A Half Century of International Problems:. a Lawyer’S Views 9780231877008

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A H A L F C E N T U R Y OF INTERNATIONAL A LAWYER'S VIEWS

PROBLEMS:

FREDERIC R . COUDERT,

from a painting by Albert Smith, 19$1

A

Half Century of INTERNATIONAL PROBLEMS:

BY F R E D E R I C R. C O U D E R T EDITED WITH

BY AN

ALLAN

NEVINS

INTRODUCTION

BY P H I L I P C. J E S S U P

NEW YORK

COLUMBIA UNIVERSITY PRESS 1954

COPYRIGHT I 9 5 4 , COLUMBIA UNIVERSITY PRESS, N E W

YORK

PUBLISHED IN GREAT BRITAIN, CANADA, INDIA, AND PAKISTAN B Y GEOFFREY CUMBERLEGE OXFORD UNIVERSITY PRESS: LONDON, TORONTO, B O M B A Y , AND KARACHI MANUFACTURED tN THE UNITED STATES OF AMERICA

LIBRARY OF CONGRESS CATALOG CARD N U M B E R :

$4-7787

To My Three Sons FREDERIC R.,

JR.

FERDINAND and ALEXIS

The Present Couiert Brothers

Introduction

T

HE CAREER of a successful practicing lawyer in N e w York City, even though he is not an officeholder appearing in the headlines of the daily press, is likely to touch many facets of American public life. When his literary and philosophical interests are broad and he possesses a charming wit, and when his practice and sense of public duty call him to deal with great issues of his time, his writings make good reading. This volume contains occasional papers of the senior partner of Coudert Brothers, the well-known New York law firm which can now celebrate a century of legal work. The Frederic René Coudert who is the author of these papers is the second of three of that name in the firm which his father founded, with which he has been associated for sixty years, and of which three sons are also partners. The experiences of one who has had so prominent and successful a life at the Bar are a part of American history. Appropriately, the historical setting and significance of the speeches, articles, and letters here collected are brought out in editorial introductions by Professor Allan Nevins at the beginning of each of the seven sections of the book. Air. Coudert is widely known as an international lawyer— a member of the Institut de Droit International and a past president of the American Society of International Law. In beginning an address before the International Law Association in 1927, Mr. Coudert, in typical vein, said: "It is a rather serious charge to be told that one is an international lawyer. When another lawyer says that to me in a public place, I feel that he is aiming to get away with some of my

viii

INTRODUCTION

best domestic clients." Nevertheless, one does not hesitate to repeat the "charge" (equally applicable to Mr. Coudert's father), noting that this volume reveals also the constitutional, and, if you will, the "domestic" lawyer. While still a student in the Columbia School of Law, Mr. Coudert accompanied his father to Paris where they took part in the presentation of the case of the United States in the Bering Sea fur seal arbitration with Great Britain. That was an Olympian period, and the young law student heard James C. Carter roll out his historical and philosophical legal argument through the course of eight days. Mr. Coudert's reminiscences of this leader of the American Bar are included in this volume. This was Mr. Coudert's first introduction to international law in the courts, but when, at the age of twenty-six, he argued his first cases in the Supreme Court of the United States, the matters involved included consular privileges and, in the leading case of Underbill v. Hernandez, questions of recognition, de facto governments, and the acts of state doctrine. Fifteen years later he was again to argue in the same court in favor of a broad construction of consular rights under treaties in another muchcited case—Rocca v. Thompson. In 1917, the Supreme Court decided in favor of his clients, the British owners of the ship Appam which had been taken as prize b y the Germans and brought into Hampton Roads—another cause célèbre. It was at this latter time that Mr. Coudert was counsel to the British Embassy in Washington, advising on the multitude of legal problems which clouded British-American relations during the period of American neutrality from 1914 to 1917. These legal services were rendered with the full approval of Secretary of State Lansing and Frank Polk, Counsellor of the State Department, both close friends of Mr. Coudert. One of the fascinating items in this book is

INTRODUCTION

ix

the hitherto unpublished letter from Coudert to Polk on September 28, 1915. Here the problems of British interference with neutral American ships and cargoes are revealed in terms of Mr. Coudert's discussions in London and Paris with the statesmen controlling the policies of the Allies. T h e cases were irritating and President Wilson was irritated, but Polk and Coudert worked together to find adjustments which would avoid any serious breach between the t w o English-speaking democracies and at the same time would not sacrifice the important interests of either. Mr. Coudert was able to point out that the American precedents during our Civil W a r weakened our legal position in protesting to the British and, in practical terms, to suggest economic measures which reconciled the demands of American cotton interests with the belligerent necessities of Great Britain. These were exacting duties regarding matters of great moment, calling for broad knowledge of the international law of prize, as well as tact and skill in negotiation. It was his desire, as he said in his letter to Mr. Polk, "to be a buffer between the State Department and the Allied Governments and to absorb as much of the shock as possible." T h e y were congenial tasks, since Mr. Coudert, although a Wilson Democrat, was one of those who was impatient with Wilsonian neutrality. He toured the country speaking on behalf of the Allies. W i t h Henry L. Stimson and others he went on the stump for preparedness as a speaker for the National Security League. Naturally, as the war was coming toward its close he was in favor of the League of Nations and active in the League to Enforce Peace. These were public duties, but his law practice was also demanding. In 1925 he won another case in the Supreme Court for his British government clients, this time representing the British Public Trustee in an alien property case. Mr. Justice Holmes, in delivering the opinion of the Court, sus-

