World peace : or principles of international law in their application to efforts for the preservation of the peace of the world

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CHAPTER I The State and Sovereignty 11 CHAPTER n The Law 34

CHAPTER HI The Law of Nations 57

CHAPTER IV Recent Effort to Establish World Peace 71

CHAPTER V Commonwealth of Nations 86

CHAPTER VI Common Ground 116

CHAPTER VII International Peace and Liberty 133

APPENDIXES

A. The Hague Convention for the Pacific Set-

tlement of International Disputes 155

B. Reservations by the United States 177

C. The Covenant of the League of Nations 179

D. The Permanent Court of International Jus-

tice 193

Introduction

The cycles of the world's history are punctuated by great events that mark the epochs in its onward sweep. It seems as though the course of nature is to move slowly for long periods and then, with strength gathered through years or even centuries of sluggish inactivity, to leap forward at one bound into a reformed or rejuvenated world. Creasy, in his Decisive Battles of the World, in fifteen master strides, carries the student forward from Marathon to Waterloo. The close student of history, however, discovers in every period preceding a great event the natural forces quietly forming, of which the epoch producing event is but the culmination.

After the long periods of preparation or inactivity things happen rapidly and events more precipitantly. The actors upon the stage do not pause to weigh the effects of their actions, or seem to consciously control their movements. Just now there may be a question as to whether we are in the midst of such a period, or whether such an epoch has just passed, or if one of that nature is approaching. One must have perspective to properly judge the true nature of historic periods.

For many years the world seemed approaching a solution of the problem of universal peace. In every nation there were great men who ^Vere giving their thoughts to this problem. Many controversies that might have led to war were settled by peaceful means. Conferences of the representatives of all of the great nations were held and plans for the preservation of world peace were formulated. But every plan for world peace has, as a part of its object, the preservation of the existing status between the nations at the time when it is proposed to put the plan into operation, and many students of world affairs doubted if any plan could preserve far into the future the conditions of a few years ago. Some one has likened European civilization just before the war to a cone balanced upon its* apex instead of standing upon its base, which the statesmen of the world were engaged in a vain attempt to prevent from toppling over. After what seemed the quiet formation of events leading toward a world peace the hour for a new epoch struck but instead of world peace being ushered in a war that made all of the

INTEODUCTION 7

wars of the past seem like preliminary skirmishes was in progress. All hopes of world peace seemed shattered, but a great society for the preservation of peace changed its name to a society for the enforcement of peace, and out of the great longing for peace in the midst of war was born the purpose of establishing peace by martial means, and putting a sword in the right hand of peace that it might conquer war and putting a purse in the other hand that it might maintain the sword.

As I have said, in epoch making periods events move rapidly. It was thought by some, while the ruins wrought by war were still smoldering after the armistice, that six weeks would suffice to change the world from a war to a peace basis, and that all of the plans for the maintenance of peace by peaceful means, which were supposed to have miserably failed, should in that short time be changed to plans for the maintenance of peace by martial means, and it was thought that in that brief period a new status would be created between the nations, which the world would desire to maintain in perpetuity, and that thus peace would flow naturally from this readjustment, whereas war had been the natural result of the former relations between the nations, but events could not move as rapidly as it was hoped by some. It was found that while a republic might move rapidly in war, when the imminent peril had ceased it resumed its wonted deliberation.

But events are moving rapidly. The great epoch producing period has not passed, and it will not have passed until the questions of an attempt at permanent peace and of reconstruction are settled, and events will move rapidly until that time, not fast enough to please some, but possibly too fast to insure the permanence of the settlement that shall be attained.

When it became apparent that the American people were going to be called upon, either through the right of petition or at the polls, to express themselves upon the question of a proposed constitution for a League of Nations I was an earnest advocate of the belief that every person should study such questions and that all who had given such study serious consideration should express themselves to the end that any action on the part of the people would be the result of thought and deliberation.

