lec- tures under the auspices of the Society. They were also published as contributions to The Independent, A special impor- tance attaches to them in the fact that [ viil FOREWORD they were prepared by one who has been a supreme and responsible leader in na- tional and international politics. Thus the age-long dreams of the poets, proph- ets and philosophers have at last entered the realm of practical statesmanship. / The first chapter deals with the Monroe Doctrine. This constitutes altogether the most important foreign policy of the United States. The second chapter dis- cusses the status of aliens under the con- flicting jurisdiction of the Federal and State Governments. This involves our chief danger of war. The third chapter completely refutes the claim of the Sen- ate that it has no power to consent to general arbitration treaties. This, if per- sisted in, will block all further participa- tion of the United States in the movement for extending the scope of arbitration. The fourth chapter elucidates the history and conception of a world federation in which is emphasized a court of judicial ar- [viii] FOREWORD bitration with jurisdiction of all disputes — "the highest court of appeals this side the bar of Eternal Justice." Its realiza- tion is only a matter of decades. The one way for a man to rise above the presidency of the United States is to as- cend into the international realm and there work for peace through justice. Mr. Taft has taken this upward step. This book is a Declaration of Interdependence. Hamilton Holt. CONTENTS Chaftbb Paqb I. The Monroe Doctrine: Its Limitations and Implica- tions 1 II. Shall the Federal Govern- ment Protect Aliens in Their Treaty Rights? . . 40 III. Arbitration Treaties that Mean Something .... 90 IV. Experiments in Federation for Judicial Settlement of In- ternational Disputes . . 133 CHAPTER I THE MONROE DOCTRINE: ITS LIMITATIONS AND IMPLICATIONS It is now ninety years since what the world has always called the Monroe Doc- trine was announced by President Mon- roe in a message to Congress. It was a declaration to the world that any efifort on the part of an European government to force its political system upon a people of this hemisphere, or to oppress it, would affect the safety of the United States and would be inimical to her interests, and, further, that the subjecting to coloniza- tion by any European government of any part of the two American continents, all [ 1 ] THE UNITED STATES AND PEACE of which was held to be within the lawful jurisdiction of some government, would be equally objectionable. The first part of the declaration was prompted by the fear that the then Holy Alliance of Rus- sia, Prussia, Austria, and France would attempt to assist Spain in reconquering the Central and South American repub- lics that had revolted from Spain and set up independent governments which had been recognized by the United States. The other part, against colonization, was prompted by certain claims that Russia was making to control over territory on the northwest coast of North America to which the United States then asserted title. There was expressly excepted from the doctrine thus announced any pur- pose to interfere with Spain's effort to regain her lost colonies or the continued exercise of jurisdiction by European gov- ernments over any colonies or territories which they then had in America. [2] THE MONROE DOCTRINE I have not space to give the details of the instances in which our Presidents, representing our country in its foreign relations, found it necessary to insist upon compliance with the Monroe Doc- trine. When Mr. Webster was secretary of state, he declined, in Mr. Tyler's name, to consider a proposition by England and France for a joint agreement with Spain as to the disposition of Cuba, stating that, while the United States did not intend to interfere with the control of Cuba by Spain, it could not consent to the owner- ship of the island by any other power. Again, when Yucatan had been tempo- rarily separated from Mexico by insurrec- tion, and the insurrecto leaders sought to dispose of the country to us, or to England, or to Spain, President Polk, in declining their offer to the United States, advised them that we could not consent to a transfer of dominion and sovereignty either to Spain, Great Britain, or any [3] ]r^ .^^" THE UNITED STATES AND PEACE other power, because "dangerous to our peace and safety." Without directly citing the Monroe Doctrine by name, Mr. Seward protested against the occupation of Mexico by France during the Civil War with the purpose of colonizing or setting up a new >^ government on the ruins of the Mexican Government. France denied having any other purpose than to collect its debts and redress its wrongs. Afterward the Mexican Government was overthrown and an empire established with an Aus- trian archduke at its head. The Ameri- can Civil War closed, the American troops were massed on the Mexican border under Sheridan, and France was requested to withdraw her troops. She did so, and the collapse of the Maximilian govern- ment followed. ^ ^ President Grant, in sending the Santo Domingo treaty to the Senate, announced that thereafter no territory on the conti- [4] THE MONROE DOCTRINE nent should be regarded as subject to transfer to an European power, and that this was an adherence to the Monroe Doctrine as a measure of national pro- tection. Again, the policy was insisted upon and maintained by Mr. Olney and Mr. Cleveland in reference to England's dec- lination to arbitrate the boundary issue between Venezuela and British Guiana, in which Mr. Cleveland and Mr. Olney beheved that they saw a desire on the part of Great Britain, through a boundary dispute, to sequester a considerable part of Venezuela, valuable because of the discovery of gold-mines in it. Mr. Cleve- land's position in the matter was sus- tained by a resolution which was passed by both houses. In this instance Mr. Olney used the expression: To-day the United States is practically sovereign on this continent, and its fiat is law upon the subjects to which it confines its interposition. 15] THE UNITED STATES AND PEACE The original declaration of the Monroe Doctrine was prompted by England's wish, when Canning was foreign minister, that England and the United States should make a joint declaration of such a policy. Since its announcement by President Monroe there have been fre- quent intimations by English statesmen while in office that they do not object to its maintenance. Whether the other gov- ernments of Europe have acquiesced in it or not, it is certain that none of them have insisted upon violating it when the i matter was called to their attention by the United States. Every one admits that its maintenance until recently has made for the peace of the world, has kept European governments from intermed- dling in the politics of this hemisphere, and has enabled all the various Latin- American republics that were oflFshoots from Spain to maintain their own govern- ments and their independence. While it I 6 ] THE MONROE DOCTRINE may be truly said that it has not made for peace between them, still, that was not within the scope of its purpose. It has, however, restrained the land-hun- ger and the growing disposition for colo- nization by some European governments which otherwise would certainly have carried them into this hemisphere. The very revolutions and instabilities of many of the Latin-American republics would have offered frequent excuse and op- \ portunity for intervention by European | governments which they would have 1 promptly improved. But now we are told that under changed conditions the Monroe Doctrine has be- come an obsolete shibboleth, that it pro- motes friction with our Latin-American neighbors, and that it is time for us to abandon it. It is said that it is an assertion of a suzerainty by the United States over both continents; that it seeks to keep under the tutelage of the United [7] THE UNITED STATES AND PEACE States great and powerful nations like the Argentine Republic, Brazil, and Chile; that its continuance as a declared policy of this government alienates these and other republics of South America, injures their proper national pride, creates a re- sentment against us which interferes with our trade relations, and does not promote the friendly feeling that strength- ens the cause of peace. Before we proceed to consider this proposition 'we ought to make clear cer- tain definite limitations of the Monroe policy that are not always given weight by those who condemn it. In the first place, the Monroe Doctrine is a policy of the United States and is not an obli- gation of international law binding upon any of the countries affected, either the European countries whose action it seeks to limit or the countries whose govern- ment and territory it seeks to protect. Nor, indeed, does it create an absolute [8] THE MONROE DOCTRINE obligation on the part of the United States to enforce it. It rests primarily upon the danger to the interest and safety. ^Wk'^^ "*^^ of the United States, and, therefore, the nearer to her boundaries the attempted violation of the doctrine, the more di- rectly her safety is affected and the more , acute her interest, and, naturally, there- fore, the more extreme will be the mea- sures to which she would resort to enforce it. While the assertion of the doctrine covers both continents, the measures of the United States in objecting to an in- vasion of the policy might be much less emphatic in the case where it was at- tempted in countries as remote as Ar- gentina, Brazil, and Chile than in the countries surrounding the Caribbean Sea, or brought close to the United States by the opening of the Panama Canal. < It is well that the declared policy has in the past covered both continents, because this certainly contributed to the causes which [9] THE UNITED STATES AND PEACE made Argentina, Brazil, and Chile the powerful countries they have become. But, as Daniel Webster said in Congress in 1826, speaking of the plans of the Holy Alliance: If an armament had been furnished by the allies to act against provinces the most re- mote from us, as Chile or Buenos Ayres, the distance of the scene of action diminishing our apprehension of danger, and diminishing also our means of effectual interposition, might still have left us to content ourselves with remonstrance. But a very different case would have arisen if an army equipped and maintained by these powers had been landed on the shores of the Gulf of Mexico and commenced the war in our own imme- diate neighborhood. Such an event might justly be regarded as dangerous to ourselves, and on that ground call for decided and im- mediate interference by us. ?^In other words, the extent of our inter- vention to enforce the policy is a matter of our own judgment, with a notice that it may cover all America. It therefore follows that the Monroe Doctrine, so far [10] r" THE MONROE DOCTRINE as it applies to Argentina, Brazil, and Chile, the so-called ABC governments of South America, is now never likely to be pressed, first because they have reached such a point that they are able to pro- tect themselves against any European interference, and, second, because they are so remote from us that a violation of the doctrine with respect to them would be little harmful to our interests and safety. 44^ The second great limitation of the ,;^ Monroe Doctrine is that it does not con- template any interference on our part Fith the right of an European govern- ment to declare and make war upon any American government, or to pursue such course in the vindication of its national rights as would be a proper method under the rules of international law. < This was expressly declared to be a proper term in the statement of the Doctrine by Mr. Seward during our Civil War, when Spain [11] THE UNITED STATES AND PEACE made war against Chile. He announced our intention to observe neutrality be- tween the two nations, and he laid down the proposition that the Doctrine did not require the United States, in a consistent pursuit of it, to protect any government in this hemisphere, either by a defensive alhance against the attacking European power or by interfering to prevent such punishment as it might inflict, provided only that in the end the conquering power did not force its own government upon the conquered people, or compel ^ permanent transfer to it of their ter- ritory, or resort to any other unjustly oppressive measures against them. And Mr. Roosevelt, in his communications to Congress, has again and again asserted that maintenance of the Doctrine does not require our government to object to armed measures on the part of European governments to collect their debts and the debts of their nationals against gov- [U] THE MONROE DOCTRINE ernments in this continent that are in default of their just obUgations, provided only that they do not attempt to satisfy those obligations by taking over to them- selves ownership and possession of the territory of the debtor governments or by other oppressive measures. It may be conceded that Mr. Olney used language that was unfortunate in describing the ef- fect of the Monroe Doctrine upon the position of the United States in this hemi- sphere. It is not remarkable that it has been construed to be the claim of suze- rainty over the territory of the two Amer- ican continents. *' Our fiat is not law to control the domestic concerns or, indeed, the foreign policies of the Latin-American republics or of other American govern- ments, nor do we exercise substantial sov- ereignty over them. We are concerned that their governments shall not be inter- fered with by European governments; we are concerned that this hemisphere shall [13] THE UNITED STATES AND PEACE not be a field for land aggrandizement and the chase for increased political power by- European governments, such as we have witnessed in Africa and in China and Man- churia, and we believe that such a condi- tion would be inimical to our safety and interests. More than this, where a con- troversy between an European govern- ment and a Latin- American republic is of such a character that it is likely to lead to war, we feel that our earnest desire to escape the possible result against which the Monroe Doctrine is aimed is sufficient to justify our mediating between the Euro- pean power and the Latin-American re- public, and bringing about by negotiation, if possible, a peaceable settlement of the difference. ' This is what Mr. Roosevelt did in Venezuela and in Santo Domingo. It was not that the use of force or threat- ened force to collect their debts by the European powers constituted a violation of the Monroe Doctrine that induced Mr. [14] THE MONROE DOCTRINE Roosevelt to act, but only a general de- sire to promote peace and also a wish to avoid circumstances in which an inva- sion of the Monroe Doctrine might easily follow. > It is said — and this is what frightens peace advocates from the Monroe Doc- trine — that it rests on force and ulti- mately on the strength of our army and our navy. That is true, if its enforce- ment is resisted. Its ultimate sanction and vindication are in our ability to maintain it; but our constant upholding and assertion of the Doctrine have en- abled us, with the conflicting interests of European powers — the support of some and the acquiescence of others — to give effect to the Doctrine for now nearly a century, and that without the firing of a single shot. This has secured the Doc- trine a traditional weight that assertion of a new policy by the United States never could have. It is a national asset, [15] THE UNITED STATES AND PEACE and, indeed, an asset of the highest value for those who would promote the peace of the world. ^ The mere fact that the fur- ther successful maintenance of the Mon- roe Doctrine, in the improbable event that any European power shall deliber- ately violate it, will require the exercise of force upon our part is certainly not a reason for the most sincere advocate of peace to insist upon sacrificing its benefi- cent influence and prestige as an instru- ment of peace to prevent European inter- meddling in this hemisphere which a century of successful insistence without actual use of force has given it. Much as the Doctrine may be criti- cised by the Continental press of Europe, it is an institution of one hundred years' standing; it is something that its age is bound to make Europe respect. It was advanced at a time when we were but a small nation with little power, and it has acquired additional force and pres- [16 1 THE MONROE DOCTRINE tige as we have grown to our present size and strength and international influence. Were we to abandon the Doctrine and thus, in effect, notify the European gov- ernments that, so far as our remonstrance or interposition was concerned, they might take possession of Santo Domingo, of Haiti, or of any of the Central Ameri- can republics, or of any South American republics that might be disturbed by rev- olution and that might give them some international excuse for intervention, it would be but a very short time before we would be forced into controversies that would be much more dangerous to the peace of this hemisphere than our continued assertion of the Doctrine prop- erly understood and limited. >I fully sympathize with the desire to make such countries as the Argentine RepubHc, Brazil, Chile, and other pow- ers in South America that are acquiring stability and maintaining law and order [ m THE UNITED STATES AND PEACE within their boundaries, understand that we do not claim to exercise over them any suzerainty at all and that we are not tendering our guardianship as if they were children or as if they needed it. We reserve to ourselves the right, should oppression or injustice be manifested in a warlike way by any of the European countries against them, and should they be unfortunate enough not to be able to give effective resistance, to determine whether it is not in our own interest to intervene and prevent an overturning of their government or an appropriation of their territory. But we recognize that this possibility is so remote that it prac- tically removes them from the operation of the Monroe Doctrine. ^ I am glad to see that Mr. Roosevelt, in his visit to those countries, has sought to impress them with the same view of the Monroe Doctrine that I have thus expressed. Indeed, he would have helped them, and [18] 1 THE MONROE DOCTRINE us, too, far more if he had confined his teachings and lectures to explanations and limitations of the Monroe Doctrine and had not sought to destroy the inde- pendence of the judiciary and demoralize the administration of justice in two con- tinents. But it is said that we ought to invite in these so-called ABC powers of South America to assist us in upholding the Doctrine and also in doing what the Doc- trine, as well as neighborhood interests, may lead us to do with near-by coun- tries around the Gulf of Mexico and the Caribbean Sea. It is suggested that we ought to establish some sort of relation- ship with these great powers as members of a kind of hegemony to decide upon Latin- American questions and participate in intervention to help along the smaller countries, and thus put such powers on an equality with us in our American policy and give assurance of our disinterested- [19] THE UNITED STATES AND PEACE ness. If we could do this I would be glad to have it done, because it would relieve us of part of a burden and would give greater weight to the declaration of the policy. I would be glad to have an eflfort tactfully made to this end and I don't want to discourage it; but I fear ^ we should find that these Powers would be loath to assume responsibility or bur- den in the matter of the weKare of a gov- ^pWKernment like one of the Central American republics, or Haiti or Santo Domingo so remote from them and so near to us. v_i We attempted, in case of disturbance in the Central American governments once or twice, to interest Mexico, when Mexico had a responsible government and was very near at hand, but President Diaz was loath to take any part with the United States in such an arrangement, and we found that whatever had to be done had to be done largely on the responsibility of the United States. [20] THE MONROE DOCTRINE If action in respect of any republic of South America were necessary under the Monroe Doctrine, the joining of the A B C powers with the United States might involve suspicion and jealousy on the part of other South American repub- Ucs not quite so prosperous or so stable as the ABC powers. Thus, instead of helping the situation, the participa- tion of part of the South American gov- ernments might only complicate it. I know something about the character of those countries myself, not from personal observation but from a study of the char- acter of Spanish-descended civihzations and societies, and I venture to say that, sensitive as they all may be in respect to suspected encroachments of the United '"^^i States, they are even more sensitive as between themselves and their respective ambitions. During my administration Mr. Knox, the secretary of state, ten- dered the good oflBces of the United [21] THE UNITED STATES AND PEACE States as between South American gov- ernments who were bitter against each other over boundaries and other disputes, and