X

INTRODUCTION

tained Mr. Coudert's argument that shares of stock have a situs where the certificates are found. In writing about this case later in the American Journal of International Law, Mr. Coudert noted that an interesting aspect of the case was that the British Government voluntarily appeared and submitted its claim to the courts of the United States, thus demonstrating "the confidence which the English-speaking people wisely and properly have in the judicial disposition of international controversies by the highest courts of the respective nations." This observation might well be taken to heart at a time when governments, practitioners, and scholars are concerned with re-examining the bases for sovereign immunity. There were other governmental clients as well, including France, Belgium, Italy, and the Czarist Russian Government. For the Russian Government, Mr. Coudert again won in the leading case of The State of Russia v. Lehigh Valley Railroad Co., establishing the Russian claim to more than a million and a half dollars for damages sustained in the Black Tom explosion. This case was started in 1918 in the name of "The Russian Government." Faced with the changes consequent upon the Bolshevik Revolution, Coudert Brothers moved to change the name to "The State of Russia" which had been represented in Washington by Ambassador Boris Bakhmetieff, who remained a lifelong close personal friend of Mr. Coudert's. The key to winning the case, and the reason for its abiding legal interest is found in Mr. Coudert's persuading the court to accept the distinction between a "state" and its "government." In elaborating this argument he drew upon the teachings of Professor John W. Burgess, founder of the Faculty of Political Science at Columbia University, where, be it noted, Mr. Coudert also took a Ph.D. in 1894. There was an international flavor also to the great constitutional issues which Mr. Coudert argued in the Supreme Court in the famous Insular Cases. During the Spanish-

INTRODUCTION

xi

American War, Volunteer First Lieutenant Frederic R. Coudert found himself in command of his troop, due to the illness of his Captain, in the disease-ridden camps. He observed at first-hand the sorry condition of the islanders under Spanish rule, and this gave him a strong personal interest in the future of the Spanish islands which we acquired at the end of the war. The setting of these cases and the constitutional problems involved are described in Professor Nevins' editorial note and in Mr. Coudert's article and need not be repeated here. It may be noted, however, that Mr. Coudert argued these cases in the Supreme Court as senior counsel at the age of twenty-eight with a contemporary of his father's as junior counsel and that his brief is the only one selected for printing in the one hundred eighty-second volume of the Supreme Court Reports, which is filled almost entirely with the reports of the Insular Cases. There were later cases, too, in which he was counsel, involving the status of Hawaii and the Philippines. An international legal practice is not confined to great questions of state and high governmental policies but is apt to be filled with practical questions of individual rights which the American lawyer characterizes as "conflict of laws" and which his European colleague is accustomed to label "private international law." Coudert Brothers had first opened an office in Paris in 1879 and the firm was constantly retained in cases involving questions of French and American private law. As the reader of the following pages will see, Mr. Coudert was at home with French legal concepts, and this aspect of his practice was one of his additional ties with France, which decorated him as Commander of the Legion of Honor. He also is an Officer of the Crown of Belgium. It was not only in court that he argued but also from the platform and in print before the bar of public opinion. The range of subjects which interested him as illustrated in this

xii

INTRODUCTION

book and in an earlier volume, Certainty and Justice, published in 1913, is wide indeed. As a resident of Oyster Bay, Long Island, he had a personal as well as academic interest in the question of property rights along the shore between high and low tide, but he writes about these questions in broad historical terms in an analysis of a "perversion of stare decisis." He is always interested in seeing how great legal oaks grow from small acorns of clients' business, as one of his epochal "insular cases" involved a suit for only $60.00. He was interested in the functioning of the judiciary and in maintaining a high standard on the Bench and at the Bar, but he did not agree with either of the Roosevelts in their approaches to the correction of what seemed to them judicial evils. Perhaps naturally reflecting an interest developed in that early time in Paris during the Bering Sea Arbitration, he supported moves for the conclusion of arbitration treaties. This volume includes interesting letters on this subject from Admiral Mahan and John Bassett Moore. N o selection from the large product of a facile pen and tongue could illustrate all of the author's activities. If these introductory words overstress Mr. Coudert's international interests and accomplishments, the present writer can only plead guilty that he too is called an international lawyer. It is proper to point out, however, that Mr. Coudert's career as an active barrister begins with that new widened horizon of the United States in world affairs which opened up after the Spanish-American W a r . International questions, like personal contacts across the oceans, were being raised year in, year out. Many of the leaders of the American Bar were called upon to serve in matters international—Mr. Coudert's father, James C. Carter, Joseph H. Choate, Elihu Root, John W . Davis, Frank Polk, Henry L. Stimson, and many others. Mr. Coudert knew them all, many as contemporaries and friends.

INTRODUCTION

xiii

"It is the fate of the lawyer," Mr. Coudert wrote in his reminiscences of James C. Carter, "to leave little impression upon history unless he chances to have occupied a prominent position in the world of politics or government." This may be true of history in the text books with their names of battles and the generals who fought them, with their lists of shifting kingdoms and republics and the names of their kings and presidents and the advisers who guided them. But history in its full sense is much more than this. As this book goes to press, Columbia University, of which Mr. Coudert has been an active alumnus and a trustee for over forty years, is celebrating its bicentennial. Its convocations are evoking the history of the mind and spirit of civilized man through the centuries. It is an appropriate time for the recording in history of these writings of Frederic René Coudert. PHILIP c . J E S S U P

New York City September, 1954

Acknowledgment

I

to thank my partner Mr. Mahlon B. Doing, and also Mr. Allen Russell of our office, and my secretary, Miss Elizabeth Friel, for their kind assistance in the editing and proofreading of the manuscript, and in the addition of footnotes and in other details connected with the preparation of this book. WISH

F.R.C.

Contents

Introduction, by Philip C. Jessup

vii

I THE LAW

IN AN ERA OF CHANGE

• 3

Inflexible Law in a Changing Society

6

The Regulation of Corporations

24

Riparian Rights: a Perversion of Stare Decisis

40

The Eighteenth Amendment: Making Law Unworkable 6-j Some Reminiscences of James C. Carter

71

II PROBLEMS OF AN AMERICAN E M P I R E • 8 1

Our New Peoples: Citizens, Subjects, Nationals, or Aliens 84 Practical Legal Difficulties Incident to Transfers of Sovereignty Following the Spanish War

108

III JUDICIAL REFORM: TRUE AND FALSE • 1 3 7

The Crisis of the Law and Professional Incompetency

140

The Supreme Court and the "Square Deal"