While an election has been held that may be regarded as decisive of certain of the questions involved, the major questions still remain. America has not yet acted, and until this country does act our people should be alive to whatever is being done. Questions of international law have been brought to the foreground and for that reason this short course

INTRODUCTION 9

is prepared. I shall not take up in detail many of the controverted questions of this branch of the law. That field is open to the student who desires to pursue the subject beyond the limits of a short course, and it is covered by many valuable works. All that I expect to accomplish in this course is to outline the American theory from which questions that are imminent may be approached. It has been said that when the first railroads were run across the Western plains not only wild buffaloes, but Indians as well, were run down while standing gazing at an onrushing train, because unaware of the terrible velocity and momentum of the unaccustomed object that was approaching, and some one has likened man's ignorance of the velocity and momentum of historic events to this ignorance of these inhabitants of the plains. Let us not be borne down by the irresistible tide of events that may be approaching. Let us act the part of citizens of a Democracy, and do only what we would will to do after giving intelligent consideration to proposed actions. We should not refuse to do anything because it is new nor should we blindly do anything because it may possibly lead to beneficient results without having given such careftil thought to the probabilities of such results as may ensue.

I will devote more attention to the nature of the state or nation and to the nature of law in general than it might seem necessary in a short series of lectures on this subject. One might feel that all questions in relation to these natters should be taken as established, and that I should enter immediately into the questions which seem more germane to the general subject of the lectures, but as much of our beliefs in relation to questions of international law depends upon our particular theories of the state and the origin and nature of law in general, I have thought best to devote considerable time to the discussion of these subjects.*

♦When it is stated that the people of this country will not likely consent to the incorporation of certain diings in any convention between this nation and other countries, I do not make any pretense of intuitive knowledge of what those who will exercise the treaty making powers of. this government may do, but I rely upon the belief that their action will be in accordance with the laws and customs of this country, and will fairly express the ideals and beliefs of our people. I have purposely omitted any discussion of the provisions of the Constitution (Article II, Section 2, Clause 2, Moore's Digest, Vol. 5, p. 160),

in relation to the treaty powers of the President and Senate, for the reason that there has never been any real, l^al or diplomatic controversy as to the plain meaning of this constitutional provision, and to discuss platform utterances in reference to this matter might seem like an expression of partisanship, which should be avoided.

CHAPTER I

In international law each sovereign state is regarded as an equal unit. This rule gives rise to no incongruities or embarrassment so long as there is no attempt on the part of the nations observing the principles and obligations of international law to exercise coercive measures toward such units, or to take action tantamount to the exercise of legislative or judicial functions in matters aflFecting all nations acknowledging the obligations of international law. Whenever these things are attempted the more powerful nations will naturally demand a larger share in such activities than tEey will concede to the smaller nations, and if it is right for such action to be taken by a group of nations, or by the civilized nations of the world generally, it would be just that the greater nations should have a larger share in such matters than the lesser nations.

While it is true that the nations are in general regarded as equal units it is also true that the few larger nations of Europe and the

United States have been looked to as authorities in determining what is international law. To state the matter briefly the civilized nations of the world are voluntarily accepting the principles of international law in the government of themselves by which they regulate their conduct in dealing with one another ; and, in determining what has been accepted at any certain date as the existing or established law of nations, the practices of the nations having the most frequent transactions between themselves have the greater authority and influence.

International law is not concerned with the internal affairs of nations, nor with the form of Government existing within any state, but if a country has no Government sufficiently stable to perform international obligations, other countries would be justified in refusing to treat with those pretending to exercise its Governmental functions. An uncivilized country is not regarded as a member of the society of nations, and if a nation once civilized should fall from such high estate to the level of uncivilized peoples other nations would be justified in giving it only such consideration as its present status would show it to be entitled to receive.