successfully brought them to a peace- ful solution; but in those controversies it was quite apparent that whatever might be the general feeling against the United States, their suspicions of each other, when their interests were at vari- ance, were quite as intense. Indeed, it is not too much to say that the fear in the hearts of the less powerful peoples of South America of a South American hegemony is more real than any genuine fear they may have of the actual suzerainty of our government. My belief, therefore, is that unless we could organize a union of all the countries of two continents, which would be so clumsy as to be entirely im- practicable, the influence of the United States can probably be exerted in sup- port of the Monroe Doctrine more effec- tively and much less invidiously alone THE MONROE DOCTRINE than by an attempt to unite certain of the South American powers in an effort to preserve its successful maintenance. I hope my fear in this respect will prove to be unfounded and that the plan sug- gested may be successful. I have read with a great deal of inter- est the account given by Professor Bing- ham of South American public opinion toward the United States in his most interesting book, which he calls "The Monroe Doctrine, an Obsolete Shibbo- leth." His views were based on an ex- tended and very valuable opportunity for observation in nearly all the South American countries. He pictures with great force the feeling that is cultivated by the press of those countries against the United States, the deep suspicion that the people of South America have toward her professions of disinterestedness in South American and Central American politics, and their resentment at what [23] THE UNITED STATES AND PEACE they regard as an assumption of guard- ianship and of suzerainty over them, and a patronizing attitude which they beheve to be involved in the maintenance of the Monroe Doctrine. He sets out the con- struction put by them on the various acts of the United States, and the mean and selfish and greedy motives they at- tribute to her, judging from speeches by their statesmen and politicians and from editorials of their newspapers. I know something of the opportunity the Span- ish language afiFords to convey, with the most studied and graceful periods and with an assumption of courteous and im- partial treatment, insinuations and suspi- cions of the sincerity of a person or a gov- ernment against whom the writer desires to awaken the hostihty of his readers. Professor Bingham, without discussing the merits of the acts of authorities of the United States, to which he in- vites attention, merely gives the view [24] THE MONROE DOCTRINE that the South American press of different countries took of those acts. No one can read the book and not see how unjust is much of the criticism of the United States. Nevertheless, I quite agree that it is the bounden duty of this government and her people to avoid as much as possible those acts which can give rise to a misconstruction of her mo- tives, and to take a course which shall deprive them of any appearance of a de- sire to use her power in this hemisphere or to enforce and extend the Monroe Doctrine with a view to her selfish ag- grandizement. I know the attractive- ness of the Spanish-American; I know his high-born courtesy; I know his love of art, his poetic nature, his response to gen- erous treatment; and I know how easily he misunderstands the thoughtless blunt- ness of an Anglo-Saxon diplomacy and the too frequent lack of regard for the feelings of others that we have inherited. [ 25 ] THE UNITED STATES AND PEACE I sympathize deeply with every effort to remove every obstacle to good feeling between us and a great and growing people, if only we are not called upon in doing so to give up something valuable to us and to the world. The injustice of the attitude which Professor Bingham and others who take his views describe as that of the South American press may be seen by one or two references. Our Cuban war was ^ begun with the most unselfish motives on our part and with a self-denying declaration; but it has been flaunted in South America as a war for aggran- dizement and the exploitation of new territory, because the people of Porto Rico desired to come under our govern- ment and we accepted them, and because we found the Philippines in such a condi- tion of anarchy that we had to take them over. We have not exploited either Porto Rico or the Philippines. We have only [26] THE MONROE DOCTRINE given them a better government and Qiore prosperity and individual liberty than they ever had. We have promised the Filipinos that when their people ac- quire sufficient education and knowledge to make their government stable we will turn over the government to them. Twice Cuba has been under our control, and twice we have turned the island back to the people to whom we promised to do so when we entered upon the war. It has cost us hundreds of millions of money and many valuable lives to give her her independence. Nevertheless, our conduct, as unselfish and self-sacrificing as history shows, is treated among the South American people as an indication of our desire to enlarge our territorial control. Had we desired to extend our territory, how easily we could have done it? How many opportunities have been presented to us that we have rejected.^ Now, is it a reason for us to give up a [ 27 1 THE UNITED STATES AND PEACE doctrine that has for near a century helped along the cause of peace that our motives in maintaining it have been mis- construed by the peoples who have so much profited by our enforcing it? Iff L we had entered upon the policy merely f because those peoples asked us to assert ^ it, and for no other reason, then their j wish to end it might properly be given! great weight, but the doctrine was orig-l inally declared to be one in our own in-j terest and for our own safety. True, it! has greatly strengthened our insistence! upon the doctrine that it helped these^** peoples to maintain their governmental integrity and independence. Neverthgz less, the question whether we shall conr ti^^lf it ought Tint, tn bp rontrnllpd hy.. Jhfiii- uTiju^t f eeh'n g th a t our continu e d ^Iig jnt^ri^^'"^ ^^ ^^^ Hnptrinp ^ with it s prnppr h'r m'tpti^TiS; ^^ ^^^^ ^"^^ intpmRt . , is in some way or other a reflection upon their nationa l prestige f^j^A intAmaiirkrutJ [28] THE MONROE DOCTRINE standing- I t has made for nin ety year s. Jffihy will it not make for p eace the n e xt mi(^ himdrpH y pars? But it is said that the doctrine has been greatly extended and that it has led to intermeddling by our government in the politics of the smaller countries like Santo Domingo and the Central American republics, and that we are ex- ercising a protectorate of a direct char- acter over some of them. What we are doing with respect to them is in the in- terest of civilization, and we ought to do it to aid our neighboring governments whether the Monroe Doctrine prevails or not. My hope, as an earnest advocate of world peace, is that ultimately by in- ternational agreement we shall establish a court, like that of The Hague, into which any government aggrieved by any other government may bring the offending gov- ernment before an impartial tribunal to answer for its fault and to abide the judg- [ 29] THE UNITED STATES AND PEACE ment of the court. Now, it is utterly im- possible that the peace of the world may be brought about under such an arrange- ment as long as there are governments that cannot maintain peace within their own borders and whose instability is such that war is rather the normal than the exceptional status within their territory. xOne of the most crying needs in the cause of general peace is the promotion of sta- bility in government in badly governed territory. This has been the case with Santo Domingo and Haiti. It has been true in a majority of the republics of Cen- tral America and until recently was true in the northern part of South America. Revolutions in those countries have been constant, peace has been the exception, and prosperity, health, happiness, law and order have all been impossible under such conditions and in such governments. The nearer they are to our borders the more of a nuisance they have become to [30] THE MONROE DOCTRINE US and the more injurious they are to our national interests. It was the neighbor- hood nuisance that led to the Cuban war and justified it. Now, when we properly may, with the consent of those in au- thority in such governments and with- out too much sacrifice on our part, aid those governments in bringing about sta- bility and law and order, without involv- ing ourselves in their civil wars, it is proper national policy for us to do so. It is not only proper national policy but it is international philanthropy. We owe it as much as the fortunate man owes aid to the unfortunate in the same neighbor- hood and in the same community. We are international trustees of the prosper- ity we have and the power we enjoy, and we are in duty bound to use them when it is both convenient and proper to help our neighbors. When this help prevents the happening of events that may prove to be an acute violation of the Monroe [31 ] THE UNITED STATES AND PEACE Doctrine by European governments, our duty in this regard is only increased and amplified. - Therefore it was that Mr. Roosevelt mediated between Venezuela and the governments of England, Ger- many, and Italy, as I have already ex- plained. So it was in the case of Santo Domingo, where a similar situation was foreshadowed, and in which, in order to relieve that situation, we assumed the burden of appointing tax-collectors and custom-house oflSLcials who were under our protection and who were saved from rev- olutionary attacks. We thus took awaM any motive for revolution, because i, could not be successful without the funds which the seizure of custom-houses anc the instrumentalities for the collection o: ' taxes would furnish. This arrangement has been most profitable to the people of Santo Domingo and has relieved them from a succession of revolutions that had been their fate before it was adopted. [32] THE MONROE DOCTRINE ^ The policy does not involve and ought not to involve a protectorate or any greater intervention in their internal affairs or a control of them than this power to protect custom-houses may involve. This is ample to secure pacifi- cation. We cannot be too careful to avoid forcing our own ideas of government on peoples who, though favoring popular government, have such different ideas as to what constitutes it, and whose needs in respect to the forms of government that promote prosperity and happiness for them are widely variant from our own requirements. < Arrangements similar to that made with Santo Domingo were sought from the United States by the governments of Honduras and Nicaragua, and treaties were made, but they were defeated by the Senate of the United States without good ground, as it seems to me. I am [ 33 ] THE UNITED STATES AND PEACE glad to note that the present administra- tion is looking with more favor upon treaties of this kind than its present sup- porters in the Senate were willing to give them when they were tendered to them for ratification by a Republican adminis- tration. vWhen we come to Mexico, where an- archy seems now to reign, the question is a most delicate one. Intervention by force means the expenditure of enormous treasure on our part, the loss of most val- uable lives, and the dragging out of a te- dious war against guerillas, in a track- less country, which will arouse no high patriotic spirit and which, after we have finished it and completed the work of tranquillity, will leave us still a problem full of diflSculty and danger. All that those of us who are not in the govern- ment can do is to support the hands of the President and the secretary of state, and to present to the European powers [34] THE MONROE DOCTRINE and the world a solid front, with the prayer that the policy which is being pursued, whatever it may be, will be a successful one and relieve us from the awful burden of such a war as that I have described. In spite of the discouraging conditions in Mexico, however, the pres- ent situation illustrates the influence of the Monroe Doctrine on the attitude of the European powers, which, in spite of the injury to the property and persons of their nationals, look to the United States as the guide whom they are willing to follow in working out a solution. The condition of Mexico is bad enough, to be sure, but if it had involved us in European complications, such as would have been likely to arise had there been European intervention, its consequences might have been a great deal worse. Exception is taken to the resolution which the Senate adopted in August, 1912, in which it was declared: [ 35 1 THE UNITED STATES AND PEACE That when any harbor or other place on the American continents is so situated that the occupation thereof for naval or military purposes might threaten the communications or the safety of the United States, the gov- ernment of the United States could not see without grave concern the possession of such harbor or other place by any corporation or association which has such a relatiqn ta an- other government, not American, as to give that government practical power of control for national purposes. It suffices to say that this is not an enlargement of the Monroe Doctrine. It only calls special attention to a way of indirection by which it can be violated. The policy of making this announce- ment at the time may perhaps be ques- tioned, but that such an indirect method of securing a military outpost threaten- ing to the safety of the United States would be injurious to her interests does not admit of doubt. I do not intend here to go into the question of the merits of the controversy [36 1 THE MONROE DOCTRINE over the justice of our acquisition of the Canal Zone, enabling us to construct the Panama Canal. It would involve too long a discussion and is not relevant to the subject-matter of this chapter, be- cause what was done in that case by our government was not any assertion of the Monroe Doctrine, was not justified on the ground of the Monroe Doctrine, and our right to do what we did was based on very dififerent principles. Earnest and sincere efforts were made in my adminis- tration to satisfy the United States of Colombia. A treaty was made with her representative, in Mr. Roosevelt's ad- ministration, which seemed fair, but it was immediately rejected. All efforts to secure an adjustment of her grievances have failed, and recently negotiations were postponed by her, with the behef that the incoming administration, of different political complexion, would be more will- ing than mine to do what she regards as [37] THE UNITED STATES AND PEACE exact justice to her. We should, there- fore, await with hope that the present administration may solve what for us was an insoluble difficulty. Mr. Root, whose great constructive labors in the cause of world peace have just received most just recognition in the Nobel Prize, in his visit to South Amer- ica attempted to convince the people of those republics that we wish no more ter- ritory and that we wish only the pros- perity of all our neighbors. And Mr. Knox, in his visit to Venezuela and to all the republics of the West Indies and Central America, made the same effort. I hope that Mr. Roosevelt may carry the same message to South America. Doubt- less, he is doing so. After some years I hope that a con- sistent course on our part may effect an abatement of the present feeling described by Professor Bingham and others. But, however that may be, and whatever in- [38] THE MONROE DOCTRINE justice the South American peoples may do us in suspecting us of selfish plans against them and their territory, we ought not to allow the present expressed hostil- ity to the Monroe Doctrine, which really involves no assertion of suzerainty or sov- ereignty over them, to change our course. The doctrine is based on a wise policy in our own interest to exclude from this hemisphere the selfish political interfer- ence of European governments and their appropriation of territory, not for the purpose of increasing our power or terri tory, but for the purpose of promoting the prosperity, independence, and happi ness of the peoples of these two conti nents and so of insuring our own peao and safety. [39] CHAPTER II SHALL THE FEDERAL GOVERN- MENT PROTECT ALIENS IN THEIR TREATY RIGHTS? The spread of democracy throughout the world and the influence that each people has in determining the foreign policy of its government have necessarily affected the discussion of useful agencies for the avoidance of war. Before the nineteenth century, wars largely turned upon the interests of dynasties and the ambitions and hatreds of kings, but now wars between countries having stable govern- ments are rarely begun without the wish of the majority of their respective peo- ples. Even a country like Russia, in the government of which the people are [40] ALIENS AND THEIR TREATY RIGHTS not supposed to have a great voice, was obliged to make peace in the Japanese war largely because her people opposed its continuance. Therefore, it becomes important, in the maintenance of peace, that each stable government representing its people in its foreign relations, and being answerable for them to another people, should be able to perform its promises promptly, and should certainly not keep them only to the ear and break them to the hope. Nice distinctions based on precedents in international law have more weight with learned states- men representing a dynasty than with an angered people. When they suffer in- justice they look to the substance of the international contract for their protec- tion, and if that is not performed, and the breach is an outrage upon their own race and their own kith and kin, their indignant feeling is dangerous to the peace between the two nations. [41] THE UNITED STATES AND PEACE In one of my visits to Japan, as secre- tary of war, I had the pleasure of meeting and talking with Count Hayashi, one of the great statesmen and diplomats of that wonderful empire, and recently deceased. We were discussing very freely the re- lations between Japan and the United States, and he said that he felt confident that I was right in saying that the United States had no desire for a war with Japan, but, on the contrary, wished to avoid it by every honorable means. He expressed the hope that I credited his statement that the empire of Japan and those responsible for its government were equally anxious to make the peace between the two coun- tries permanent and abiding. "But," said he, "my people have grown much in national stature. They have won suc- cesses, civil and military. They have a deep love of their country and of their fellow countrymen, and perhaps they have what you will call 'patriotic self- [42] ALIENS AND THEIR TREATY RIGHTS conceit.' However this may be, their sensitiveness as a nation has increased, and it makes them deeply resent an in- justice or an invidious discrimination against them in a foreign country or by a foreign people. The only possible dan- ger of a breach between our two nations that I can imagine would be one growing out of the mistreatment of our people, living under the promised protection of the United States, through the lawless violence of a mob directed against them as Japanese." Now, what is true of the relation of these two countries is likely to be true of the relation between the United States and peoples of other countries. With al- most every nation we have a treaty in which each contracting party agrees that the nationals of the other party may re- side within its jurisdiction and, comply- ing with the laws, may legally pursue their vocations or business and enjoy the [43] THE UNITED STATES AND PEACE same protection to life, liberty, and prop- erty that the citizens of the contracting country enjoy. This is, perhaps, the most common clause in the many treaties of amity and commerce that now control the relations between the nations of the world. X Since 1811 there have been many cases of mob violence against aliens, in which they have been killed or grievously in- jured. And while in all these cases we denied any liability. Congress has gen- erally made payments to those who were injured and to the famiUes of those who were killed. In some cases the amount paid was recited in the act of appropriation to be a gratuity without admission of liability. In other cases the amount was paid without such reserva- tion. In no case that I have been able to discover have the perpetrators of these outrages been punished. In all the cases the local authorities have evidently sym- [ 44 ] ALIENS AND THEIR TREATY RIGHTS pathized with the mob spirit and pur- pose or have been so terrorized by it as to avoid making a judicial investigation of real thoroughness. The results have thus been: first, the mob; second, the felonious assault, or murder, and destruc- tion of property; third, the farce of a State investigation; fourth, the indem- nity to the injured and the family of the dead; and, fifth, the complete immxmity of the guilty. Such a list of outrages, reaching clear from 1811 down to 1910, without punishment, is not a record in which we can take pride. I propose to consider