153

The Proposed Judiciary Reorganization Bill

158

xviii

CONTENTS IV ARBITRATION, I N T E R N A T I O N A L AND WORLD P E A C E •

LAW,

167

1. The Arbitration Treaties with Great Britain and France

170

2. Letter on the Demonstration against the Arbitration Treaties

181

3. Correspondence of A. T. Mahan and John Bassett Moore on International Arbitration

183

4. The Sanction of International Law

189

5. The Appam Case

196 V

DANGERS

AND

DUTIES

OF NEUTRAL

1914-1917

•

AMERICA:

213

1. The Duty of Preparedness for War

216

2. Neutrality: Its Permanent Difficulties and Present Perils

222

3. Letter to Frank L. Polk on the European Situation

242

4. The Role of America in the International Situation

255

j. Statement on the Resignation of Secretary of War Garrison, February 11, 1916

265

6. How Can the United States Best Maintain the Rights of Her Citizens?

266 VI

THE

LEAGUE

OF NATIONS:

ITS "GERM

OF VITALITY"

•

277

1. The League Basis for a Better World System

279

2. The Proposed Trial of William II

284

3. "League-O-Phobia":

286

a Recent Malady

CONTENTS

XIX

4. If International j. The

Co-operation

Fails, War Is Certain

295

League Has Not Failed

300

VII AMERICA, 1. The

TOTALITARIAN

Neutrality

Act

2. World

Organization

3. Should

the Neutrality

WAR, AND WORLD ORDER •

of ¡93$: a Victory

for Peace Still Essential

5. The

Atlantic

Required

to

326 Vindicate

Law Charter

331 and the Need

for a New

World

Organization 6. Civilization Order

312 323

Law Be Amended?

4. A Stand against Aggression International

for Isolation

309

at the Crossroads:

3 41 World

Order

or

Jungle 349

A HALF C E N T U R Y OF INTERNATIONAL A LAWYER'S VIEWS

PROBLEMS:

I THE LAW IN AN ERA OF CHANGE

" L A W HAS NOT BEEN LOGIC," ran the famous statement of Justice Holmes; "it has been experience" In other words, legal principles have but a restricted validity; they alter as the community environment alters, and grow as society grows; and the legal logic which fitted a rural America, highly individualistic, ceased to fit an urban and industrialized America, highly organized. The old maxim that mankind is best served by "a government of laws and not of men," a phrase which the fathers of the republic borrowed from Harrington's Oceana, embodied a concept which was perfectly sound insofar as it rtded out arbitrary action by a despot or an irresponsible police officer. It was unsound, however, if inter-

4

THE LAW I X AX ERA OF CHANGE

preted to mean that cast-iron legal principles and immutable codes could be applied to a multifariously active and rapidly changing society. Laiv must have a healthy evolutionary growth related to the organic growth of the community. Holmes, Pound, Cardozo, Wigmore and others have long since made this a truism. But the question of the extent to which law should be fixed in principles and codes, and the extent to which it must be kept adaptable and mutable, continues to offer ground for careful debate. In the sheaf of papers in this section, Mr. Coudert considers the problem of the proper balance between certainty and growth in the law. The essay "Inflexible Law in a Changing Society" shows how the age-old desire for legal uniformity and certainty, embodied in the Anglo-American rule of stare decisis and in the French and German codes, conflicts with the demands of modern society for a perpetual readjustment of law. Mr. Coudert points out that the laws cannot possibly be made fixed and certain on subjects respecting which (,labor-capital relations, for example) the public mind remains uncertain. In the succeeding paper on "The Regulation of Corporations," written at the height of Theodore Roosevelt's attack on the trusts, Mr. Coudert takes up the complex questions raised by varying interpretations of the Commerce Clause, and by the claims of the so-called Beef Trust and Tobacco Trust to certain immunities and privileges under the Due Process Clause. He is for wide latitude in the evolutionary growth of law. Interpretation, he points out, "is constantly shifting with the changes in view in the courts which reflect public opinion." The essay on "Riparian Rights: A Perversion of Stare Decisis" explains, with a number of interesting examples but with special reference to the long influence of the early English decision in the Philpot Case, how too earnest an attempt to freeze the law into a fixed principle may result in great in-

THE LAW IN AN ERA OF CHANGE

5

justice. The paper entitled "The Eighteenth Amendment: Making Law Unworkable" points out the folly of trying to write into fundamental law principles and prohibitions which a great part of society simply will not accept. Finally, the delightful study of the character and methods of the great attorney fames C. Carter emphasizes Mr. Couderfs interest in the substance of law, as distinguished from its technicalities, and his conviction that law should in the long run conform to social usage and to majority opinion.

1 Inflexible Law in a Changing Society FROM THE Y A L E L A W MAY

JOURNAL

1905 *

T

HE LAWYER in advising his clients is really in great measure bound to assume the role of a prophet. When he tells them what he thinks the law is, they cannot be certain that his prediction will come true until it has been upheld by the highest appellate court in the land. If he is not so fortunate as to obtain a favorable decision he must console himself with the thought that "evejitus arbiter stultorum," and hope that his client is a philosopher. Unlike the prophet, however, he has no unfailing illumination from above, but must content himself with obtaining what light he can from the law reports, endeavoring from the past to judge the future. He is thus little more than an expert guesser. That delightful writer and cogent thinker, Buckle, has said that a knowledge of history is valuable in that it furnishes us a measure by which we may predict the future from the past. This is all that the lawyer can do by examining past decisions. There is in all modern states today a general conflict between certainty in the law and concrete justice in its application to particular cases; in other words, between the effort to have a general rule everywhere equally applicable to all cases at all times and the effort to reach what may seem to be con* This article originally appeared under the title "Certainty and Justice and Constitutional Amendment." Portions of it were reprinted in Mr. Coudert's book Certainty and Justice, published by D. Appleton and Company (now Appleton-Century-Crofts, Inc.), 1913.