If the internal conditions of a country should become such as to menace other nations the

THE STATE AND SOVEBEI6NTY 18

nations affected would be justified in taking such action as should be found necessary to protect their interests. Where a populous country chooses to remain isolated from the society of nations and to have no commerce or other dealings with other countries there are precedents for such other nations breaking in upon its isolation, but as the world is now mostly occupied by nations that do treat with one another in times of peace it is not necessary to dwell upon this phase of the question. The theory of the state as found in the text of some authors of respectable authority is that of an aggregation of persons residing in certain territory held together, more or less against their will, by a sovereign who compels them to submit to laws which they would refuse to obey if they dared to do so, or as some times expressed, an aggregation of persons witEin certain territory who, to avoid annihilation, or continual wars, or damage by reason of their tendency to commit depredations upon one another, each yields up a certain amount of his independence to a sovereign whose prerogative it is to compel all of the individuals of the Government to do justice by another. In this latter supposition these indiviciuals yield, not by reason of any inherent desire to do justice, but because their fear of harm from one another outweighs their desire, still preserved, to prey upon each other. I will concede that I have stated these things with a degree of bluntness that might have shocked their original exponents. There are many other suppositions as to the basis for organized society, all bearing more or less resemblance to the above, and it is only fair to those advocating the theory of a social contract as a basis for organized society that I refer to a leading authority for a statement of a theory which I have purposely outlined so bluntly.

Austin, in Province of Jurisprudence Determined, page 164, describes Hobbs' Theory of the State as follows : "He ascribes the origin of sovereignty and of independent political society to a fictitious agreement or covenant. He supposes, indeed, that the subjects are induced to make that agreement by their perception of the expediency of government, and by their desire to escape from anarchy,"' and on page 181 et seq. he gives an extended statement of the theory of those who believe in the social contract, to which I will only refer as I do not wish to devote too much time to this question.

None of these suppositions has an historic basis and none of them is scientifically correct, so it might not be amiss to make another supposition, which, though not exactly according to the facts, will at least be as near the truth as any suppositions heretofore expressed. Let

US suppose the state to be composed of independent individuals, each desiring to do justice by his fellows, but conscious of the inability of one ordinarily to decide his own case without prejudice, agreeing, at the expense of the individuals, upon some just basis to let representatives of all, to be chosen in some equitable manner agreed upon, to decide upon all questions that may arise between them, and thereafter to perform any awards that may be made by such representatives; and, because of the impracticability of each attempting to build his particular share of the roads, and other works that may be used by all, to let such things be managed by the representatives of all, at the common expense, to be borne in an equitable manner agreed upon, with the understanding that the sovereignty, so far as that term, with the significance which usage has assigned to it, is applicable to such a state, shall rest with the individuals, to be exercised by them, either by the united action of all, or through their representatives, who shall be their servants. And let us suppose that each individual will do his duty when it is ascertained in this manner, ^ith a few possible exceptions of some malefactors who may exist in every community, and that some means shall be adopted to apply to such malefactors compelling them to do the things which all have by implication agreed to do. These are not Utopian suggestions. They are as near the facts of history and present day experience as any other suppositions as to a contractual basis of society, and will be more useful in determining questions that may arise in the future than some suppositions that are regarded by many as authoritative.

How ridiculous to believe, according to some of these suppositions, that the burglar has given up his right to burglarize in order that he may be protected from his neighbor burglar ! How much more in accordance with the fact

it is to suppose society to be founded upon the desire of just men to reach a genferal understanding! But the difficulty with all of these suppositions is that no one has even been able to discover any nation or group beginning its existence as a state with such a contract. Even a new nation that has begun after a revolution, or after having been formed by the division of an older nation, begins with many customs and laws which run so far back into antiquity that, to use the phrase of the English Common Law, ''the mind of man runneth not to the contrary."

Volumes have been written about the so-called social contract. Those who base their theory of government upon a supposed social contract acknowledge that there never has been a government founded upon a real contract between the governed and the governing,