here whether any- thing can be done to change this state of affairs so long continued that recurring incidents of the same kind constitute it a custom. I feel confident that some- thing effective can be done to this end through valid federal legislation confer- ring on the federal government and courts executive and judicial jurisdiction to pre- [45] THE UNITED STATES AND PEACE vent and punish these crimes against ahens in violation of their treaty rights. In some of such cases the feehng be- tween the countries involved has run high, and with the increased popular con- trol of foreign policies we may expect these incidents to become more dangerous to our peace. In letters of our secretaries of state, in answer to complaints of for- eign governments in such cases, attention is called to the fact that our general government has no jurisdiction to direct the prosecution under federal law of the perpetrators of these outrages, and the secretaries have been content with the statement that the persons killed or in- jured have had the same protection that citizens of this country have had, which, I may add, in all the instances under ex- amination, was no protection at all. The secretaries have pointed out that if pro- tection was needed or punishment was to be inflicted, it was the duty of the [46] ALIENS AND THEIR TREATY RIGHTS State authorities to give it, as would have been the case had the persons killed or feloniously assaulted been American citizens. We make a promise and then we let somebody else attempt to perform it, and when it is not performed and it never is, we say: "We are not responsible for this. It is somebody else's failure, and, besides, you are not suflfering any worse than our own citizens in this mat- ter, because they enjoy the same absence of protection extended to your people. However, say no more about it. We'll salve your feelings by a little money, the amount of which we'll fix." • Now, we know the fact to be from this history that in such cases generally there is not the slightest hope through the State courts of having proper punishment in- flicted, or even attempted. In such cases the juries are generally drawn from the immediate neighborhood of the county and town in which the outrage is com- [47] THE UNITED STATES AND PEACE mitted, and the case ultimately reduces itself to the result that the grand jury, or, if an indictment is found, which is almost as rare as a conviction, the petit jury, will be composed of either the criminals themselves or of their relatives and neighbors and sympathizers, and the prosecution is a farce. It does not soothe one's pride of coun- try to note the number of lynchings of our own citizens that go unwhipped of justice and that are properly held up to us with scorn whenever we assume, as we too frequently do, a morality higher than, and a government better than, that of other peoples. Nor is our feeling in this regard rendered less acute by hear- ing from the governors of some of our States expressions brazenly defending and approving such lynchings. Still more em- barrassing is our situation, when we are called upon to explain to a government with which we have made a solemn cove- [48] ALIENS AND THEIR TREATY RIGHTS nant to protect its citizens or subjects in their right of peaceable residence here and in the enjoyment of business and happiness under the segis of the United States, that, while we did make a cove- nant, it ought to have known that under our system we as a government had no means of performing that covenant or of punishing those who, as our citizens, had grossly violated it. For lynchings of our own citizens within the jurisdiction of the State we can say to ourselves, for we have no other plea, that under the form of our government such crimes are a State matter, and if the peo- ple of a State will not provide, for their own protection, a machinery in the ad- ministration of justice that will prevent such lawless violence, and a public opinion to make it effective, then it is for them to bear the ignominy of such a condition. But when, in the case of the lynchings of aliens, whom we have plighted our na- [49] THE UNITED STATES AND PEACE tional faith to protect, the fact is that the Federal Government has the power to enact legislation to set its own adminis- tration of justice going by its own prose- cuting oflBcers and through its own courts, and has not done so, we may well hang our heads in the face of adverse criticism. Such legislation need not find its only reason in our pride of country and our commendable desire to be considered in the first rank of civilized nations, obser- vant of treaty obligations and earnest in the protection of the rights both of our own citizens and our foreign guests. A much stronger reason for such legislation is in the Federal Government's taking over the right to protect itself and all the people against the danger of war that may be thrust on us by the lawless, cruel, prejudiced action of the people of a town, a city, or a county in dealing with sub- jects or citizens of other countries. It might well be that the race prejudice of [50] ALIENS AND THEIR TREATY RIGHTS such a community would carry us into war, and thus sacrifice thousands of val- uable citizens drawn from the whole country, and consume hundreds of mil- lions of treasure, to be met by taxation upon all the people of the United States. Ought not the government, therefore, to insist, should not all the people of the United States require, that their execu- tive at Washington, with a full knowledge of our delicate relations to the foreign sovereign whose subjects have been mur- dered, should have power enough to set the whole prosecuting and detective ma- chinery of the government at work to bring the ringleaders of such mobs to trial before juries summoned from a wider vicinage than that of the local commu- nity in which the outrage was committed, and free from the sympathy and terror- ism there likely to exist? But it is said that the dead are not protected or restored to life by punish- [51] THE UNITED STATES AND PEACE ment of the malefactors, that those who are injured have no right to criminal prosecutions, which are matters of State concern only, and that, as the injury has been done, if pecuniary indemnity is granted by the general government, all that the victims can properly demand is given them. I am not discussing this from the standpoint of the victims at all. I am discussing it from the standpoint of our own governmental self-respect, safety, and freedom from in4:ernational offence. It is true that the only punishment of per- petrators to such an outrage must come after the outrage; but if the ringleaders of one mob in a United States court were hanged for murder, the number of future lynchings of foreigners would be reduced in direct ratio to the cer- tainty of a repetition of that kind of jus- tice. I have had occasion to say before, and I say again, that the manner of trial in the Federal courts, in which the judge [52] ALIENS AND THEIR TREATY RIGHTS has the same control of the trial that he has at common law, can assist the jury- in its investigation of facts, and can take charge of the trial out of the hands of the counsel for the defence, is a terror to evil-doers. While in the Eastern . State courts, justice in crimes of violence is generally meted out with even hand, in the Western and Southern State courts this is not true, and the difference be- tween the administration in the Federal courts and in the State courts in such States is well known to those who are likely to become criminals. The cer- tainty with which mail robbers have been brought to justice makes every man who thinks of robbing the mail consider the chances of escape from Uncle Sam. In- deed, cases have occurred in which train robbers have religiously refrained from sacking the mail-car in order to avoid the federal jurisdiction. Moreover, in cases of mob violence against aliens, the [53] THE UNITED STATES AND PEACE direct energetic action of the National Government under the eye of the com- plaining foreign ambassador at Washing- ton would itself take the sting out of the incident, and minimize its danger as a cause for bad feeling between the two countries. Of course, every one recognizes that the government of the United States cannot guarantee the detection and arrest of the criminals in such cases, or contract that when they are caught and tried, convic- tion will necessarily follow. In no civilized country can this be assured, and this cir- cumstance is an implied term of every treaty promise of this sort. But that uncertainty does not prevent courage, promptness, and energy on the part of the marshals and detective agents of the gov- ernment in efforts to identify and arrest the offenders and to find the evidence against them, or efficiency on the part of the prosecuting officers in properly preparing [54] ALIENS AND THEIR TREATY RIGHTS the case for the grand and petit juries. It is the utter absence of any sincere ef- fort of the local authorities in such cases to bring the criminals to justice that nat- urally angers foreign peoples when they are asking reparation for the awful results of mob violence. It is our actual help- lessness, and our hopelessness of any re- medial measures to prevent a recurrence of such outrages, that give the futile ne- gotiation such a deplorable color in the eyes of the injured nation. We can all remember the deep feeling aroused in our whole people over the massacre of the Jews in parts of Russia and the intense indignation that mani- fested itself among their coreligionists in this country, and how sceptical all our people were concerning official denials of governmental responsibility for such out- rages. Let us try to look at lynchings of aliens in this country from the stand- point of their fellow countrymen at [55] THE UNITED STATES AND PEACE home. In the utter absence of protec- tion or attempted punishment of the murderers, can we wonder that there should be a deep-seated suspicion on their part that the bloody riots have been with either the connivance or acquiescence of our authorities? Federal legislation which would remedy the present great defect in the powers of the National Government to protect aliens in their treaty rights has been proposed to Congress a number of times and has en- countered serious opposition. The ques- tion was submitted to a committee of the American Bar Association that made a report in 1892, in which the constitu- tionality of such legislation was doubted and its wisdom was vigorously denied. We must assume that the reasons stated by the committee in that report are those which have moved Congress to withhold the action for which, in my judgment, there is a crying need. It is greater now than ever it was. It cannot be said that 15Q] ALIENS AND THEIR TREATY RIGHTS respect for the law or constituted author- ity has increased in this country. Espe- cially has it been weakened in those com- munities where class or race feeling seeks expression. Nor is the administration of criminal justice in the States in such cases likely to be more prompt or certain in the future than in the past. It is in such juris- dictions that the innovation of recall of executive officers is in vogue — a device which is not calculated to make gover- nors or sheriffs or prosecuting attorneys more active in their arrest and prosecu- tion of mob leaders, who are too often only exponents of local feeling and have the sympathy of the vicinage. When we add, as we may, that in many such States the recall of judges also has just come into use, we can understand how utterly futile it is to expect that there will be any improvement in making good the gov- ernment's promise to aliens through such official agencies. In order to meet the arguments of those [57] THE UNITED STATES AND PEACE who oppose this legislation, I shall run over the objections that were presented by the committee of the American Bar Association to whose report I have re- ferred. I ought to say in advance, with respect to the committee, that it was ev- idently composed of strict construction- ists of the Constitution, that their re- port was not adopted by the American Bar Association, but that instead they were discharged from the consideration of the subject, and, because of divided views in the association, a resolution was adopted declaring it inexpedient for the association to make any recommendation to Congress on the subject. The refer- ence of the subject to the committee was prompted by the then recent lynching of nine Italians confined in a New Orleans jail. A bill had been introduced into Congress to confer on Federal courts jurisdiction to try and punish perpetra- tors of such outrages. [58] ALIENS AND THEIR TREATY RIGHTS The first reason given as against such legislation was that outrages equally shocking as that at New Orleans had oc- curred in the past without suggesting any necessity for interfering with the powers of the States to punish crime. It might have been added that no one had ever been brought to justice for the commis- sion of any of the outrages of a similar character that had been committed since 1811. Just because a glaring defect has been allowed to exist for a century, is that any reason why we should not now take steps to remedy it.^^ The second objection was that in more than a century only seven cases have occurred to which by any possibility this legislation could apply. In answer to this, I can only set out an official list of the outrages committed in recent years. At Rock Springs, Wyoming, on No- vember 30, 1885, there was an armed at- [59] THE UNITED STATES AND PEACE tack by one hundred men on a Chinese settlement in a mining town, in which all the houses were burnt, and in which twenty-eight Chinamen lost their Uves, sixteen were wounded, and all their prop- erty was destroyed. In a similar attack in Squak Valley, Washington, three Chinamen were killed and four wounded. At Orofino, in Idaho, five Chinese were killed. At Anaconda, in Montana, four China- men were killed. At Snake River, Oregon, ten Chinamen were killed. In Juneau, Alaska, one hundred Chi- nese were expelled by lawless violence from their homes and the territory. In an official note of February 15, 1886, riots were reported at Bloomfield, Red- ding, Boulder Creek, Eureka, and other towns in California, involving murder, arson, and robbery, and it was added that [60] ALIENS AND THEIR TREATY RIGHTS thousands of Chinese had been driven from their homes. Nine Italians were lynched in New Orleans in 1891. In August, 1895, one Mexican was lynched in California. In October, 1895, one Mexican was lynched in Texas. In 1895 three Italians were lynched at Walsenberg, Colorado. In 1896 three Italians were lynched at Hahnville, Louisiana. In 1899 three Italians were lynched at Tallulah, Louisiana. In 1901 three Italians were lynched at Erin, Mississippi. In 1910 one Italian was lynched in Florida. This list, it seems to me, is a sufficient answer to the suggestion made by the committee that such events do not occur with sufficient frequency to require re- form, especially when we consider in con- [61] THE UNITED STATES AND PEACE nection with these eases the recent very acute feeHng over the treatment of Japa- nese subjects in Cahfornia. The third objection by the committee to Federal control of such prosecutions was that two of the outrages against aliens were in territories in control of the Fed- eral Government, and no better enforce- ment of the law was shown there than in State jurisdiction. They were in terri- tories under the control of territorial gov- ernments, with the same weaknesses that a State government has, with prosecutions in a county, with the jury drawn from the immediate vicinage and under the terrorism of a small locality, which is a very different thing from prosecutions in the regular Federal courts. The committee's fourth objection was that the suggestion of this legislation has not come in any case from a foreign power with whom we are in treaty relations, and that the demands pressed upon the United [62] ALIENS AND THEIR TREATY RIGHTS States Government have been almost uni- formly not so much for punishment of the assailants as for pecuniary indem- nity, which the injured parties had al- ready the right to seek in the United States courts. This statement is inaccurate. In many of the instances in which extended corre- spondence was had with our State de- partment by the diplomatic representa- tive of the foreign governments whose subjects had been killed or injured there were demands for punishment, and there were suggestions that the promise of pro- tection was made by the United States in the treaty and that the foreign countries looked to the United States and not to the subordinate States for compUance with treaty obligations. The fifth objection was that our secre- taries of state, in their correspondence with complaining foreign representatives, have uniformly insisted upon the com- [63] THE UNITED STATES AND PEACE mon-law principle that the punishment of crime must be left to the ordinary and orderly administration of justice by the State courts in like manner as in similar cases affecting our own citizens. Of course our government has taken that position. The secretaries of state found themselves in such a position that they had to. It is not to be expected that they would have made prominent our failure to legislate when we might have legislated to give us the proper means of discharging our obligations. In his annual message of December 5, 1899, President McKinley used these words: For the fourth time in the present decade question has arisen with the Government of Italy in regard to the lynching of Italian subjects. The latest of these deplorable events occurred at Tallulah, Louisiana, whereby ^ve unfortunates of Italian origin were taken from jail and hanged. . . . The recurrence of these distressing manifestations [64] ALIENS AND THEIR TREATY RIGHTS of blind mob fury directed at dependents or natives of a foreign country suggests that the contingency has arisen for action by Con- gress in the direction of conferring upon the federal courts jurisdiction in this class of in- ternational cases where the ultimate respon- sibility of the Federal Government may be involved. And he refers to a recommendation of President Harrison made in this matter in 1891, just after the Mafia case, in which President Harrison said: It would, I believe, be entirely competent for Congress to make offenses against the treaty rights of foreigners domiciled in the United States cognizable in the federal courts. This has not, however, been done, and the federal officers and courts have no power in such cases to intervene either for the pro- tection of a foreign citizen or for the punish- ment of his slayers. President McKinley then said: I earnestly recommend that the subject be taken up anew and acted upon during the present session. The necessity for some such provision abundantly appears. [65] THE UNITED STATES AND PEACE In his message of 1900 the same Presi- dent made another urgent recommenda- tion of the same kind. President Roosevelt, in his annual message of December, 1906, in dealing with our relations with Japan, which were then of much public concern, said: One of the great embarrassments attend- ing the performance of our international obligations is the fact that the statutes of the United States are entirely inadequate. They fail to give to the national government sufficiently ample power, through United States courts and by the use of the army and navy, to protect aliens in the rights se- cured to them under solemn treaties which are the law of the land. I, therefore, ear- nestly recommend that the criminal and civil statutes of the United States be so amended and added to as to enable the President, act- ing for the United States Government, which is responsible in our international relations, to enforce the rights of ahens under treaties. There should be no particle of doubt as to the power of the national government com- pletely to perform and enforce its own obhga- tions to other nations. The mob of a single [66] ALIENS AND THEIR TREATY RIGHTS city may at any time perform acts of law- less violence against some class of foreigners which would plunge us into war. That city by itself would be powerless to make defense against the foreign power thus assaulted, and if independent of this government it would never venture to perform or permit the per- formance of the acts complained of. The entire power and the whole duty to protect the offending city or the offending commu- nity lies in the hands of the United States Government. It is unthinkable that we should continue a policy under which a given locality may be allowed to commit a crime against a friendly nation, and the United States Government limited, not to preventing the commission of the crime, but, in the last resort, to defending the people who have committed it against the consequences of their own wrong-doing. And in my Inaugural address, March 4, 1909, I brought the subject to the at- tention of Congress as strongly as I could, as follows: By proper legislation we may, and ought to, place in the hands of the federal execu- tive the means of enforcing the treaty rights [67] THE UNITED STATES AND PEACE of such aliens in the courts of the Federal