INFLEXIBLE LAW IN A CHANGING SOCIETY

7

crete right dealing between the parties at bar upon the particular facts in each case. In actual practice the pendulum swings first one way and then the other. The social necessity for stability in the law is unquestioned. Law is necessarily a rule of action, and unless a court decides cases according to some cohesive plan or definite rules, the justice administered is scarcely deserving of the name of law however greatly it may fall in with the ethical notions of the community as regards any particular case. On the other hand, when rules become so fixed and rigid that they are difficult or impossible to change, the law is out of touch with prevailing moral ideas, which like all other ideas are constantly progressing; the law thus necessarily becomes a clog upon national development, an incentive to revolutionary reform. Among semi-civilized people, absolute adhesion to the letter of the law is the prevailing system. In the ancient Roman law of the twelve tables, contracts in order to have any validity had to be made in specific formulae, or by the repetition of certain particular words. It was not the substance of the contract relation—that is to say, the meeting of the minds and the consent of the parties as to the subject-matter of the contract—that was looked to, but the formalities by which that meeting was evidenced. The sanctity attached to the use of a seal attests the mystic value of forms among primitive peoples. In the ancient common law, before the growth of the equitable jurisdiction of the chancery, we see the same condition. It is illustrated by the story of the customer who, going into a silk merchant's, asked the merchant the cost of enough silk to go from ear to ear, and the merchant immediately named a price. Thereupon the customer, lifting his cap, showed him the place where one ear should be,

8

THE LAW IN AN ERA OF CHANGE

and pointing to his remaining ear, said: " M y other ear is at Newgate jail." As the ancient story goes, the merchant was forced to give him several hundred yards of silk for the price of a few inches. The same story is told in different forms and is apparently an Indo-European legal legend. Again we find a literal adherence to the letter of the contract in the blacksmith case. An ignorant individual offered to give a blacksmith two pence for the first nail, four pence for the second and eight pence for the third, and so forth. When the four feet were shod he found that it had cost him a number of pounds, owing to his absolute ignorance of the laws of geometrical progression. Nevertheless, he was held to the letter of his bargain. Again, in the medieval world, trial by ordeal supplanted to a great degree the rational methods of determining facts. There was no doubt felt of the guilt of the man whose feet were burned by walking on red-hot iron, and this method had the advantage of leaving open no questions for dispute. But with the growth of modern civilization came the necessity for applying to cases a general ethical standard to some degree at least in accordance with that of the age. Nevertheless a fair degree of certainty is a necessity in every system of law; as a consequence, the common law doctrine of stare decisis was gradually evolved by the English law courts as one mode of bringing about some sort of coherence in the justice administered and in formulating that justice into rules of law. That the doctrine is an old one does not admit of doubt and modern research seems to indicate that it was first vaguely adumbrated as far back as the fourteenth century. The truth is that the doctrine is founded upon one of the peculiarities of human nature which in its ultimate analysis is based upon the imitative faculty in man. The mass of men will naturally follow in a beaten track, rather than branch out into new and untrodden ways, and the courts

I N F L E X I B L E L A W IN A CHANGING

SOCIETY

9

naturally fell into the habit of following precedent, just as merchants fall into the habit of following certain usages of trade which after a time harden into customs. In this way the judges by making a line of uniform decisions on any question create a judicial custom which in its turn acquires, almost unconsciously, the force of law. That the English courts have gone much farther than our own in upholding the dignity of the doctrine of stare decisis may be easily illustrated by one or two prominent instances. In 1843, the now famous case of Queen v. Millis came up before the House of Lords. 1 T h e case was one of a prosecution for bigamy. T h e question there involved was as to whether a marriage contracted in Ireland without the presence of an ordained clergyman or priest of the Church of England was valid. T h e Marriage A c t not applying there, the common law alone governed. It was contended that in England the presence of a priest had been unnecessary to such marriage by the rule of the canon law prevailing throughout Western Christendom up to the time of the decree of the Council of Trent, which, owing to the separation of the Church of England from the Roman Catholic Church, had not come into force there. T h e House of Lords, however, decided from one or t w o precedents, which historic research has now discovered were erroneously interpreted, that the law of England in this particular had differed from that of the rest of Western Europe and that a marriage without the presence of such priest was invalid. The decision was reached by a divided court, the members of that tribunal standing three to three, the form of the question, however, being such that the decision was necessarily in favor of the invalidity of the marriage. In 1861 this historically erroneous decision, reached by an equally divided court, was brought in question before the 1

10 CI. a n d Fin. 534 (1844).

IO

THE LAW IN AN ERA OF CHANGE

same tribunal in the case of Beemish v. Bearish.2 The very same questions being again presented, a majority, at least, of the judges were of the opinion that the decision of Queen v. Millis was reached upon a false historical basis and that the precedents adduced from the early English law to support that decision were misunderstood by the court. Lord Campbell himself took that view. Nevertheless the court felt bound to follow that case and decided, contrary to the historic fact, that a marriage without the presence of a clergyman of the Church of England was and always had been invalid at the common law. In rendering this decision, Lord Campbell said that he felt himself bound by the doctrine of stare decisis and that to depart therefrom would be a usurpation upon the part of the House of Lords. His theory was that the law once laid down by that tribunal became the law of the land, as binding upon the tribunal itself as upon every other subject and changeable only by the supreme authority of Parliament. This case contains the strongest utterances that I have been able to find upholding the absolute obligation of the rule of stare decisis. Had the present case been brought here by writ of error previously to the decision of this House in the year 1844 in the case of Queen v. Millis, I should not have hesitated in advising your Lordships to affirm the judgment in favor of the validity of the marriage and the legitimacy of the respondent.

After giving his reasons for believing that a marriage without the presence of a priest was valid at the common law, he continues: However it must now be considered as having been determined by this House that there could never have been a valid marriage in England before the Reformation, without the presence of a priest episcopally ordained, or afterward without the presence of = 9 H.L. 275 ( i 8 6 0 .