THE STATE AND SOYEBEIQNTY X7

nor between the various individuals comprised within the government ; and those who do not believe in the social contract as a basis for government have written long chapters to prove that there is no such thing as a social contract, starting out with a premise that even the advocates of the theory acknowledge that there is no such thing, so their disquisitions upon this subject amount to the setting up of a man of straw and thereafter demolishing it. Why do not both of these parties simply state the facts ? It could be done with less consumption of paper and ink than that used in either attempting to substantiate or to demolish the theory in question. The facts are that when men are born into the world they find themselves component parts of some social system or systems all prepared for them. They fill their respective niches in these systems. They inherit the places which they fill, just as they inherit their physical, mental and spiritual characteristics from their parents. The governments in which they find themselves express the nature of all of the people within them, and they are changed from time to time to vary such expression to embrace the newer elements which are added to them by the birth or adoption of new subjects. Now if the subject could exercise perfect freedom in accepting the institutions of the country in which he found himself when arriving at the age of discretion, or of going to some other country whose institutions he liked better, then it might be said that continually men were entering into a social contract and assuming all of the ordinary obligations and acquiring all of the ordinary rights that such contracts might provide or imply, but there is not ordinarily any such freedom of choice, and while the relation of the individual to his government and to his fellow-citizens may bear some resemblance to contractual relations, they have their own particular relations that give rise to their peculiar obligations and the nature of those obligations can best be understood by studying them as they are, instead of imagining them to be something that they are not. It is doubtless true that to know the law of contracts might give one a better understanding with which to gain an accurate conception of the obligations of the citizen to his government, and of the government to the citizen, assuming for the time being that the government may be the subject of obligations.

It is to the interest of every subject that there should be order within the state. A very poor government is better than anarchy. The subject is entitled to be protected by the government, so far as it is capable of rendering such protection, in the enjoyment of such rights as the laws of his country give him, and on the other hand he is bound to perform such obligations toward the government in which he lives, and his fellow-citizens, as the laws of the country in which he finds himself require.

It is true that an obligation rests upon the subject beyond simply obeying and aiding in the execution of the laws, and observing the customs of his country. As those laws and customs give expression to the united will and composite personality of the citizenship, he has his duty to perform of impressing, so far as possible, his own personality upon the institutions of his country, so that by the advent of each new citizen into the community the composite expression will be so revised as to correctly represent all that is best within the state.

I have tried not to state a theory, but to state a few facts and draw conclusions therefrom. I will concede that there are many things that should enter into the account which could not be stated in a brief space. The nature of the state is the expression not only of the nature of all of the people within the state at any particular time, but it is an expression also of the lives of many that have acted their part in the formation of the state and have passed beyond, and its institutions are affected more or less by outside influences too numerous to be mentioned.

The term "sovereign" is used not only as arf

20 WOBU) FEACX

adjective descriptive of the independent state, but as a noun designating the paramount power within a state, about which volumes have been written. Sovereignty, as usually understood, is a theory, not a fact. It is not a fixed theory, because the highest authorities differ as to the nature of sovereignty. It is a theory which arose from certain other theories, most of which have been exploded, and it persists in the early conception of the tierm, notwithstanding these fundamental theories have ceased to exist. It would be difficult to find a philosopher who believes in the doctrine of the divine right of kings. The last ruler who seemed to be obsessed with that idea has now no government to rule over. If he still claims the right, it is one of those violated rights without a remedy — an incongruity that the law abhors. Several sovereigns have lost their heads in a vain attempt to uphold the doctrine that "the king can do no wrong,'* and the doctrine is now never insisted upon, notwithstanding the expedient to save it, of creating responsible ministers, whose political heads could be removed without ending their physical existence. And even the absolute right of the majority finds no respectable defenders today. The social contract by which an imaginary people enter into a compact with a mythical monarch, binding themselves and their heirs forever to submit to the rule of himself and his heirs forever, is no longer sought as a basis of present-day relations between a ruler and the government, and even the more reasonable theories of the so-called social contract have been largely repudiated as unscientific, and the scientific theory by which actual institutions of men existing, and which have existed, are studied in order to determine what God wills as to the relations between the governed and the governing, or what are the aims of nature in that regard, as it is expressed by those who would avoid a reference to the direct interposition of Deity, has its difficulties. For man is still in the making, and being in the formative stage we cannot scientifically determine just what are the rights of the governing and governed by studying his works or institutions alone, but if we would ascertain the true nature of man we must study him, not only in his works, but above his institutions, in his thoughts and aspirations, in all that we know of what he is and what he aspires to be. Aristotle says, "Every city must be allowed to be the work of nature if we admit that the original society between male and female is. For to this as their end all subordinate societies tend, and the end of everything is the nature of it. For what every being is in its most perfect state that certainly is the nature of that being, whether it be a man, a horse or a house, besides i^hatsoever produces the final cause and the end which we desire must be best."