Gov- ernment. It puts our government in a pu- sillanimous position to make definite engage- ments to protect aliens and then to excuse the failure to perform those engagements by an explanation that the duty to keep them is in States or cities, not within our control. If we would promise we must put ourselves in a position to perform our promise. We cannot permit the possible failure of justice, due to local prejudice in any State or mu- nicipal government, to expose us to the risk of a war which might be avoided if Federal jurisdiction was asserted by suitable legisla- tion by Congress and carried out by proper proceedings instituted by the executive in the courts of the national government. These citations would seem to refute any suggestion that those having oflBicial responsibility for our foreign relations have not realized the crying need for such legislation. The committee's sixth objection was that upon this basis all complaints aris- ing out of such cases have been settled through the ordinary diplomatic chan- [68] ALIENS AND THEIR TREATY RIGHTS nels and without any loss of self-respect to our government That is a matter of opinion. If one can judge from the communications from some of the secretaries of state to Con- gress and the messages of the Presidents just quoted, they feel very deeply the loss of self-respect that their enforced attitude and their inability to take ac- tion involves. Indeed, it is impossible to explain the payment by the Con- gress of the United States, on the rec- ommendation by the executive, of an indemnity in every case of these interna- tional outrages, unless there has been a real feeling on the part of the authorities of this government that we are at fault and that we intend to do something to save, as much as possible, the blame that is properly chargeable to us and our gov- ernment. The position of the govern- ment usually is that we do not owe any- thing as a matter of right. If so, and [69] THE UNITED STATES AND PEACE if it is sound doctrine that we must treat equally the citizens of our own country and citizens of a foreign country, why should we discriminate and pay an in- demnity to the foreign citizens or sub- jects who were injured or killed and not pay a similar indemnity in cases of lynch- ings of our own citizens? Our position and our action are not consistent and the reason why they are not consistent is be- cause we have made the promise and are not in a position to perform it, and there- fore we do the next best thing and try to salve the wounds of our sister nations by money payments. The committee's seventh objection was that the method of dealing with such cases in England, the other great com- mon-law country, is precisely analogous to our own. This is inaccurate because in England the initiation of the administration of justice, the detection of criminals, and [70] ALIENS AND THEIR TREATY RIGHTS the control of their prosecution is with the law officers of the crown. Then the learned committeemen went into a consideration of the possible anom- alies that would arise were felonious as- saults upon foreign subjects or citizens made a federal offence. It was said that it might involve double jeopardy. Well, there are a great many instances in which just such double jeopardy, if it can be called such, occurs in respect of acts that constitute an offence against both State and Federal sovereignties. In view of the fact that such offences are never brought to trial in a State, much less to conviction, the practical danger of double jeopardy, if it be such, is most remote. Then it is said that it will produce great confusion because there are so many aliens in this country that the assaults upon whom would crowd the Federal courts and introduce a deplorable delay. Even if there were some delay in fi- [71] THE UNITED STATES AND PEACE nally disposing of such cases, their ener- getic initiation is much to be preferred to that kind of despatch of the business in State courts which results in a report of the coroner and grand jury that the perpe- trators are unknown. Nor is it true that such cases would clog the Federal courts. Those courts can take care of many more criminal cases to-day than in 1891, and the discretion of the attorney-general or the prosecuting oflScer of the Federal Gov- ernment can well be trusted to leave to the jurisdiction of the State courts those crimes of violence against aliens that are in ordinary course and do not really in- volve race or national feehng or interna- tional complications. There are many classes of offences cognizable in both Fed- eral and State jurisdictions in which such comity of arrangement exists and is sat- isfactory in its operation. But it is suggested that in some way or other we are putting the foreigners [ n 1 ALIENS AND THEIR TREATY RIGHTS into a privileged class by providing for their protection by the United States courts and United States officers. Don't we do so by paying indemnities? But, more than this, the suggestion is be- side the mark. Criminals have no vested rights to trial in a jurisdiction where con- viction is impossible, or to object to a jurisdiction which is likely to convict them when they assault those whom the pUghted hospitality of the nation ought to protect. We are not putting the vic- tims in a privileged class solely or chiefly for the purpose of giving them any bene- fit, but rather for the purpose of protect- ing the Federal Government from just complaint by a sister nation and from being possibly involved in war by the lawlessness and selfishness of local com- munities. The reasons of legislative policy ad- vanced by the committee against the bill were thus, in the highest degree, techni- [73] THE UNITED STATES AND PEACE cal and entirely without weight, and the lamentable occurrences since their report emphasize their error. Finally, the committee intimated that such legislation as proposed would be in violation of the Constitution. They do not argue this out. They only suggest that it would be an invasion of the police power of the States, and they assume a construction of the Constitution that would have done in the days of Chief Justice Taney and the strict construction period of the Supreme Court before the war. They ignore a specific declaration by the Supreme Court that such legislation would be valid and a long series of cases by that tribunal which by analogy leave not the slightest doubt of the power of the gov- ernment not only to assume such judi- cial jurisdiction after the ofifence, but also to take preventive executive mea- sures before the ofifence to stop such out- rages. [74] r ALIENS AND THEIR TREATY RIGHTS The bill proposed to give jurisdiction of such cases to the federal courts is as follows: Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, that any act committed in any state or territory of the United States in violation of the rights of a citizen or subject of a foreign country secured to such citizen or subject by treaty between the United States and such foreign country, which act constitutes a crime under the laws of such state or territory, shall constitute a like crime against the peace and dignity of the United States, punishable in like manner as in the courts of said state or territory, and within the period limited by the laws of such state or territory, and may be prosecuted in the courts of the United States, and, upon conviction, the sentence executed in like manner as sentences upon convictions for crimes under the laws of the United States. The question of the validity of this proposed legislation under the Consti- tution involves a consideration of the treaty-making power of the Federal [75] THE UNITED STATES AND PEACE Government and the powers necessarily resultant from that and incident to it. The treaty-making power of the United States is the widest power that it has. The executive power in our domestic field of government is divided between the general government and the State governments, between the President and other executive oflacers of the United States, on the one hand, and State gov- ernors and other executive officers of the States on the other. The legislative pow- er is divided between Congress and the legislatures of the States. The judicial power is divided between the Federal courts that exercise the jurisdiction ex- tended to them by the Federal Constitu- tion and laws and the courts of the States. But all governmental power exercised by the country in dealing with foreign gov- ernments is exercised by the Federal Gov- ernment alone, and the only limitation upon that power is that in treaty making [76] ALIENS AND THEIR TREATY RIGHTS the President and the Senate shall not violate any prohibition of the Constitu- tion and shall exercise that power within the hmits which international practice normally imposes as to the subjects to be included in a treaty. This wide and exclusive power of the central govern- ment in treaty making is easily to be inferred from the fact that by the Con- stitution the States are expressly forbid- den to enter into any treaty, alHance, or confederation, to grant letters of marque and reprisal, unless Congress consents, to lay any duty of tonnage, to keep troops or ships of war, in time of peace, to enter into any agreement or com- pact with another State or with a for- eign power, or to engage in war unless invaded; while the general government is expressly empowered to make trea- ties, to regulate commerce with foreign nations, to establish a uniform rule of naturalization, to define and punish pira- [77] THE UNITED STATES AND PEACE cies and felonies committed on the high seas, and offences against the law of nations, to declare war, grant letters of marque and reprisal, and make rules con- cerning captures on land or water, to raise and support armies, to provide and maintain a navy, to make rules for the government and regulation of the land and naval forces, to provide for the call- ing forth the militia to repel invasions, to appoint ambassadors and other pub- lic ministers and consuls, and to adjudi- cate causes arising under treaties and all cases affecting ambassadors, other public ministers, and consuls, causes of admi- ralty and maritime jurisdiction, and cases between a State or the citizens thereof, and foreign states, citizens, and subjects. And, further than this, the treaties made by the authority of the United States are expressly declared to be the supreme law of the land and the judges in every State are to be bound thereby, anything in the [78] ALIENS AND THEIR TREATY RIGHTS Constitution or the laws of any State to the contrary notwithstanding. It would be difficult to make clearer the intention of the framers of the Con- stitution and the people who ratified it to give over to the general government the executive power to control foreign affairs and to give to the treaty-making power as wide a scope as treaties between in- dependent governments are wont to have. As already said, one of the most com- mon provisions in treaties between civi- lized countries is that which reciprocally binds each of the parties to give an op- portunity for peaceful residence and pur- suit of business in its territory to the citi- zens or subjects of the other. Unlike treaties in most countries, a treaty made by the United States has a double aspect. It is not only a contract between the two countries, as it is in England and in other jurisdictions. It is that and more, because in so far as its [79] THE UNITED STATES AND PEACE provisions in their nature can have oper- ation in the United States as municipal law, they are statutes. They are equiv- alent to a law passed by Congress, and as such they repeal a previous inconsistent law of Congress, on the one hand, and can be repealed by a subsequent incon- sistent law of Congress on the other. It follows, therefore, that ahens living in this country, whose sovereign has made a treaty with the United States in which the United States guarantees protection to life and property to such aliens during their residence within the jurisdiction of the United States, have a right under the federal Constitution and law to be secure against any invasion of their peaceable residence and the holding of property. Under the eighteenth clause of Section VIII of Article I of the Constitution, Congress has power to make all laws which shall be necessary and proper for carrying into execution all powers vested [80] ALIENS AND THEIR TREATY RIGHTS by this Constitution in the government of the United States. It needs no strain- ing of logic, but only the use of the rea- soning pursued by the Supreme Court in hundreds of similar cases, to deduce the power of Congress under that clause to enact legislation to carry out and execute such an agreement by the United States to protect aliens from lawless violence. Therefore, it would be entirely compe- tent for Congress to pass the bill I have quoted above. Now, if the committee of the Bar Asso- ciation, to which I have referred, had not expressed some doubts as to the power of Congress to pass such a law, I would not have thought it necessary to argue it. The power has been expressly af- firmed by the Supreme Court. The case of Baldwin vs. Franks, 120 U. S. 678, involved the punishment of a man for using lawless violence against Chinese aliens resident in California, driving them [81] THE UNITED STATES AND PEACE from their residence and depriving them of their legitimate business, contrary to a treaty made between the United States and China in 1881. The Supreme Court said: That the treaty-making power has been surrendered by the States and given to the United States is unquestionable. It is true, also, that the treaties made by the United States and in force are part of the supreme law of the land, and that they are as binding within the territorial limits of the States as they are elsewhere throughout the dominion of the United States. The court then recites the clause of the treaty and continues: That the United States have power under the Constitution to provide for the punish- ment of those who are guilty of depriving Chinese subjects of any of the rights, privi- leges, immunities, or exemptions guaranteed to them by this treaty, we do not doubt. What we have to decide, under the questions certified here from the court below, is whether this has been done by the sections of the re- vised statutes specially referred to. [82] ALIENS AND THEIR TREATY RIGHTS But they found no law on the statute book with language which embraced such offences. This decision was rendered in 1887 and the report of the Bar Association committee was in 1891, and the report, so far as I can find, does not mention the decision of the court in Baldwin vs. Franks. As the committee of the Bar Association had no jurisdiction to reverse the views of the Supreme Court, I assume that we can treat the constitutional con- struction declared by the Supreme Court as still in force. But such punishment of crime in the federal courts and by the authority of the United States against those who vio- late the treaty rights of aliens is not the only thing that can be done. One of the ideas that it took a long time to get into the heads of strict constructionists of the Constitution was that there is not only the peace of a State, but there is [83] THE UNITED STATES AND PEACE also, on the same soil, the peace of the United States; that while the breach of State law by violence is a breach of the peace of the State, breach of Federal law by violence is a breach of the peace of the United States. In the case of Ex Parte Siebold, 100 U. S. 371-394, the court was considering an objection, very similar to the one made here, against a law providing for the pro- tection of a citizen of a State in his rights under the Federal Constitution against assault. They said: It is argued that the preservation of peace and good order in society is not within the powers confided to the government of the United States, but belongs exclusively to the States. Here again we are met with the theory that the government of the United States does not rest upon the soil and ter- ritory of the country. We think that this theory is founded on an entire misconception of the nature and powers of that govern- ment. We hold it to be an incontrovertible principle that the government of the United States may, by means of physical force, exer- [84] ALIENS AND THEIR TREATY RIGHTS cised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessa- rily involves the power to command obedi- ence to its law, and hence the power to keep the peace to that extent. In the Debs case, reported in 158 U. S. 564, Mr. Justice Brewer said: The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care. ... If the emergency arises, the army of the nation, and all its militia, are at the service of the nation to compel obedience to its laws. This language has exact application to the protection of the treaty rights of aliens. Therefore, not only ought the bill to be passed which I have read above, providing for a punishment of lawless violence directed against the rights and welfare of aliens guaranteed in a treaty of the United States, but express statu- tory provision ought also to be made en- [85] THE UNITED STATES AND PEACE abling the President, in his discretion, to act directly, and without reference to State action, in protection of such aliens when their safety and peaceable residence are threatened. Such executive power would doubtless be implied if Federal court jurisdiction were given, but it would be greatly better to make it ex- press. Then the President could move at once to the protection of aliens living in settlements where mobs threaten attack, and practical results might be expected, making the protection of the United States a real thing. Then the secretary of state could look in the face the ambassador of the country whose subjects or citizens are threatened with a gross violation of their treaty rights, and point to the effective measures of protection taken to vindi- cate the honor and the plighted faith of the United States. Now, if such legislation is so plainly needed, why has it not been enacted .^^ [86] ALIENS AND THEIR TREATY RIGHTS This is a hard question for me to answer except by suggesting that aUens are not voters and their rights are not a poht- ical issue. Both parties are at fault in this matter. When I was President, as quoted above, I urged the adoption of such legislation, and then took such steps as I could in other ways to secure its en- actment. At my suggestion, Mr. Swagar Sherley, a leading Democratic member of the House, from Louisville, Kentucky, attempted to introduce such legislation into the revision of the judicial code, but objection was made on the ground that it would introduce new legislation into a code that should be only a revision of existing legislation. The separate bill for the purpose which was introduced, I could not, in the pressure of other legis- lation, induce either House to take up. There seemed to be the strong opposi- tion not only of Democrats from the South but of Republicans from the far [87] THE UNITED STATES AND PEACE West, and this prevented its consider- ation. May we, therefore, not ask from this administration, in the course of which there has been exhibited, under the ad- mirable leadership of the President, such wonderful party discipline in the pas- sage of legislation, that action be taken on this important matter? The negotiations with Japan would, I am sure, be greatly assisted by giving such an earnest of the sincerity of our government in protecting her people in the rights we assure them. If it be said that the party in power is traditionally opposed to giving the Federal Government more functions and to concentration of power in Washing- ton, we may well urge that when the party in power has swallowed camels in the passage of a law giving the largest government control of banking and cur- rency known in our history, and in pro- jecting a law vesting the widest Federal [88] ALIENS AND THEIR TREATY RIGHTS power in respect to corporations doing f interstate business, and another looking j to Federal regulation of presidential pri-/ maries, the party leaders should not strain f at the gnat of Federal performance of^ Federal promises, even if it may involve the transfer to the jurisdiction of Federal ( courts of a comparatively few cases which are now in theory triable in State courts / but in fact are never tried there. 