INFLEXIBLE LAW IN A CHANGING SOCIETY

II

a priest or of a deacon . . . My Lords, the decision in the case of the Queen v. Millis that unless a priest especially ordained was present at the marriage ceremony the marriage was null and void and the children of the marriage were illegitimate, seemed to me so unsatisfactory, that I deemed it my duty to resort to the extraordinary proceeding of entering a protest against it on your Lordship's journal. And yet he continues: But it is my duty to say that your Lordships are bound by this decision as much as if it had been pronounced nemme dissentiente and that the rule of law which your Lordships lay down as the ground of your judgment, sitting judicially, as the last and Supreme Court of Appeal for this Empire, must be taken for law till altered by an act of Parliament agreed to by the Commons and the Crown as well as by your Lordships. The law laid down as your ratio decidendi being clearly binding on all inferior tribunals and on all the rest of the Queen's subjects, if it were not considered as equally binding upon your Lordships, this House would be arrogating to itself the right of altering the law and legislating by its own separate authority. The ardent law reformer, Bentham, in his dread of judicial encroachment could hardly have gone farther in limiting the power of appellate courts. It must be remembered, however, that even in England that useful and somewhat modern instrument—the distinction—is not unknown and the results of strict adherence to stare decisis may in many cases be escaped or mitigated by the use of that now highly developed weapon, even where to the ordinary mind the distinction would not seem to involve any appreciable difference. It is a rather curious thing that Lord Campbell's views, which at the time of their utterance seemed to be in every respect most conservative, were enunciated in almost the same language by Mr. William J. Bryan in his campaign as candi-

12

T H E L A W IN AN ERA OF CHANGE

date of the Democratic Party f o r the Presidency in 1896. A t that time he was generally looked upon as a radical, if nothing worse, and his views as to the Supreme Court were the subject of most severe criticisms. I do not intend to comment upon their wisdom or unwisdom, but his underlying view, as I understand it, was that, the Supreme Court once having passed upon a question, its decision became the law of the land and was binding upon that august tribunal as well as upon all other American citizens. That view, which to many seemed so startling as to savor of revolution, in any event had in it nothing of novelty, and if Mr. Bryan did not cite the authority of Lord Campbell it was probably because he had overlooked it. Whether the doctrine as enunciated by him would have sounded less harsh had it been backed b y the authority of that great name, it is impossible to say. In the heat of political conflict it might have mattered little. It is a significant but not unusual fact, however, that the same doctrine should be considered as overconservative or as overradical, dependent upon the position of the person announcing it and the circumstances of its announcement. Mr. Justice Holmes, one of the greatest students of the development of English law, adopts what would seem to be a very different viewpoint. He believes the judge-made law to be a slow and steady growth which must adapt itself to present needs and present necessities, and that the formal rules of the syllogism do not and should not be allowed to fetter the judges in reaching a result compatible with present ethical notions and sound public policy. On the other hand, in substance the growth of the law is legislative. And this in a deeper sense than that what the courts declare to have always been the law is in fact new. It is legislative in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considera-

INFLEXIBLE LAW IN A CHANGING SOCIETY

«3

dons of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis. And as the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that, when ancient rules maintain themselves in the way that has been and will be shown in this book, new reasons more fitted to the time have been found for them, and that they gradually receive a new content, and at last a new form, from the grounds to which they have been transplanted.3 This latter view would seem to be the one more generally prevalent in the United States. T h e highest courts, although expressing great regard f o r the doctrine of stare decisis, do not hesitate to overrule prior decisions upon the ground that they were erroneously rendered, as the Supreme Court itself has done upon several occasions, notably in the Legal Tender,4 the Income Tax, 6 and the Passenger 8 cases. The soundness of this latter view depends upon how far conformity to present standards of justice is more important than certainty as to what the law actually is. It would surely be better if more cases were overruled directly than by the indirect method of the distinction. By the indirect method a case once deemed to be law is gradually so honeycombed with exceptions and distinctions that after a certain number of years it finally collapses—in the meanwhile, however, like a dangerous derelict, spreading 3

Holmes, The Common Law (Boston: Little, Brown, and Co., 1881), pp. 35-36. 4 Knox v. Lee, Parker v. Davis, 12 Wall. 457 (U.S. 1870). 5 Pollock v. Farmer's Loan and Trust Co., 157 U.S. 429; rehearing, 158 U.S. 601 (1895). 6 Baltimore & Ohio Southwestern Ry. Co. v. Voigt, 176 U.S. 498 (1900).

H

T H E LAW IN AN ERA OF CHANGE

confusion among litigants, and consternation, real or feigned, among lawyers. It is to be deprecated that in many cases respect for ula chose jugée" should not allow the case to be directly overruled. In the long run it may well be questioned whether the maintenance or the dignity of the doctrine of stare decisis profits by the respect apparently paid to it through a resort to distinctions that do not distinguish. On the other hand, a strict adherence to the adjudged cases would prevent all progress in the law, as has been pointed out by Mr. Justice Matthews in the famous case of Hurtado v. California,'1 and would result in a rigidity incompatible with social progress: [To] hold that such a characteristic is essential to due process of law, would be to deny every quality of law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians.8 That delightful and most erudite old writer, Montaigne, gives an instance of how far false respect for a judicial decision may be carried. He says that he heard of a case occurring in his time in which a thief, having been convicted by the court of a certain French province, was condemned to death. While awaiting execution the judges of a neighboring province sent word to the judges of the tribunal that had condemned the supposed culprit, that the real culprit had been found, had confessed his guilt and was about to be punished. The judges of the first court held solemn deliberation on the question as to whether justice required that the innocent man, adjudged guilty, should be freed or whether respect for "la chose jugée" did not require that the court 7

n o U.S. 516 ( 1 8 8 4 ) .

8

n o U.S., at p. J 2 9 .

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»5

should proceed with the execution of the sentence. The latter view prevailed. The dignity of the tribunal was thus sustained by the prompt and solemn execution of the legally adjudged guilty but in fact innocent victim. The truth is that the courts are constantly oscillating between a desire for certainty on the one hand and a desire for flexibility and conformity to present social standards upon the other. It is impossible that in a progressive society the law should be absolutely certain; it is equally impossible that the courts should render decisions conforming to the prevailing notions of equity without thereby causing a considerable degree of uncertainty, owing to the constant fluctuations in moral standards and their application to new and unforeseen conditions. New ideas are often if not always due to economic changes, and many views regarding natural rights or individual liberty which were held fundamental in the last century sometimes find little support in the public opinion of the twentieth, by reason of changed social and economic conditions. The rights of the individual were once opposed to those of the state alone. They are now opposed not only to the state, but also to great aggregates of wealth in corporate form possessing in a great degree public powers. The rules evolved before the rise of corporations as the main factors in the business world are not always applicable to present conditions. When a series of questions has finally become settled, such as the law relating to partnership or negotiable instruments, it is because that particular branch of business has reached for the time being at least an ultimate form, and we have certainty in law because we have fixity in business custom and opinion. It has been happily said that the sense of equity of one generation is generally the law of the next, but this very fact