Sir Henry Mayne, in his International Law, third lecture, page 54, quotes from Mr. Montague Barnard as follows :

"By a sovereign state we mean a community or number of persons permanently under a sovereign government of their own; and by a sovereign government we mean a government, however constituted, which exercises the power of making and enforcing law within a community, and is not itself subject to any superior government. These two factors, the one positive, the other negative, the exercise of power and absence of superior control, compose the notion of sovereign and are essential to it."

Sir Henry Mayne, in The Early History of Institutions, page 357, stated the fundamental position of the Austinian doctrine as follows: "That in every independent community of man there resides the power of acting with irresistible force on the several members of that community." This, Mayne says, may be accepted as a fact. In another passage Austin states that there is in the sovereign or sovereign body the power of doing exactly what he or it pleases. John Austin^s view of sovereignty was a power existing in some person or persons within the state, which was absolute over

THE STATE AND SOTEBEIONTY 28

the subject, and which was superix)r to the law which it created.

James C. Carter, in his "Law, Its Origin, Growth and Function," page 252, says: "Society is not an institution created by voluntary action for mutual improvement and discipline, but is a great fact springing from the nature of a man as a social animal." The scientific method is discovered after all to have developed into the method of speculative philosophy, and after having long outgrown the doctrine of the divine right of kings, or of whomsoever assumes the role of governing, we may ultimately come to the conclusion that divinity, if not having shaped, is forever shaping the destiny of nations ; that the same spirit that prompts one to submit to just rule will lead another to destroy a tyrant. So after some centuries of philosophical speculation and scientific investigation we have arrived at a point not far from where the philosophers began, and scientific jurists are still engaged in philosophical speculations. The real progress which the world has made is by attaining clearer ideas of man^s destiny and God's will. We know that there is no such thing as man in a state of nature unless we say of man as we would of everything else that nature has produced, that it is natural for him to be what he is, and that the highest individual is as much a product of nature as the most untaught sav-

24 WOSJJ) PEACE

age, the most highly developed state, as well as the most primitive community.

Without following the course of the development of phrases in the accepted ideas of sovereignty as expressed by different authorities, let us examine the idea as it is accepted in this country. We regard sovereignty as resting with the people. The people exercise this sovereignty in their respective states so far as certain matters are concerned, and in the Federal Government as to other matters. As is well known, only the Federal Government acts as the sovereign state in dealing with foreign countries. The sovereign people of this country exercise their functions as such, in part, through certain officers chosen by them, not to rule over them, but to act for them as their servants. Having chosen their officers, who in most instances act for short periods, the only function which they retain of direct action, except in purely local matters, is by petition to the officers whom they have elected until the end of the term for which they are chosen, when again the people perform the sovereign act of electing their successors, and often incidentally express their approval or disapproval of their acts.

But these sovereign people do not claim unlimited or absolute power. They have chosen a constitution under which they act, as the supreme law of the land, under which even the minority of the people are protected. While this constitution may be changed by certain action prescribed therein, which requires considerable more than a simple majority of the people or the states, yet it enunciates principles of liberty which are inconsistent with any change that will permit the state in all its sovereign power to coerce a single sovereign element in relation to certain matters ; in other words, it asserts the doctrine that there are matters in which the sovereign of the state cannot rightfully coerce the citizen. According to the American idea of the state or sovereignty, the sovereign of John Austin does not exist on this side of the Atlantic. It may be asked if we do not accept the idea of sovereignty which such definitions as John Austin and Hobbs and Betham have given to it, why We do not abandon the word entirely and substitute some other in its place to express the idea that we now convey by the term sovereigptity. My only answer would be that this term is as expressive as any that CQuId be invented for the idea, as we understand it in America, of that inherent power within the state by which are exercised the prerogatives and functions of a state.

No attempt to define sovereignty has seemed to me to be adequate, and I will not attempt to fix its limits. It is inherent in the state. No

26 wosjj)

part of the state is independent of it or superior to it.