89 ] CHAPTER III ARBITRATION TREATIES THAT MEAN SOMETHING The war between Italy and Tripoli, the war in China, the war between the Bal- kan States and Turkey and then the sub- sequent war between the Balkan States themselves, the war in Haiti, and finally the war in Mexico, all are contemporary and convincing evidence that the dawn of universal peace is not immediately at hand. It is true that these are nearly all of them civil wars or revolutions, and that the restoration of peace in most of them requires only the estab- Ushment of stable governments. It is very certain that in such cases, treaties of arbitration, whatever their terms and [ 90 ] ARBITRATION TREATIES however solemnly entered into, are not a practical means of settlement. Many countries in the last century suffered from the disease of revolution. Looking back over half a century, we can properly say that in the countries subject to such out- breaks there has been great improvement; and, while Mexico shows retrogression in this regard, most of the South American countries have grown stronger in the maintenance of law and order and the preservation of constituted authority. I think it is our duty, as a great, strong, powerful nation, when we can easily do so without involving ourselves in costly or dangerous war, to promote the cause of peace and order in any of our less stable neighbors through treaty arrange- ments with them, and this wholly with- out regard to the Monroe Doctrine. We have had such an opportunity with Nic- aragua, with Honduras, with Santo Do- mingo, and we may possibly have the [91] THE UNITED STATES AND PEACE same kind of an opportunity with other states similarly conditioned. They all owe what to them is a large amount of money to European creditors. Their creditors are willing to scale down the debts, which in justice ought to be sub- stantially scaled, if they can be given greater security. The governments of these countries, confident that we are disinterested in the matter, have mani- fested a desire to have American bankers finance the readjustment of their obliga- tions if our government will only consent to a treaty in which there is reserved to us the right to nominate collectors of their customs revenues and to protect such collectors against lawless violence. The amount of force necessary to ex- tend this protection is almost negligible. Indeed, it is not more than the show of force that we usually make to protect American interests in the breaking out of a revolution in these countries. I never [ 92 ] ARBITRATION TREATIES have been able to understand the argu- ment against such treaties. They do not involve the Monroe Doctrine at all. They merely involve the obligation of a strong and powerful neighbor to help a weak one. They are in the interest of peace and good order and make for the just settlement of debts. In some way or other, such treaties are supposed to be a recognition of the right of European governments to collect the debts of their nationals by force; but I am unable to see why. They constitute merely a friendly act, and furnish a means to these governments of settling their past obligations and obtaining a much-needed sum of money to be expended in helping their people in education and in the de- velopment of their rich natural resources. In Central America the difficulty has been that a dictator in one republic has intrigued against his neighbors. He be- came a disturbing factor for^all the rest. [93] THE UNITED STATES AND PEACE The treaties with Honduras and Nica- ragua would give the United States an opportunity to exert a direct influence to prevent the consummation of such in- trigues and to maintain a peace in that region of North America essential to the happiness of its people. Their trade is naturally of great value to us, and would be of much greater value if the arts of peace were pursued. But the subject of this chapter is not that of specific treaties. It is the ques- tion of the relation of the Senate to gen- eral arbitration treaties. I understand a general arbitration treaty to mean a treaty by which the nations who are parties to it agree that they will in the future submit to arbitration all future differences which come within a class of issues defined in the treaty. What I propose to discuss here is whether the President and the Senate have the power to make such treaties in a form that will [ 94 ] ARBITRATION TREATIES really bind them and the government to anything substantial. In Mr. Roosevelt's term there were a number of arbitration treaties negotiated and signed by Mr. Hay and submitted to the Senate, in which it was agreed between the United States and the other treaty-making party that all questions of a legal nature, not including those of national honor or vital interest, would be submitted to The Hague tribunal, and that when any difference arose a spe- cific agreement of submission of the issue would be entered into. The Senate in- sisted that for the words "specific agree- ment," "treaty" should be substituted, in order that no specific agreement could be submitted under the treaty except with the advice and consent of the Sen- ate. Mr. Roosevelt declined to ratify treaties with this limitation, on the ground that the treaty thus limited did not bring the country any nearer to arbitration [95] THE UNITED STATES AND PEACE. than if no treaty was made. On the other hand, the Senate insisted that it had no power to ratify such a treaty because it would be an unlawful delega- tion to the President alone of the treaty- making power. The treaties thus drawn either at- tempted to describe a class of questions which the government bound itself to arbitrate or they did not. If not, then they were not treaties at all, and there was no occasion to discuss what the Constitution required with reference to treaties. In that view they were a mere general declaratory expression of a hope that the parties might make a treaty in the future. If, however, the treaties did define a class of issues which the United States agreed to arbitrate, then whether an issue thereafter arising came within the class or not was a matter of construc- tion of the treaty. The agreement would then be nothing more than the framing [96] ARBITRATION TREATIES of the specific issue which came within the general class as defined. It is a well- understood incident of the treaty-making power that in a treaty there may be re- served, without an unlawful delegation of power, to the President, or to some other agent, the power to execute its provisions. As the Supreme Court said in Tong Yue Ting vs. the United States, 149 U. S. 698 and 714: It is no new thing for the law-making power, acting either through treaties made by the President and the Senate, or by the more common methods of the acts of Con- gress, to submit the decision of questions not necessarily of judicial cognizance either to the final determination of executive oflScers, or to the decisions of such officers in the first instance, with such opportunity for ju- dicial review of their action as Congress may see fit to authorize and permit. It was, therefore, entirely within the authority of the treaty-making power, after having laid down a general rule of jurisdiction fixing a definite class of [97] THE UNITED STATES AND PEACE questions which might be arbitrated be- fore the stipulated court, to leave the formulation of the specific issue coming within that class for the executive. The police power of Congress to regu- late the rates on interstate commerce railroads is exercised by laying down some very general rules that rates shall be reasonable, and shall not be unduly discriminatory, and by then giving to the Interstate Commerce Commission the power under those general rules to decide what rates are unreasonable or discriminatory, and indeed to fix rates themselves. In the argument by senators against the power of the Senate to agree that the President alone might formulate the specific agreement, much reliance was placed on the decision of the Supreme Court in Field against Clark, 145 U. S. In that case the Supreme Court merely laid down the general rule that Congress [98] ARBITRATION TREATIES could not delegate legislative power, and then held valid a provision in the Mc- Kinley tariff act which authorized the President to apply one or another set of duties to the imports from a foreign country as he decided whether the cus- toms laws of that country were "recip- rocally unreasonable" toward us. The case, instead of helping the contention of the Senate, made strongly for the view that giving the President the power to make the specific agreement was not an unlawful delegation. The Hay treaties of general arbitration, as I have said, excepted from the issues of a legal nature to be arbitrated '^ ques- tions of national honor and vital inter- est." Who could tell what were not questions within these exceptions? It left a discretion in each party to insist that any question concerned its honor or vital interest. Lord Russell, when first approached as to the possibility of arbi- [99] THE UNITED STATES AND PEACE trating the issue growing out of the Ala- bama claims and the mulcting of Great Britain for her failure to perform her international duties, said that she could not admit that she had ever failed in that regard, and that it was a question of national honor which she would not submit to arbitration. And yet she did, and not only did she submit it to arbitra- tion, but she paid the judgment of $15,- 500,000 rendered against her by an in- ternational tribunal. The exceptions of the Hay treaties were so broad and general that the action of the Senate in declining to allow the President to make the specific agree- ment under them could be strongly de- fended on the ground that the treaties did not suflBiciently define any class of questions and therefore that the specific agreement would be the only real treaty. A treaty of arbitration is for the pur- pose not only of settHng disputes, but [ 100] AEBITRATION TREATIES its main function is to prevent those disputes from resulting in war. A coun- try is not likely to go to war except on an issue that involves its honor or its vital interest. Therefore, a treaty that excludes such questions from arbitration is not a treaty that covers the critical issues from which wars spring. I there- fore determined, if I could, to negotiate a treaty that would leave out those excep- tions and include all questions that could be arbitrated. There are many questions between na- tions that concern the welfare of both, with respect to which, under any system of international justice, a nation must have absolute discretion and control of its own conduct. Take, for instance, the question whether England shall take part in our Panama Exposition. That may cause bad feeling in California or in this country generally, but no court of arbi- tration would make a ruling that En- [101] THE UNITED STATES AND PEACE gland was obliged to take part in our exposition. That is not a justiciable ques- tion. If, however, England had agreed by treaty to take part in our exposition, then a right would be created by contract, and it would properly become the sub- ject of arbitration and decision. You cannot bring all subjects of dif- ference between individuals into a mu- nicipal court. A man may be unneigh- borly; he may not call on his neighbor, he may notify his neighbor that he does not propose to have the latter' s children come into his place; he may do a lot of un- kind things that arouse the indignation of his neighbor and show he is a very mean man. But these do not give any cause for a suit. One cannot compel his neigh- bor to be generous and good and courte- ous by a lawsuit. In other words, there is a field into which courts of justice cannot enter, whether they be municipal courts in a State, or arbitral courts be- [ 102 ] ARBITRATION TREATIES tween nations, and that distinction must be just as clear in an international court as in one of our domestic tribunals. In the formulation of our treaties it was necessary to hit upon some term which would define, as a class, those causes of difference between nations that would constitute, under the principles of inter- national law, an infringement of the le- gal rights of another nation analogous to rights remediable in municipal courts of justice between individuals. The de- scription must exclude those obligations of courtesy and good-will that are en- forced only by the sanction of a national conscience or by the influence of inter- national public opinion, or by what Lord Haldane has referred to as Sittlichkeit, or international "Good Form." The anal- ogy between matters of domestic judicial cognizance and those proper to be con- sidered in international law tribunals is quite close. Mr. Knox found a phrase [ 103] THE UNITED STATES AND PEACE that seemed to me to be most happy in the description of the character of ques- tions that should be arbitrated between the United States and other estabHshed governments if negotiation failed. He found it in an opinion of Chief Justice Fuller in a case in which the Supreme Court was acting as a quasi-international tribunal. One of the great examples of successful international arbitration is the arrangement for the jurisdiction of the Supreme Court under our Constitution in settling the controversies between sovereign States. It furnishes a model that in future generations will, I hope, prove to be useful in the formation of a general arbitral court for all the stable nations of the world. This case to which I refer was a controversy be- tween Kansas and Colorado as to the water-rights of the two States and their respective residents and landowners in a stream which began in one State and [ 104 ] ARBITRATION TREATIES ran into the other. The Chief Justice, speaking of the effect of the Constitution, said: Undoubtedly, as remarked by Mr. Justice Bradley in Hans vs. Louisiana, 134 U. S. 1, 15, the Constitution made some things jus- tidahle, "which were not known as such at the common law; such, for example, as con- troversies between States as to boundary lines, and other questions admitting of judi- cial solution." And as the remedies resorted to by independent States for the determina- tion of controversies raised by collision be- tween them were withdrawn from the States by the Constitution, a wide range of matters, susceptible of adjustment, and not purely political in their nature, was made justiciable by that instrument. 185 U. S. 125, 141. Mr. Knox used in the treaties the word justiciable to describe the differ- ences which the parties bound themselves to arbitrate. Those controversies only would come within the term which were just cause for reprisal by the complain- ing State according to international law. That law grants a reprisal only when [ 105 ] THE UNITED STATES AND PEACE a positive wrong has been inflicted or rights stricti juris are withheld. The rule which controls foreign and independent states in their relations to each other is that the primary and absolute right of a state is seK-preservation. The im- provement of her revenues, arts, agricul- ture, and commerce are incontrovertible rights of sovereignty. She has domin- ion over all things within her territory, including all bodies of water, standing or running, within her boundary -line. Her moral obligation to observe the de- mands of comity, that is, of good neigh- borly feeling, cannot be made the sub- ject of legal controversy. In the light of such limitations fully recognized in inter- national law, the definition of those is- sues intended to be arbitrated is easily applied. The language of the treaties is: All differences . . . relating to interna- tional matters in which the high contracting parties are concerned by virtue of a claim of [ 106 ] AEBITRATION TREATIES right made by one against the other under treaty or otherwise, and which are justiciable in their nature by reason of being susceptible of decision by the application of the principles of law or equity. First, the differences must relate to in- ternational matters; second, they arise upon a claim of right, i, e,, a right under a treaty or under principles of interna- tional law of one against the other; third, they must be justiciable, i, e., capable of judicial solution by application of the principles of law or equity. Those prin- ciples, of course, are principles of interna- tional law or equity. As this phrase is used not only in an English treaty but in a French treaty, the words are not to be confined to the technical meaning of law and equity as those words are under- stood in the jurisprudence of England and the United States. Still, the terms law and equity have a similar significa- tion in many countries. Ancient sys- tems of law grown rigid have been modi- [ 107] THE UNITED STATES AND PEACE fied by applying more liberal principles in reaching justice. Equity has amelio- rated and mitigated the severity of the law. The two words used together, there- fore, were intended to comprehend all the rules of international law affecting the rights and duties of nations toward each other which are not mere rules of comity but are positive and may be properly enforced by judicial action. The first clause of the Knox treaties provides that such questions shall be submitted to the Permanent Court of Arbitration established at The Hague, or to some other tribunal agreed to by the parties by special agreement, which shall be made on the part of the United States by the President of the United States, by and with the advice and consent of the Senate. The second clause provides for the appointment of a Joint High Com- mission of Inquiry to investigate any controversy between the two parties, [ 108] ARBITRATION TREATIES whether within or without Article I, which investigation may be postponed for a year by either party in order to give an opportunity for negotiation and settlement. The Joint High Commission is to be constituted by each party's des- ignating th;*ee of its own nationals to sit therein, with authority to vary the char- acter of its appointees. The action of the Joint High Commission is to be re- garded merely as advisory except in one case. If either party contends that the diflference is not arbitrable by the terms of the treaty, the Joint High Commis- sion, by a vote of five to one, may de- cide that it is arbitrable within the treaty, and the decision is to bind the parties. Thereafter, the arbitration is to proceed before The Hague or other tri- bunal as provided in the treaty. Good faith under the treaty would require, in the event of such a decision, that the President and the Senate make the spe- [ 109] THE UNITED STATES AND PEACE cific agreement required in the first sec- tion and proceed to carry out the arbitra- tion. Of course it would be within the power of the Senate, as, indeed, it would be within the power of the President, to decline to make such a specific agree- ment and thus to break their obligation and that of their government. I suggested to Mr. Knox a form of treaty under which either party might submit to the permanent court at The Hague its complaint against the other, and the court after objection and hearing i should first decide whether the complaint constituted an arbitrable case within the first clause of the section, and if it so found, it should then proceed to hear and decide the issue made. But Mr. Knox felt that the time had not arrived when so radical a proposition as that would be approved by the Senate or possibly by the country, and therefore he suggested a preliminary decision as to jurisdiction [110] ARBITRATION TREATIES by this Joint High Commission to be composed of three Americans and three Enghshmen, or three Americans and three Frenchmen, as the case might be. I re- garded this as a very mild provision, be- cause at least two Americans out of three must concur in holding that the differ- ence in question was within the descrip- tion of the general class of questions agreed to be arbitrated before the judg- ment could be binding on both parties. The suggestion of possible danger of in- justice to the interests of the United States arising from the decision by a majority of five to one of a tribunal composed haK of Americans and half of the nationals of the other treaty-making power is chimerical and imaginary. Such objections grow out of the un- willingness of the men who suggest them to enter into any arbitration by contract or treaty in advance of the happening of the event which gives rise to the dif- [111] THE UNITED STATES AND PEACE ference. Consciously or unconsciously, they are not sufficiently in favor of a ju- dicial decision of questions between na- tions to be willing to lay down a general law for arbitration or to make a general classification of subjects for arbitration and abide by it. They insist on knowing all the circumstances with reference to a particular issue before they are will- ing to bind themselves to arbitrate it at all. As in the consideration of the Hay treaties, so here it was argued that the President and the Senate would unlaw- fully delegate their treaty-making power if they agreed that a tribunal should finally adjudge that a specific difiference, subsequently arising, was in the class of differences covered by the treaty. It is very difficult to argue this question be- cause the answer to it is so plain and ob- vious. The question whether a specific case arising after the general treaty is [ 112 ] ARBITRATION TREATIES made comes within the language of the treaty is a question of the construction of the treaty and its appUcation to events subsequently arising. Construction of a treaty is the issue more frequently arbi- trated between nations than any other. It is true that the question here is one of jurisdiction rather than one upon the merits of the controversy, but both arise in the construction of a treaty and both, therefore, are the normal subjects of ar- bitration. To leave a question arising in our foreign relations to arbitration is, of course, not a delegation of power at all. Delegated power is conferred on an agent. The tribunal does not act as agent but as a court deriving its power not from either party but from the agree- ment of both. The view that makes a submission to a