i6

T H E L A W IN A N ERA OF CHANGE

involves a slow process of change and adaptation resulting in consequent uncertainty. There is much criticism at the Bar at the present time of the growing uncertainty of law as enunciated in judicial decisions; panaceas of all kinds are suggested by zealous and sometimes intelligent men, but the law reformer is a dangerous animal and one calculated often to do infinite mischief. He necessarily believes himself to contain more concentrated wisdom than all the generations of lawyers and judges who have gone before, and actual experience has proved that his self-valuation is not infrequently an overappraisal. It is perhaps not unprofitable to inquire whether the people of the continent of Europe are so much better off than ourselves in regard to certainty in their law. An extended attempt at comparison on this point would involve work far beyond the scope of this article. A few reflections, however, upon the continental method may not be without interest. The fear of the uncertainty of judge-made law and the usurpation of courts has been even more prevalent in Europe than in America. This fear is well illustrated by what took place at the time of the promulgation of the Prussian Code of 1794. It was understood, and the judges were instructed, that if a case of first impression or a case not absolutely covered by the letter of the code should arise, they were to refer to the Prussian Legislative Council for decision, which decision would, of course, have taken legislative form. Some cases arose in this way and were referred to the council, which was an active body whose time was taken up with other matters. The cases thus sent to them from the courts were quietly dropped and the judges were informed that they would have to proceed as best they could without legislation for each particular case, and thus that attempt to curtail possible judicial encroachment failed utterly.

INFLEXIBLE LAW IN A CHANGING SOCIETY

>7

T h e French law is supposed not to recognize the authority of adjudged cases, but in fact the result reached is very similar to that in England and America. The Court of Cassation was established for the purpose of unifying judgemade law, which had been made uniform as far as legislation could effect it by the Code Napoleon. T h e Court of Cassation has jurisdiction over all cases coming up from the various courts of appeal, of which there are some twenty-six in France and, by the Statute of 1837, the decisions of the Court of Cassation were made authoritative, so that they had to be followed by all courts of appeal. This statute was made necessary by the hopeless conflicts which had arisen between the various courts of appeal, and the uncertainty thus engendered was so great as to call for radical remedy. But in addition to the decisions of the Court of Cassation, the French judges in the courts of appeal naturally desire to have a certain amount of uniformity in their decisions and therefore where one or two similar decisions are rendered they are almost invariably followed and a judicial usage on the subject is thus established much as in England or America. T h e only practical difference would seem to be that the French courts will not hesitate to overrule a case which they believe has become antiquated or was erroneously decided originally, and thus they do not resort to the method of the distinction which with us not infrequently accomplishes the same result through fiction. As a consequence the French lawyer is confronted with a great number of reports, the number of reported opinions in France being perhaps greater than that of any one state of the Union. The Code Napoleon left certain great gaps which could only be filled in b y legislation or by judge-made law. As commercial corporations had scarcely begun to develop at the time of the adoption of the Code, there was almost nothing in that body of legislation to cope with the modern conditions

i8

THE LAW IN AN ERA OF CHANGE

which grew up thereafter, and hence under the Second Empire the void had to be filled and a detailed law of corporations enacted. In many instances provisions of the Code have been in effect wholly repealed by judicial decisions so that a directly opposite result from that desired by the codifiers has been in fact reached. Trusts were abolished by the Code and yet have been to a great extent revived by the courts. State annuities were not attachable under the French law, but by a long line of decisions a result has been reached which in fact makes them attachable for debt, and other instances to the same effect might be cited. It must also be remembered that the Code, admirable as it is by reason of its lucidity, due largely, if not wholly, to the French language so wonderfully adapted to the expression of clear thought, is now becoming in many respects antiquated. A movement is on foot in France to change the Code in essential particulars. T h e nation feels that its system of law has been more or less outgrown and finds itself in the condition of a boy who has outgrown his youthful clothes. T h e system of French law is criticized as one incompatible with the notions of today as belonging in many respects to a social system which has in great measure passed away. The French Minister of Justice at the recent celebration of the centenary of the "Code Civil," used the following significant language: The Code Civil did not and could not foresee everything. It would be puerile to deny that it needs revision, for in fact Parliament does revise it. Already many drafts of laws on corporations and insurance are presented for enactment into legislation which really present the appearance of special codes, and in addition the work of making a Code of Labor is progressing. Thus the great voids in the Civil Code are being filled in. Moreover, judicial decisions reveal from day to day the new needs of society and apply the will of the nation to particular

INFLEXIBLE LAW IN A CHANGING SOCIETY

'9

cases, disclose new formulae and reveal new sources of law by providing new sources of light. I would ask to have a great commission appointed to compare our Civil Code with those of other peoples, to note the differences, to analyze the solutions of the new problems adopted by foreign legislations, and to study the solutions reached by our neighbors, in order that we may profit from the work of all, as all have profited from the work of the French jurists. The more the intellectual domain of humanity is enlarged, the more the development of industry and of science diversify forms of production and forms of property. The greater the political ascendency of the proletariat tends to cause a recognition by society of new rights and of contracts heretofore unknown, the less can it be pretended that a code can contain and hem in the powerful movements of a nation's life. What then is the use of our re-making our Code from the beginning? It never prevented changes in the law, nor did it ever paralyze the law. It can be adapted to every change and seems like a well-conceived plan where every degree of progress may naturally be placed under its proper classification. [The italics are the writer's.] It is thus very doubtful whether the French law is any more certain than our own. If ours be more uncertain we are inclined to believe that it is because economic changes here have come faster than in other countries, and greater pressure has been put upon the courts to decide cases arising out of novel business situations. 9 T h e fact is that the two systems, English and Continental, while founded upon different theoretical bases are tending in fact to reach very much the same results in very much the same way. Law reformers have been for a long time suggesting the codification of our law. As far as greater certainty is Since the above was written, the French Civil Code has been amended notably in the fields of family law and the legal status of women. Extensive labor and public utility legislation supplementing the Code has also been enacted. [Ed. note] 9

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concerned, I do not see any advantage to be derived from codification. The objections to codification lie in the difficulties of obtaining from a legislature a good code which is not in constant danger of amendment for the purpose of meeting specific cases. That monstrum horrendum, the Code of Civil Procedure of New York, is so recent and lamentable a monument of the failure of legislative attempts at codification that it is not necessary to refer to it in detail.10 The foreign codes have the advantage of a fixed and settled terminology derived from the Roman law. They were made by experts and are comparatively little subject to legislative change. In addition it must be remembered that the making of the Code Napoleon, as well as that of the recent German Code, was due to a desire for uniformity in law rather than of certainty. As Voltaire remarked of old France: "One changed systems of jurisprudence each time one changed his omnibus." Therefore the Code was made for the purpose of giving the nation a national law rather than the obtaining of certainty in any one or more branches of the law. Some of the continental codes are very defective and have hindered legal development. The French Code of Commerce is inferior to the Code Civil in every respect. It shows one of the most marked defects of code law in that it codified commercial usages of the seventeenth century and thus retarded the development of French law in those important particulars. Another objection, and perhaps the main one, to a code, is that even a well-constructed code would help us little in making the law more certain. The general principles or rules on many subjects are pretty well settled and easily stated. The common law of tort, partnership, or negotiable instruments is admirably summed up in various textbooks and can with10 The Code of Civil Procedure was discarded by the N e w York legislature in 1920 in favor of the present Civil Practice Act. [Ed. note]

INFLEXIBLE LAW IN A CHANGING SOCIETY

21

out great difficulty be codified, but that would do little to help us out of our difficulties for the question arising in these branches of the law is not generally what is the rule of law, but which of several rules apply to the facts of the case. T h e divisions that have taken place in our Supreme Court have not been due to common law questions, but to questions arising under various statutes and under the Constitution of the United States, one of the clearest and most admirable of written instruments. As the most familiar instances of this, it is only necessary to cite the Insular cases,11 the Legal Tender cases,12 the Income T a x cases,13 and the Anti-Trust cases.14 In each one of these, the difficulty has been to ascertain whether the law applied to a particular state of facts and if it did apply, which portion of it was applicable. Did the Sherman Act intend to codify the common law? Was it merely declaratory or was it revolutionary? T h e answer must be sought in many opinions extending over a period of some ten years. Such questions cannot be avoided and constantly arise under statutes. And again, should we codify our law, the old decisions would be cited, as an attempt to show what the law was intended to do and we would not get rid of the masses of case law which now so sorely burden and perplex the practitioner. The civil law of Rome grew largely out of commentaries on the Twelve Tables, and it was really the commentators who expressed the law long after the Twelve Tables had 11 DeLima v. Bidwell, 182 U.S. 1 (1901); Goetze v. United States, 182 U.S. 221 (1901); Dooley v. United States, 182 U.S. 222 (1901); Armstrong v. United States, 182 U.S. 243 (1901); Downes v. Bidwell, 182 U.S. 244 (1901). 12 Knox v. Lee, Parker v. Davis, 12 Wall. 457 (U.S. 1870). 13 Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429; rehearing, 158 U.S. 601 (1895). 14 United States v. Joint Traffic Association, 171 U.S. 505 (1898); United States v. Trans-Missouri Freight Association, ¡66 U.S. 290 (1897); United States v. F.. C. Knight Co., 156 U.S. 1 (1895).

22

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ceased to represent the legal views of the time. Justinian endeavored by law to prevent the writing of commentaries on his Code and Napoleon is reported to have exclaimed, when it was announced to him that a commentary on the code had already appeared: " M y code is lost!" There is thus no patent remedy for the situation of legal uncertainty that confronts us. It is due to changing social conditions and the conflict of new ideas with old ones which is now at so acute a stage. Mr. Lea, the distinguished American historian, has said that if you want to know the ideas that dominate a particular age, you must examine its jurisprudence. Perhaps the complex and confused condition of our jurisprudence is a more faithful reflex of the public mind than we realize. Certain great branches of the law have been pretty thoroughly worked out and the ideas of the community thereon crystallized into positive law. Whether they have been codified or are found in the decisions is of little importance. On other great questions, such as the relation of capital to labor and of corporations to the state and the individual, the public mind is in a flux. It will be impossible to get uniformity in this regard until we have some uniformity in opinion, which will then reflect itself through legislation and through judgemade law. The one will be confused and incoherent, the other vacillating and uncertain, until such a time arrives. For the present, reforms in the administration of the law, the selection of able men as judges, the leaving of procedural questions, as has been done in Massachusetts, largely to the regulation of the courts themselves by rules, are all desirable and immediate objects of attainment. But to make the law certain on subjects as to which the community itself is most uncertain is a task that never has yet and never will be accomplished. If the Hindu laws are unchanged and unchangeable, it is because the Hindu himself has not changed and does

I N F L E X I B L E L A W IN A CHANGING SOCIETY

*3

not wish to change his opinions and ideas or the actions which flow from them. When we reach that stage of development the question of certainty and justice will become academic.