tribunal a delegation of power to an agent would prevent the President and Senate from agreeing to arbitrate anything at all. And yet we [ 113] THE UNITED STATES AND PEACE have made arbitration treaties since the Constitution was adopted and before. The rightfulness of the power exercised under these Knox treaties to submit the question of jurisdiction to the arbitral tribunal is much clearer than was the power of the Senate to consent that the President might make the specific agree- ment in the Hay treaties; and this for two reasons; first, because in the Knox treaties the classification is one of clear definition as it was not in the Hay trea- ties; second, in the Hay treaties the President was an executive agent and the question of unlawful delegation to him alone of the treaty-making power fairly arose. But here the objection is a plain confusion of conferring power on an agent with submitting a judicial issue to a court. The only logical position that could defeat the right of the Presi- dent and the Senate to agree to submit to a tribunal the question whether a [ 114] ARBITRATION TREATIES subsequent difference comes within the general but definite classification of ar- bitrable issues in a general arbitration treaty is the utterly untenable one that the President and the Senate have no right to submit to an international tri- bunal at all the decision of those inter- national matters that the President and the Senate under the Constitution are given power to deal with in our interna- tional relations. Nevertheless, the Senate struck out the provision for a decision by the Joint High Commission. I considered this proposition the most important feature of the treaty, and I did so because I felt that we had reached a time in the making of promissory treaties of arbitration when they should mean something. The Sen- ate halted just at the point where a pos- sible and real obligation might be created. I do not wish to minimize the importance of general expressions of good-will and [115] THE UNITED STATES AND PEACE general declarations of willingness to set- tle everything without war, but the long list of treaties that mean but little can now hardly be made longer, for they in- clude substantially all the countries of the world. The next step is to include something that really binds somebody in a treaty for future arbitration. The treaties of arbitration are not going to accomplish substantial progress unless we enter into them with a willingness and a consciousness that they may involve us in decisions to our detriment. We can- not win every case. Nations are like individuals; they are not always right, even though they think they are, and if arbitration is to accomplish anything, we must be willing to lose and abide by the loss. If we are to establish real ar- bitral courts which shall be useful as a permanent method of settling interna- tional disputes, we must agree in advance what the jurisdiction of those courts shall [ 116] ARBITRATION TREATIES be, and then abide by their holding as to that jurisdiction and perform the judg- ments that are made against us. But if we assume that it is dangerous for us to consent to go into any arbitration, lest the court make gross errors in interna- tional law and may decide contrary to the principles of the law as we entertain them, then let us take some other method of settling international disputes. The Senate, in its conditional concur- rence in the arbitration treaties prepared by Secretary Knox, made certain reser- vations. The first limitation was that they should not authorize the submission to arbitration of any question affecting the admission of aliens into the United States. If there are not treaties on the subject, the rule of international law is clear and specific that no aliens can be admitted into a country without the con- sent of its government, and that no other nation can justly claim the right to have [ in ] THE UNITED STATES AND PEACE her nationals admitted to such territory. Why is it necessary to insert in a treaty of arbitration the principles of interna- tional law which must necessarily guide the action of an arbitral tribunal? If so, then every treaty must be an interna- tional code. But if the exception meant to exclude every question under a treaty affecting the admission of aliens, as it probably did, then it was most indefen- sible. If we have agreed to let in En- glishmen or Frenchmen or Japanese or Chinese by treaty, on what ground ought we to evade or avoid the effect of the plighted faith of the nation to do so? Why should we be afraid to have our promises in this regard construed by an impartial tribunal? In other words, is not this a reservation of a right to vio- late our own plighted faith imposed by the Senate as a condition of its concur- rence in the treaties? Was not the char- acter of this condition a sufficient reason [118] ARBITRATION TREATIES for the executive to refuse to ask the other powers to consent to it? The second condition of exclusion is very Uke the first. It eHminates from arbitration any question of the admis- sion of ahens to the educational institu- tions of the several States. We have made treaties in which we have agreed that the children of aliens resident in this country may enjoy the educational advantages of the children of the citizens of the States in which they live. Now, this condition was an attempt to reserve from arbitration the judgment of a high tribunal upon the question whether we should comply with our treaty obliga- tions in that regard. Why shouldn't we? If we make the treaty, why shouldn't we fulfil it? What is the object of making a treaty if it is not to perform it? If there were not a treaty giving the right to the children of aliens to take advan- tage of our educational privileges, inter- [119] THE UNITED STATES AND PEACE national law would impose no obliga- tion on our government, or on the State governments either, to furnish such priv- ileges. The third exclusion was of any ques- tion of "the territorial integrity of the several States or of the United States." Well, suppose a question of boundary had arisen and the issue was whether land claimed by a State or the United States under a previous treaty belonged to us or belonged to the other country, why should it not be made the subject of arbitration? Didn't we arbitrate the Alaska boundary .^^ If we have some- body else's land, if it does not belong to us and a correct construction of the treaty shows that it does not belong to us, what objection is there to our part- ing with it under a judgment of the court? The fourth class of questions excluded was of the alleged indebtedness or mon- [ 120 ] ARBITRATION TREATIES eyed obligation of any State of the United States. I agree that a sovereign State is not obUged to allow a suit against her- self by any citizen or any individual, and that immunity from such a suit is one of the attributes of sovereignty. But the very object of international arbitra- tions and of general treaties to provide them is to do away with such immu- nity as between the parties. The com- monest form of litigated questions in an international arbitration is a question of liability of a debt of one of the parties to the other. Why should the indebtedness of the separate States be excluded in an arbi- tration by the United States with for- eign countries? The United States is the representative of the States. Under the Constitution the United States acts for and represents the whole country, States and all. The Federal Government is the only one the other nations know. [ 121] THE UNITED STATES AND PEACE That was what our Constitution was in- tended to effect. If we are in favor of settUng controversies between sovereign- ties by arbitration, in order to avoid war, the only way we can make our States parties to such arbitration is through the National Government. It is said that the United States is not liable internationally for the debts of the States. That may or may not be true, but if it is not liable, then the arbitral tribunal may say so. If it is Uable in interna- tional law then it should pay the debts of the States and it would have a right of action against the States, which it might enforce because it has the right to sue a State. Why should the sovereign States of our nation be represented as complainants by our central government in arbitration and not be made defen- dants through the same representation .f* Even the Senate did not attempt to ex- clude debts of the United States from [ 122 1 ARBITRATION TREATIES such arbitration. Why should the debts of the States be excluded? Of course, the treaties only affected controversies thereafter arising, so that past indebted- ness was not included within their first clause. I am not at all sure that it would not be a very wholesome arrange- ment to fix some responsibility upon the States and to give them more motive than they have had in the past to avoid repudiation of their just obligations. The necessary exclusion of such indebtedness from questions that might be arbitrated seemed to me to be both unnecessary and improper. The final exclusion was that the sub- ject-matter of arbitration should not in- clude any question dependent upon or involving the maintenance of the tradi- tional attitude of the United States con- cerning American questions commonly described as the Monroe Doctrine or other purely governmental policy. John [ 123 ] THE UNITED STATES AND PEACE Bassett Moore, late counsellor to the De- partment of State, and an international lawyer of profound ability and acumen, pointed out that the Monroe Doctrine, or other governmental policy of like char- acter, could not be made the subject of arbitration under the general clause of justiciable questions to be settled on prin- ciples of law or equity, and that no ex- ception was necessary. I did not have the slightest objection, however, to in- cluding such a restriction in the ratifica- tion of the treaty, and, had the condi- tions been limited to it, I would have attempted to induce France and England to consent to it. They had consented to it in other treaties, and I presume they would have done so here. Had this been the only condition imposed by the Sen- ate, I believe the treaties might have gone through. Senator Root and Sen- ator Cullom urged the confirmation of the treaties with only this condition, and [ 124 ] ARBITRATION TREATIES Senator Burton was in favor of concur- ring in the treaties as they were presented, and so was Senator Raynor; but Sena- tor Lodge and Senator Bacon and the majority of the Committee on Foreign Relations took the view that in some way or other there was an unlawful delega- tion of the treaty-making power to a ju- dicial tribunal appointed to construe a treaty and determine its application to particular facts. A fair argument against the wisdom and justice of the conditions that the Senate of the United States insisted upon in its concurrence in the treaties is the fact that England and France imposed no such conditions, and their interests were just as much at stake as ours in the making and performance of th-e trea- ties. To this Senator Lodge answers that we have greatly more interests than they have to be affected by arbitration. I confess I do not understand the force f 125 ] THE UNITED STATES AND PEACE of his argument. The border between Canada and ourselves is one of four thousand miles, and there are just as many legal questions affecting Canada as the United States, and the questions that affect Canada affect Great Britain. We have many questions with France and with Great Britain directly. Indeed, we have as many with them as they have with us, and, if they are willing to submit matters to arbitration, why shouldn't we? With deference to those who oppose these treaties I must be allowed to say that the real reason for defeating them was an unwillingness to assent to the principle of arbitration without knowing something in advance of whether we were going to win or lose. That spirit is not one that will promote the cause of arbi- tration. I cannot say how much good the sign- ing of the treaties did. Had they gone [ 126 ] ARBITRATION TREATIES through, I beheve they would have been beneficial in the cause of peace. The agitation in their favor sowed some seed in the minds of the American people that may sprout and grow into useful plants; but, however this may be, those of us who believe in arbitration as the means of bringing about a general arbi- tral court which shall settle all issues between nations capable of judicial solu- tion must continue the struggle, because it is right and its success will measure the progress of civilization. I have been criticised for not going ahead with the treaty as provided by the Senate's proposed amendments, and I am quite willing to admit that there is room for discussion upon that point. I can only say why I did not. I was anx- ious to make a substantial step forward in the matter of arbitration treaties. I was anxious to give a model to the world of a treaty that meant something in the [ 127 1 THE UNITED STATES AND PEACE matter of arbitration. A treaty grid- ironed with such specific and numerous conditions as the Senate imposed, and emasculated by striking out its really binding feature, would not offer to the world such evidence of progress as to encourage the making of similar trea- ties between other countries. Of course, neither with England nor with France was there need for such a general arbitra- tion treaty. It is hardly conceivable, when we consider the respective relations between the two ©ountries and ourselves, that any difference could arise which would not be settled by arbitration. Therefore, the mere fact of making a treaty of arbitration with either had lit- tle practical or intrinsic importance upon the issues likely to arise between us and them. The treaties were important only as an encouragement to other nations in the settlement of theii- differences. Such a treaty, if really comprehensive, would [ 128 ] ARBITRATION TREATIES have been thus useful and influential. As mutilated by the Senate, it seemed to me it would not efifect any helpful result. The discussion by senators of this question shows that many of them thought that such a proposition as that which I submitted to the Senate would in some way minimize the importance of the Senate in treaty making. Every senator alluded to the fact that in the constitutional convention Mr. Madison proposed that the Senate should make the treaties of the government, but that ultimately it was thought better to give the President the initiation and require a concurrence of the Senate by two thirds in treaties. Now, I am the last one to seek to minimize the importance of the Senate in either the treaty-making power or as a co-ordinate branch of the legislature. I regard the Senate as one of the most important and valuable fea- [ 129 ] THE UNITED STATES AND PEACE tures of the government. With the ten- ure of six years for each senator, with the equal representation for the large and small States, it furnishes a check against too rapid and radical action. It has served the country well in times past, and will, I doubt not, continue to be of the utmost benefit in keeping the course of our government along safely progres- sive lines. What ought to be done by arbitration treaties is to bind the Presi- dent, the Senate, and the country to abide by the judgment of an impartial tribunal in as many cases of interna- tional difference as possible. Mr. Bryan is now engaged in making a number of treaties which will facili- tate inquiry and investigation and ad- visory report into differences of nations before war comes, and which are so framed as to delay hostilities though they do not provide for arbitration. I am glad that such treaties are being made. I think [ 130 ] ARBITRATION TREATIES that the preparation of such a report will furnish useful delay while it will stimulate the negotiation of a settlement. Of course, the step is a small one, but as far as it goes it helps. The truth is that the pro- vision with respect to the postponement of a year in the general arbitration treaties with France and Great Britain, which I have been discussing, was suggested to me by Mr. Bryan himself, though the provision for investigation and report was taken from The Hague conventions. The ideal that I would aim at is an arbitral court in which any nation could make complaint against any other na- tion, and if the complaint is found by the court to be within its jurisdiction, the nation complained against should be summoned, the issue framed by pleadings, and the matter disposed of by judgment. It would, perhaps, sometimes require an international police force to carry out the judgment, but the public opinion of \ 131 1 THE UNITED STATES AND PEACE nations would accomplish much. With such a system we could count on a grad- ual abolishment of armaments and a feel- ing of the same kind of security that the United States and Canada have to-day which makes armaments and navies on our northern border entirely unnecessary. [ 132 CHAPTER IV EXPERIMENTS IN FEDERATION FOR JUDICIAL SETTLEMENT OF INTERNATIONAL DISPUTES The federative trend in international affairs has a distinct bearing upon the movement toward universal peace, al- though, of course, the federative trend has been more manifest in the formation of governments than in its effect upon the settlement of international disputes. In respect to the formation of governments this trend is the tendency, on the part of peoples under independent sovereign governments fearing foreign aggression and wishing to avoid difficulties with their neighbors, to associate themselves with [ 133 ] THE UNITED STATES AND PEACE their neighbors in the estabhshment of a common and central agency of govern- ment to which each is to delegate and con- vey part of its sovereignty. The control thus delegated usually covers foreign re- lations and the making of war and peace, and sometimes a part of the jurisdiction of internal matters. Whether the dele- gation of power and the structure upon which the federation is founded includes a formal means of settling differences be- tween the members of the confederation or not, it incidentally and necessarily has this eflfect. We may well emphasize the importance of federation in bringing about world peace and the utility of studying the historical instances of its application as a model for a plan by which independent powers shall consent to abide the judgment in proper cases of a great, permanent, impartial interna- tional court of skilled and just judges. The subject of this chapter was sug- [ 134] EXPERIMENTS IN FEDERATION gested by Mr. Holt, the editor of The Independent and one of the strongest advocates of world peace that I know. He thought an examination of historical precedent and the application of it to the problem he has so much at heart might be useful. The adoption of the principle of fed- eration in political government dates far back in Grecian history. Its best ex- ample is found in the Achaian League in the Peloponnesus of Greece, which, be- ginning in the small territory of Achaia, gradually grew in extent of constituent cities until it included most of the Pelo- ponnesian cities and a number of others in the northern peninsula. In its sec- ond and more perfect form, it was re- organized in 280 B. C. and lasted about one hundred and twenty-five years. It was formed for the purpose of resisting the dominion of Macedon. The mem- bers of it were independent municipal [ 135] THE UNITED STATES AND PEACE sovereignties and, in coming into the league, delegated to the executive and legislative authorities of the league, whom they chose, control over their foreign relations and the making of war and of peace. The historian Freeman finds many similarities between our Federal Consti- tution and that of the Achaian League. He points out the fact that Hamilton and Madison, although they studied Grecian history, were uninformed as to what he thinks the remarkable resemblance be- tween the federal structure of govern- ment in this league and that which those statesmen did much to frame in our fun- damental law of 1789. They were mis- led, he says, through the inaccuracies of a French historian, and instead of looking to the Achaian League, as they well might have done, they derived com- fort and suggestion from erroneous ac- counts of the nature of the Amphictyonic League as a federal council of Greece. He r 136 1 EXPERIMENTS IN FEDERATION points out, and other historians sustain him in the view, that the Amphietyonic League was nothing but an association of the various tribes of Greece, which, through their tribal representatives, met in a council at Delphi, where was the Oracle of Apollo, and there, in the in- terest of religion, adopted measures look- ing to its promotion and the preservation of the shrine. It was really nothing more than an ecclesiastical synod. Like not a few religious conferences, however, it occasionally adopted resolutions that touched matters that were hardly within its religious jurisdiction. It undoubtedly at times had some political influence through its religious importance. The kings of Macedon subsequently used it as an instrumentality in the politics of Greece, but it has no bearing, as Hamil- ton and Madison thought it did, upon the use of the federative principle in the formation of governments. Mr. Freeman [ 137 1 THE UNITED STATES AND PEACE says: "It is clear that Hamilton and Madison knew hardly anything more of Grecian history than what they had picked from the 'Observations' of the Abbe Mably. But it is no less clear that they were incomparably better qualified to understand and apply what they did know." The constitution of the Achaian League did not provide for a federal tribunal, and I cannot find in the somewhat lengthy volume of Mr. Freeman any reference whatever to judicial matters in the his- tory of federation in Greece and Rome. Mr. Freeman says that it was the custom among Grecian cities, when the inter- national rights of one were broken by another, to submit the issue to the ar- bitrament of a third city. Probably in this way the differences between the members of the Achaian Federation were settled when they arose. But it is a thing that we must realize, though it is [ 138 ] EXPERIMENTS IN FEDERATION a little hard to do so, that courts and judges as such — having only judicial functions — are a comparatively modern invention. The Book of Judges in the Old Testament suggests the idea that they must have had judges in Israel, but while these judges heard judicial contro- versies, as we know, they were really civil patriarchal rulers who exercised ex- ecutive and legislative as well as judicial powers. Even in the golden era of the Roman Empire, when the rule of law was being established by law-writers and juris- consults, in the four centuries before the Code of Justinian, there were no judges as such. There was an executive officer, called the Praetor, whose business it was to execute the law. He was not gener- ally a lawyer. When he had a case in the execution of the law that involved a judicial inquiry he formulated his case and submitted it to a referee, who was [ 139 ] THE UNITED STATES AND PEACE not necessarily a jurisconsult or learned in the law. He was called a Judex, and from the title given him we get the name of judge. The Praetor was elected every year, so that, in spite of the great debt that we owe to republican and imperial Rome for the supremacy that they gave to law and its administration and the symmetry that they gave to jurisprudence, we cannot say that we owe to them a judicial system of perma- nent, learned, and independent courts. For that we must look to the history of Anglo-Saxon civil liberty, because it is in English history that we find the ultimate division of governmental func- tions between the executive and legisla- tive on the one hand and the judicial on the other. The term ''court" is a late word derived from the fact that the hear- ing of the tribunal was heard in a court or courtyard. This failure to recognize a difference between the executive, leg- [ 140 ] EXPERIMENTS IN FEDERATION ^. islative, and judicial functions manifests itself even now when we come to con- sider international relations and tribu- nals for the settlement of international disputes. I shall refer to this later. After the ancient local proprietary or manorial courts lost their jurisdiction, the King of England in council or in Parliament became the seat of all gov- ernmental power, executive, legislative, and judicial. Parliament was not only a legislative body but it was a court. Lords and Commons met originally in one body. Now the two bodies are sep- arated; the judicial function is still exer- cised by the House of Lords. The King sat in his own court, which gave it the name of ''King's Court." Edward IV was the last king to do so in person. Then the King delegated this judicial duty to his justiciaries, who held the King's Court, and attended the King wherever he went. This caused great in- l 141 ] THE UNITED STATES AND PEACE convenience in private cases, and, jBnally, in the Magna Charta that was extorted from King John by the Barons at Runny- mede, that monarch agreed that the as- sizes should be held at certain times in every county of his realm by his judges, so that individuals might not be put to the trouble of following the King about in his travels in order to get justice. The use which the Stuart kings made of the judges to sustain their arbitrary course led to a change in their tenure after the revolution of 1688 and the Bill of Rights, so that early in the reign of Queen Anne they ceased to hold office at the pleasure or during the life of the King and be- came judges for life and independent of his control. We have thus inherited our conception that a court is a body that decides cases according to the law and the fact, without influence by the ex- ecutive or even the legislative power ex- cept as the legislature enacts positive [ 142 ] EXPERIMENTS IN FEDERATION law and the court construes and enforces it as a uniform rule of conduct. No such idea of a judicial tribunal, set\ a apart and independent, prevailed either \ \/ in Greece or in Rome, or during the \ Middle Ages, or during the Holy Roman Empire. It is a later conception in con- tinental countries. But it is most impor- tant that this idea of absolute justice and of having judges who in giving judgment are impartial and independent of political policy or legislative direction, should be recognized in our international relations. It is true that the Progressive party and its leaders are now seeking to destroy this conception, to take away the inde- pendence of the judiciary, to remove the idea of absolute justice which the inde- pendence of the judiciary is supposed to secure, and to mingle in its admin- istration of specific cases the desire of the sovereign electorate. Heretofore we have thought that in tracing back the [ 143] THE UNITED STATES AND PEACE history of our liberties from Magna Charta through the Petition of Right and the Bill of Rights, the Declaration of Independence, which itself insists on the independence of the judiciary, and the Federal Constitution we have had some- thing to be grateful for in the judicial system which we have inherited. This seems a far cry from the Achaian League and the federative trend of government, but I think I can make it seem relevant before I get through. We find in the Grecian example the fact that men began to realize that while a Grecian city was capable of furnishing a useful and happiness-giving govern- ment, yet when it came to resist the ag- gressions of a stronger neighbor the peo- ple of the city must look for aid among those who were similarly circumstanced and yield something of their sovereign- ties to one joint federal authority for their protection. There have been in [ 144 ] EXPERIMENTS IN FEDERATION history since that time many instances of federations. The Holy Roman Empire, theoretically and in the sonorous titles of the Emperor, began with Julius Csesar and lasted until Napoleon's time. It pre- sented at stages in its history an impor- tant phase of the federative principle for our present use. After the breaking up of the real Roman Empire by many dif- ferent barbarian invasions and migra- tions, and after the nationalizing spirit became stronger and before the Holy Roman Empire lost all its power, there were heated discussions as to the rela- tion of the Emperor to the government of men. The prevailing theory was that all secular government came from God through the people to the Emperor, and while kingdoms and dukedoms and prin- cipalities and the electorates whose chiefs elected the Emperor exercised indepen- dent government in their respective juris- dictions, they all seemed theoretically to [ 145 ] THE UNITED STATES AND PEACE concede their subordination to the divine right of the Emperor in secular govern- ment. He was called the Emperor of Peace, and one of his recognized duties and powers was to keep the kings and dukes and other potentates who were un- der him from war. He was generally un- successful, but the high character of this duty on his part and the conception which the statement of the duty showed to be in the minds of men are interesting and signijBcant. While it cannot be said that the Holy Roman Empire was the result of a federation, because in theory the Em- peror created Kings and princes, never- theless, as national life developed into dif- ferent sovereignties, the only relation that they had to the Emperor was a result akin to what would have happened had they been separate entities and had then united in a federation for purposes that the main- tenance of the imperial power continued to serve. Mr. Bryce, in his history of the [ 146 1 EXPERIMENTS IN FEDERATION Holy Roman Empire, speaking of this feature of the empire, says: With feudal rights no longer enforceable, and removed, except in his patrimonial lands, from direct contact with the subject, the Emperor was not, as heretofore, con- spicuously a German and a feudal king, and occupied an ideal position less marred by the incongruous accidents of birth and training, of national and dynastic interests. To that position three cardinal duties were attached. He who held it must typify spiritual unity, must preserve peace, must be a fountain of that by which alone among im- perfect men peace is preserved and restored — law and justice. . . . And he was, there- fore, above all things, claiming, indeed, to be upon earth the representative of the Prince of Peace, bound to listen to complaints and to redress the injuries inflicted by sover- eigns or peoples upon each other; to punish offenders against the public order of Chris- tendom; to maintain through the world, looking down as from a serene height upon the schemes and quarrels of meaner poten- tates, that supreme good without which nei- ther arts or letters, nor the gentler virtues of life, can rise and flourish. The mediaeval empire was in its essence what its modern [ 147] THE UNITED STATES AND PEACE imitators have sometimes professed them- selves — ^the Empire of Peace; the oldest and noblest title of its head was "Imperator pacificus." And, that he might be the peace- maker, he must be the expounder of justice and the author of its concrete embodiment, positive law; chief legislator and supreme judge of appeal, like his predecessor, the compiler of the Corpus Juris, the one and only source of all legitimate authority. The result of this view of the position of the Holy Roman Empire in the Middle Ages and later on is seen in a number of conceptions published in those dark centuries. They are referred to by Mr. Thomas Willing Balch in a paper on "The Advance of International Peace through Legal and Judicial Means," which he read at the 1912 meeting of the Society for the Judicial Settlement of International Disputes at Washington. In 1306 a French barrister, Pierre Du- Bois, in a treatise entitled *'De Recupe- ratione Terre Sancte," urged that the Catholic states of Europe should form [ 148] EXPERIMENTS IN FEDERATION an alliance, with the King of France at their head, in order to secure peace among themselves. Should trouble arise between any members of the proposed alliance, DuBois urged that their dififer- ence be settled by a quasi-court ap- pointed ad hoc and composed of six members, and consisting of three eccle- siastics and "three others from both parties." In each case the Pope was to be appealed to to review the decision. In 1461 King Podiebrad of Bohemia, adopting the plans of Antoine Marini, his chancellor, negotiated with other sov- ereigns for the establishment of a fed- eral state which was to have a federal congress composed of ambassadors to sit at Bale. And Henry IV proposed, at the suggestion of his minister, the Duke of Sully, what was called the Great Design. Though this was in the form of a feder- ation to avoid war, it was said to be not a genuine proposal of universal peace but [ 149 ] THE UNITED STATES AND PEACE a plan to give France the leadership of Europe. Nevertheless, it seems to have suggested a good many real plans for the accomplishment of its avowed purpose. In 1623 a Parisian monk, Emeric Cruce, proposed that all sovereignties of the world should send ambassadors to some city like Venice, and that when two sov- ereign powers disagreed, the ambassadors should plead the cause of their respective sovereigns before the other assembled ambassadors, who should decide the issue, and the judgment was to be enforced by the combined power of the sovereignties represented in the court. Within two years after the publication of this plan, Grotius, in his epoch-making work on the "Law of War and Peace," urged upon sovereigns the convening of congresses for peaceable settlement of international disputes. For our purpose, perhaps, the most interesting instance of federation other [ 150] EXPERIMENTS IN FEDERATION than that of our own country was the Swiss Republic. This federation is re- markable in that it was organized in the thirteenth century and has continued until to-day. It illustrates a continuous union of people who speak three different languages, in the very centre of Europe, and therefore in the centre of a continen- tal battle-ground. It was doubtless the result of the same desire for protection against foreign aggression that prompted the Achaian League, but it lasted longer. While the Swiss people differ in language they resemble each other in character, and there was a national spirit among them, early developed, that insisted on local self-government but on united action against invaders. Doctor Scott, in an in- teresting address before the last annual meeting of the Society for the Judicial Settlement of International Disputes, in- vited attention to the precedent of the Swiss Republic in the development of the [151] THE UNITED STATES AND PEACE federation principle into a national court after centuries of association, and he quotes the following from M. Lardy, a Swiss diplomat, who presided in an arbi- tration between Russia and Turkey, 1911 : Is it improper for me to state that more than six centuries have passed since the first of August, 1291, when the Swiss burghers signed their first treaty of alliance on the shore of the Lake of the Four Cantons, at \/ the foot of our snow-clad Alps? On that memorable day which the Swiss people an- nually celebrate with bonfires on every mountain top, while all the church-bells call upon the Almighty to protect the Father- land, the Confederate Cantons made an arbitral pact with each other, binding them- selves to submit their differences to the more prudent inhabitants (prudentiores) of their valleys and creating the force needed to as- sure the execution of the award. For cen- turies Switzerland developed under the pro- tection of arbitration, until the day came when it was enabled to commit to its federal tribunal the decision of a large number of disputes of a public nature and to intrust the rights and liberties of its citizens to the federal tribunal. Will the court of The [ 152] EXPERIMENTS IN FEDERATION Hague some day become the federal tribunal of the nations? In Switzerland, small as it is, centuries were required to create a per- manent federal tribunal and to secure its acceptance by public opinion. It is the part of wisdom to believe that many years must elapse before the basis of an agreement be found which will assure the independence of the various states and guarantee the moral heritage of every people in the universal concert of nations. It is remarkable that this system of arbitration, begun six hundred years ago, did not develop into a federal Supreme Court until 1845. We may sincerely hope that it will not take six centuries /^ for the court of arbitration, established at the first Hague Conference, to develop into the arbitral court proposed in the second Hague Conference. The next federation in point of time for our consideration is that which we of the United States have offered as a model to the world. I pass it by, for the pres- ent, to come to some more recent. We [ 153 ] K^ THE UNITED STATES AND PEACE find in the relation of the Privy Council of England to three great governments that are an important part of the British Empire, instances of the trend toward a federal court whose authority and whose function are closely akin to what an in- ternational court should exercise. I refer to Canada, Australia, and South Africa. The compromises that were made and the statesmanship and patriotism that were shown in reaching an agreement for federation of the great English and Frenfch provinces in one Dominion of Canada, owning a half continent and containing now eight millions of people, form a notable history that parallels the struggle our ancestors made to frame and ratify our Constitution. Indeed, the framers of the Canadian federation prof- ited much by the lessons from our his- tory. The same thing is true of the for- mation of the Australian federation, with five millions of people, which in some [ 154] EXPERIMENTS IN FEDERATION respects more resembles ours than does Canada. The South African federation, the last one formed, under the British Em- pire, has less of the federative principle and more of the direct government than either of the other two, or of our own. But in all these federations there is a Supreme Court which has the power of set- tling the questions arising under federa- tion law and determining the questions which may arise between the members of the federation. In each, these members are great states quite like our own, but called provinces in Canada, which carry on their local self-governments and ex- ercise an autonomy differing somewhat from that exercised by our States, but all illustrating, in a most satisfactory way, the value of the federative principle, by which the idiosyncrasies of locality and local tradition are given full scope in the provincial governments, while the general law of the federation, as a whole, is left I 155 ] THE UNITED STATES AND PEACE to the federative parliament, courts, and executive to prescribe, interpret, and exe- cute. Each has a supreme court which passes on the quasi-international relations between the members that go to make up the federation. And then what is even more important and more significant of the possibilities of a world federation is the judicial appeal that may be taken from the supreme courts of these Federa- tions to the Privy Council sitting in En- gland that acts as a supreme tribunal for all the quasi-independent governments of the entire empire. Sir Charles Fitzpat- rick, the Chief Justice of Canada, has been invited to sit in the Privy Council in the coming summer in a cause concern- ing the boundary between Newfoundland (which is a separate colony of Great Brit- ain) and the Dominion of Canada. In the decision of such a case it is inevitable that the high tribunal will administer the general principles of international law. [ 156 ] EXPERIMENTS IN FEDERATION Coming now to our own government and its organization, it is entirely un- necessary for me to go into the general history of the organization of the original federation, the history of the adoption of the Articles of Confederation after the Declaration of Independence, or the or- ganization of our government under our present Constitution into a more com- pact union, making us a nation before the world. Under the Articles of Confederation, Congress was made the tribunal to settle controversies and differences arising be- tween the independent sovereign States that made up the Confederation. The name "Congress" indicated the charac- ter of the body. Congress, in the lan- guage of diplomacy, was a term applied to a meeting of sovereigns or of their am- bassadors for international action. Con- gress under the Federation was called upon to settle at least one State contro- l 157 ] THE UNITED STATES AND PEACE versy. That was the dispute between Pennsylvania and Connecticut as to the title of lands in the Wyoming Valley now in Pennsylvania. Congress selected from the different States a list of men from whom the parties were enabled to select a certain number to constitute the court. The court sat at Trenton, heard evidence for forty days, and decided the contro- versy in favor of Pennsylvania, and in this judgment the State of Connecticut acquiesced. In the Constitution of 1789 the judi- cial power of the United States was extended to controversies between two States and between a State and a foreign state. And these controversies were to be heard as original cases before the Su- preme Court. The Constitution also ex- tended the judicial power of the United States to any suit in which the United States was a party. This enables the United States to sue any State, and [ 158 ] EXPERIMENTS IN FEDERATION the fact that the State is a party gives original jurisdiction to the Supreme Court to consider the cause. One such case has been tried growing out of a dispute in a boundary that involved the title of the State of Texas to Greer County. The question was whether Greer County belonged to the United States or whether it was a part of Texas. The Supreme Court heard the case and decided in favor of the United States, and Greer County subsequently became part of the new State of Oklahoma. It is unneces- sary to enumerate the number of cases in which the Supreme Court has been called upon to adjudicate between the sovereign States and to enforce international law in their controversies. Mr. Wickersham, when attorney-general, reviewed them at length in an interesting paper read by him before the 1912 meeting of the Society for Judicial Settlement of International Disputes. In my last chapter I referred [ 159] THE UNITED STATES AND PEACE to the case of Kansas v. Colorado, 185 U. S. 146, from the language of Chief Justice Fuller's opinion in which the term ''justiciable" suggested its use in the general arbitration treaties to de- scribe the kind of controversies which might properly be arbitrated. In that case the chief justice said: Sitting, as it were, as an international as well as a domestic tribunal, we apply federal law, State law, and international law, as the exigencies of the particular case may demand. In the same case, reported again in 206 U. S. 46, 97, Mr. Justice Brewer, de- livering the opinion of the court, says: As Congress cannot make compacts be- tween the States, as it cannot, in respect to certain matters, by legislation compel their separate action, disputes between them must be settled either by force or else by appeal to tribunals empowered to determine the right and wrong thereof. Force, under our system of government, is eliminated. The clear language of the Constitution vests in [ 160] EXPERIMENTS IN FEDERATION this court the power to settle those disputes. We have exercised that power in a variety of instances, determining in the several in- stances the justice of the dispute. Nor is our jurisdiction ousted even if, because Kansas and Colorado are States sovereign and independent in local matters, the rela- tions between them depend in any respect upon principles of international law. Inter- national law is no alien in this tribunal. In the Paquete Habana, 175 U. S. 677, 700, Mr. Justice Gray declared: ** International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdic- tion as often as questions of right depend- ing upon it are duly presented for their de- termination." Mr. Wickersham calls attention to the fact that very few instances have occurred in which a foreign state has availed itself of the privilege of suing a State of the United States in the Su- preme Court, but he notes a case in which I had the honor to be of counsel, entitled "In re Cooper," 138 U. S. 404, in which, with the knowledge and approval of the [ 161 1 THE UNITED STATES AND PEACE Imperial Government of Great Britain and in the name of the attorney-gen- eral for the Dominion of Canada, an application was made to the Supreme Court to issue a writ of prohibition to prevent an admiralty court in Alaska from selling under a decree of forfeiture a Canadian schooner for alleged viola- tion of the statute of the United States against pelagic sealing, on the ground that this sealing was done beyond the jurisdiction of the government of the United States in the open seas. This was a very emphatic testimonial to the con- fidence which the British Government had in our Supreme Court, and the chief justice acknowledged it in the following language: In this case — ^Her Britannic Majesty's attorney-general of Canada has presented, with the knowledge and approval of the im- perial Government of Great Britain, a sug- gestion on behalf of the claimant. He repre- sents no property interest in the vessel, as [ 162] EXPERIMENTS IN FEDERATION is sometimes done by consuls, but only a public political interest. We are not insen- sible to the courtesy implied in the willing- ness thus manifested that this court should proceed to a decision on the main question argued for the petitioner; nor do we permit ourselves to doubt that under such circum- stances the decision would receive all the consideration that the utmost good faith would require; but it is very clear that, pre- sented as a political question merely, it would not fall within our province to determine it. We allude to this in passing, but not at all with the intention of indicating that the sug- gestion itself diminishes the private rights of the claimant in any degree. (143 U. S. 503.) This international recognition of our own Federal court brings us to the larger projects for world federation for judicial purposes which centre in The Hague. The federation in international matters took definite form in the invitation is- sued by the Emperor of Russia to hold the First Hague Conference. At that conference an agreement was entered into by the many nations that took part [ 163] THE UNITED STATES AND PEACE in it, embracing all the important na- tions of the world, providing a so-called permanent court of arbitration for the settlement of international disputes. In a strict sense it is not permanent, nor is it a court. The agreement does invite each one of the signatory powers to fur- nish a list of competent persons from whom parties seeking the form of pro- cedure provided may select arbitrators. But it might better be called a perma- nent plan and form of procedure for temporary arbitrations in the settlement of international disputes. The Second Conference, however, made a great advance over this. It adopted a form for a permanent international prize court and framed a definite organi- zation of that court. It provided that the judges appointed by the following contracting parties, Germany, the United States of America, Austria, France, Great Britain, Italy, Japan, and Russia, [ 164 ] EXPERIMENTS IN FEDERATION should always be summoned to sit, while judges appointed by the other contract- ing powers should sit in rotation as shown in the table annexed to the con- vention, and the same judge might be appointed by several of the powers. It provided for an appeal from the existing prize courts of any nation to this inter- national prize court and bound the pow- ers to abide by the result of the ap- peal. Of course, services of a prize court are called into requisition only during naval warfare. The prize jurisdiction is part of the system of legal piracy that continues to be recognized as within civilized warfare, by which private prop- erty of the citizens of an enemy, carried in trading vessels under the flag of the enemy, though harmless and unarmed, nevertheless may be captured as lawful prize and sold for the benefit of the oflB- cers and men of the capturing war- vessel. By the present rules of naval warfare, the [ 165 ] THE UNITED STATES AND PEACE prize has to be taken into a port of the country of the capturer, and there, in a proceeding before an admiralty court sitting as a prize court, the vessel and her cargo are adjudged lawful prize and sold and the proceeds distributed. It was impossible under our Constitution for us to agree to an appeal from the de- cision of our prize courts, whether dis- trict or supreme, to an international prize court, but instead of that we agreed to have the cause submitted to the in- ternational prize court, and if the de- cision of the Supreme Court or the local court was found to be wrong, to allow the international prize court to adjudge damages against the United States suffi- cient to compensate the person injured by the decision. Such a procedure had been foreshadowed in several cases in which the judgments of the Supreme Court in prize appeals had been held to be erroneous by an international arbi- [ 166] EXPERIMENTS IN FEDERATION tration, and an award on the basis of the arbitration had been made and paid by Congress. The international-prize-court provisions, although agreed upon in de- tail at The Hague Conference, have not been embodied in a convention between the powers because of a difficulty in set- tling what the law of prize is. In order to do this, a conference of the powers as- sembled in London and agreed to what was known as the Declaration of London, formulating a code of rules regulating the rights of neutrals and belligerents with respect to neutral commerce. I am sorry to say that England has not con- sented to that declaration, and her failure to do so has thus far made impossible the consummation of the very noteworthy plan for an international court of prize. But the international court of prize is important not for itself but because of what has grown out of it, to wit, the recommendation of the Second Con- f 167 1 THE UNITED STATES AND PEACE ference of The Hague that we shall have an arbitral court of justice permanent in its membership, with paid members, who shall take no part except as judges in any- international dispute. This has failed of complete concurrence by all the powers interested, because every power wished to have a judge on this court, and, as there are forty-six signatory powers, such a court is impossible. Why they might not make the same arrangement that was made in the international prize court as to membership, is not quite clear. Probably a good many of the powers were not interested in naval warfare, and therefore not in the decisions of an inter- national prize court, while they might be in the decisions of an international court of more general jurisdiction. The recommendation of this Second Hague Conference of both courts, how- ever, is most gratifying, and if followed will constitute a long step forward in the [ 168 1 EXPERIMENTS IN FEDERATION mode of settling international disputes, closely approximating that of settling controversies in our domestic tribunals. Attention has been called by a number of persons who have followed closely international arbitration, and who well understand municipal judicial systems, notably Mr. Knox and Mr. Root, to the difference between international arbitra- tion as it has been practised and the result of the submission of causes to a domestic court. The tribunal of arbi- tration has usually been composed of representatives from each party and an umpire or umpires from other countries. The decision resulting has too often been not a clean judgment of the facts and the law on the merits, but it has been a com- promise with the hope that each party may acquiesce in the suggestion of set- tlement. It is really a continuation of diplomatic effort to reach a settlement satisfactory to both parties with as much [ 169] THE UNITED STATES AND PEACE gentle pressure as may be. The presence on the court of representatives of each party is calculated to bring about such a result. They fall into the attitude not of judges but of partisan claim- ants in the consultations of the tribunal; and apparently it is not expected that they will ever consent, or make themselves parties, to a judgment adverse to the seri- ous claims of the country which they are supposed to represent. I do not think it is too much to say that this has generally been the continental view. With En- glish and American jurists seated on the tribunal, exceptions have been known. They have generally approached ques- tions presented to them as members of a tribunal in the same way in which they would approach questions presented to them as judges in a municipal court. Thus, in the issue between Great Britain and the United States as to the Alaskan boundary. Lord Chief Justice Alverston [ 170] EXPERIMENTS IN FEDERATION sat as one of the arbitrators and voted to decide the main question in favor of the United States. His attitude was very severely criticised, but he justified him- self as an EngHsh judge, and said if he was to be selected as a judge, he expected to act as a judge. So, in the seals con- troversy, Mr. Justice Harlan, while con- curring in the claim of the United States in one aspect, voted to reject the claim of territorial jurisdiction made on behalf of the United States and earlier set forth at great length by Mr. Blaine when sec- retary of state. But it may be asked why this method of compromise in arbitrations is not the best way of settling international dis- putes. Does it not prevent the feeling of bitterness that more drastic judgments might create in the minds of the defeated nations and thus will promote peace and good-will .f^ I think not. A nation which has a good cause, or thinks it has, will hesi- [ 171 ] THE UNITED STATES AND PEACE tate to submit the cause to a tribunal that will in practice and by custom abate part of the claim, not on grounds of justice, but in order to satisfy the natural partisan feeling of the opposing party. It is a fearless, clear-headed, justice-loving court that will command the confidence of the nations and will induce the submission of claims to it. A permanent international court sitting with a permanent member- ship, and hearing case after case, will acquire not only a faciUty of decision but also will acquire the joint judicial spirit in approaching all kinds of questions. We cannot expect that in the beginning we shall have perfect results. We must an- ticipate the presence of prejudice in the court, but the longer that it exists and the more cases it has to decide and the more its decisions form a consistent sys- tem of law, the more confident may we be that it will grow into a great court for the consideration of international ques- [ 172 1 EXPERIMENTS IN FEDERATION tions having the respect of the civiUzed world. The independence of the EngHsh and American judiciary has created — I think it may be said without invidious distinc- tion — a higher standard of judicial im- partiality because of the historical growth of our courts into their present attitude than prevails in any other countries, and, therefore, even in a case between England and the United States, I would quite as willingly submit the case to three English judges and two American judges sitting in a court of five as I would to a court consisting wholly of jurists from other countries. It is very clear that if we can se- cure any system for a permanent court which shall sit to hear such cases as are presented to it, the number of cases which will be submitted and the de- cisions arising therefrom will be of suf- ficient influence to induce the submis- [ 173 ] THE UNITED STATES AND PEACE sion of more and more cases to such an impartial tribunal as it will prove to be. The formation of the court is a most im- portant step, because, with the cases that are submitted to it, it will become an object-lesson. Time and time again the situation will arise when a government by public opinion of the world will be forced into some other method than defiant re- fusal to meet an equitable claim, and then, when such a court exists, it will propose submission to it of the pending question in order to escape from a more embarrass- ing solution. With the formation of The Hague Court of Arbitral Justice, as recom- mended by the Second Hague Confer- ence, for the consideration of all ques- tions arising between the nations of the world, I shall look forward with confident hope to the signing within a few decades, or a half -century (for what is such a pe- riod in the achievement of such a triumph [ 174] EXPERIMENTS IN FEDERATION of righteousness?), of a general treaty or convention by all the great powers, in which they shall agree to submit all jus- ticiable controversies to this tribunal. I hope that they will make the convention in the form of a federal agreement by which this court shall be recognized as a federal court, with the right on the part of any nation aggrieved against another nation to bring its complaint into the court, have the court determine its juris- diction of the complaint in accord with the definition of its jurisdiction in the con- vention, and then summon the offending nation and require an answer, and after hearing enter judgment. Why do I hope for this? Am I overenthusiastic? It may take time, I admit, but not so many years as scoffers suppose. The usefulness of examining history with reference to the federative trend of government is to show that federation is a normal and natural method of taking care [ 175 ] THE UNITED STATES AND PEACE of and settling, in an effective way, jus- ticiable questions between sovereignties. The theoretical power and duty of ad- justment of differences between nations by the Holy Roman Empire induced great conceptions such as I have described at a time when war was a normal condition between nations and peace was the ex- ception. It was such a conception that led to the urgent recommendation of that great international lawgiver, Grotius. The growth of arbitration into a federal court in the history of the Swiss Republic is another instance of the natural de- velopment from independence into federa- tion, and then from negotiation and ar- bitration into a federal court for settling differences betwe'en the federated sover- eignties. The international jurisdiction of the Supreme Court of the United States is another most significant model and points the natural historical way of set- tling international disputes both in the- [ 176] EXPERIMENTS IN FEDERATION ory and in practice. The federative prin- ciple in the organization of the three great EngHsh federations, Canada, AustraHa, and South Africa, the estabHshment of a supreme court in each federation to decide between the members, and the real character of the Privy Council in En- gland in settling the judicial questions between'^ members of the British Em- pire, all point more and more nearly to the goal we seek of a world federation court. But it is said: "If this federative trend of government has existed since Grecian times, and was recognized in the Middle Ages, in the days of Charlemagne and Henry the Fowler and Frederick Barba- rossa, why has it failed in the long time which has elapsed since then to develop into the court you seek? Why may you expect now more rapid progress after cen- turies of delay .f^" One reason is the suc- cess of the use of federal courts in settling [ 177 1 THE UNITED STATES AND PEACE differences really inter-sovereign, if I may- coin a word, as seen in these modern fed- eral governments, and a further reason is that the whole world is aroused to the ad- vantage of peace, as it never has been be- fore. Nations of the world are growing closer and closer to each other. Facility of transportation and facility of commu- nication have developed a knowledge and an interest among the people of one coun- try in the doings of the people of another that was never known before. We fol- low with close attention the Ulster con- troversy, the political tragedy in France, the trial involving the military conduct of army officers in Alsace, the Jewish per- secution in Russia, the parliamentary proceedings in China, the overthrow of a party in the responsible parliamentary government of Japan. We may be sure that peoples of other countries, with equal facility, follow the important events in [ 178 ] EXPERIMENTS IN FEDERATION this country. Money is being poured into the coffers of our missionary societies for the purpose of promoting Christian civ- ihzation throughout the Orient and in Africa to give us in those countries ad- vance agents and pioneers representing al- truism and the promotion of true rehgion. The united spirit of search for truth and the promotion of world brotherhood shown in the universities the world over, and the gradual forming of a world public opin- ion, of higher moral standards, all create an atmosphere in which we may be sure this federative trend in international mat- ters will be fostered and encouraged to extend to the creation of a federal world court whose judgments nations will ulti- mately regard as binding in the same sense as those which domestic courts render. But the query is made: "How will judgments of such a court be enforced; what will be the sanction for their execu- [ 179] THE UNITED STATES AND PEACE tion?" I am very little concerned about that. After we have gotten the cases into court and decided and the judgments embodied in a solemn declaration of a court thus established, few nations will care to face the condemnation of inter- national public opinion and disobey the judgment. When a judgment of that court is defied, it will be time enough to devise methods to prevent the recurrence of such an international breach of faith. Undoubtedly when such a court is es- tablished, and a series of judgments have been delivered, these will constitute great and valuable additions to international law. The controversies will invite appli- cation of recognized principles to new facts, and the variation that new applica- tions will involve will widen the law, and the court will be an authoritative source for its growth and development. It will be judge-made law, and the growth of the [ 180] EXPERIMENTS IN FEDERATION international law will be as the common law has grown, adapting itself to new conditions and expanding on principles of morality and general equity. It is, therefore, federation to the extent of a permanent international court that offers the solution of the problem of how to escape war, how to induce nations to give up the burden of armaments, and how to broaden and make certain our system of international law. It will be natural with a court thus estabUshed, and with the closer union that it will necessarily bring between the various powers of the earth, that congresses of nations shall be called at convenient pe- riods, in which, by treaties, an interna- tional code may be adopted to meet the defects in accepted international law which the issues and judgments in the arbitral court may develop, and which the judicial discretion of such a tribunal I 181 ] THE UNITED STATES AND PEACE may not be broad enough to supply. Such a court and such a code will greatly promote justice in the world and the peace of nations. [ 182] U DAY USE ,,™K.TOD\tKn.OMWHXa,BOKKOWBn LOAN DEPT. ThU boo. is due on^e 'ast date l^^ped below o, Renewed°S