2

The Regulation of Corporations ADDRESS BEFORE T H E AMERICAN SOCIAL SCIENCE ASSOCIATION FROM ITS JOURNAL, NO. 4 4 ,

1906

Y

ou CAME expecting to hear the attorney general of this State talk to you about matters you know that he well understands, and you are now informed that you must listen to me upon these same subjects, which you do not know whether I understand, and on which point I am too modest to express an opinion. However, your chagrin cannot be greater than was my own when I learned a few moments ago that I was to take the place of the attorney general who had been so unfortunately detained. The only advantage to you will be that I shall have to confine myself to what the French call a causerie, a talk which has not the formal pomp of a lecture or address, and which you need have no hesitation in interrupting as frequently and as vociferously as you desire. But I feel that I have another advantage in talking of matters relating to sociology. When one is only in the narrow domain of jurisprudence, one has to be reasonably precise, postulate general principles, and draw deductions; but, when in the great realms of sociology, where there are no basic principles, all is haze, mist, and lack of exact knowledge, and one need not betray one's ignorance because, for whatever proposition may be advanced, some authority may be found in the dusty shelves of any library that possesses books on social science. Knowing that the absence of the attorney general is deplored by you as much as by myself, I feel like a

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client of mine who suffered a great misfortune. Wishing to comfort him, I said, " I t is one of the sad incidents of this life of troubles, and many others are also afflicted in the same way"; and he, being a pious man, replied, "Sir, it is to be hoped that that is so." " T h e Regulation of Corporations"—that is a high and pompous title, is it not? And yet the movement that we see going on all around us is not an isolated phenomenon: it is part of a great social movement, world-wide, extending to every department of life, not only from Maine to California, but throughout all Europe, and there can be nothing more utterly irrational than the emotion which many excellent people seem to feel when they discuss this question of corporations. I presume we are not so unfortunate as our brothers on the continent of Europe, who are still agitating questions of religion and civil liberty—controversies calculated to stir the human passions; but when we come to discuss these dry-asdust sociological questions, we manage to throw into them an amount of sentiment which, even if we do not feel, we think we ought to show when we talk of corporations. W e are apt to think, when we talk about the iniquities of the Beef Trust, that we are getting square with our butcher whose beef we did not like last week. But this question of corporations is not a new one. If it is not as old as the hills, it is yet very old, and the corporations in the old days were regulated much more than they are now. Thus, in attempting to regulate them and supervise them, we are simply going back to an older and possibly wiser system. There has been a movement in the last, I might say, thirty years—in all matters of the history of opinion we cannot be very precise—a movement to supervise and regulate these great aggregations of wealth. W h y should it have begun only thirty years ago? Because up to that time business had not

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T H E LAW IN AN ERA OF CHANGE

developed in this particular way, but had been developed largely on the basis of individualism. The rules of the road, for example, were simple things. "Keep to the right," if you cannot keep out of the farmer's way in any other manner. It is a simple proposition, and even a sociologist could understand it. But inject into that simple bucolic situation a great steam-engine, forty, fifty, or one hundred horsepower, and an engineer of only fifteen days' standing, and the whole situation is changed. Nothing is changed in human nature, nothing is changed in the law, but immediately you have to have a new kind of legislation to put the automobile policeman into being, otherwise the motor engine is attended by slaughter, death, and carnage. There is a change in the situation, which has nothing to do with the fundamental principle as to whether we should regulate or interfere with individual liberty or not. W e need not interfere at all, if the farmer with his plough horse keeps to the right of the road, but we have to interfere if the motor fiend goes ninety miles an hour in the highway. So, I say, the regulation movement of recent years is nothing in the world but a part of the general movement of selfdefense on the part of the community. It is because times have changed so that it is necessary to police the individual who is running madly in his automobile on the public road or stock-jobbing with hundreds of millions. Otherwise, the community must suffer. There was a wise man in England a number of years ago, Jeremy Bentham, the founder of the laissez-faire school. His theory was "the greatest happiness of the greatest number"; and this, in his judgment, involved the letting of the individual alone to work out his own good with as little law as possible. His idea of government was a mere police power to prevent A from physically cutting the throat of B, but having no concern with economic throat-cutting. His theory was

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tremendously well received in England, because conditions were ripe in that part of the world for it. In the first place, the individual was at every step hampered, tied down, and bound by all kinds of ancient and feudal regulations which had nothing to do with the well-being of the community. A short time before Bentham would have been called a revolutionist; but, as he had wealth and position, he calmly formulated his theory in a philosophic way. He explained that what he wanted was not the rights of man in the abstract but merely that the greatest number of individuals should enjoy the greatest happiness, which result might be brought about under the least possible legislation. He therefore met a response from all Englishmen because they were suffering from great abuses and had no other theory under which they could formulate their grievances—the removing from the individual of these fetters. As Bentham says of the England of his day, the farmer sows grain, the partridges come to eat it, the farmer attempts to shoot the partridge, and is taken to jail, where it is decided that he was justly brought there because, although the farmer sows the corn, certain men who sow no corn have a right to shoot partridge. A workman finds his profession or trade overstocked, and he attempts to enter another in which there are not enough workmen, and he is told, "You have not served an apprenticeship at this trade." He replies, "But my own trade is overstocked, and you have not enough workmen." He is told, " T h e common law of England will not permit it, and these laws are sacred," and he goes to the poorhouse. A man goes into another county— there is no work in his county—quite willing to work, and he is told, when he gets there, though they want workmen in that county, that he can not work, because in time he might fall into the poor relief, and that that county does not want to support him, so he is bound to return and be a pauper, whether or not. So it was at that juncture that

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Bentham and John Stuart Mill, the great lights of the school, adopted the doctrine of laissez faire, until the time came when their ideas destroyed the feudal laws and gave the individual economic freedom which helped England to prosper for many years. A professor of sociology said to me some time ago when I told him that I supposed his must be a very laborious profession, indeed, "No, it is not so laborious, because in sociology there are no principles at all, so it is not a very difficult science to teach." As there are no principles in sociology, while it happens that the principle of laissez faire is very good in favor of the man who planted corn and did not wish to have the partridges eat it, it would not work at all if directed against the great railroad or traction companies, because the conditions are different. The principles of laissez faire were very well suited to English society in their time. They became a fetish, and were embodied in Herbert Spencer's Man Versus the State, the last word and best word of the laissezfaire doctrine. It was a good doctrine, which Spencer deduced, of course, both from physical science and the science of life generally as to survival of the fittest and from the idea that, if we were left to the influences of nature, the fittest would survive; but the answer is that the great mass of the people would find themselves unfit in a very short time, and, as the mass make the laws, it is unlikely they would acquiesce. But Mr. Spencer pushed the doctrine to the extreme. He would have pushed it to such an extreme that it would have prevented any legislation to prevent the automobile abuses, because he would have argued that the driver would learn in time that it would hurt his machine to travel at such high speed, and the farmers of the road, when a generation or two of them had been killed, would learn that it would be well for them to become extremely careful, and they would develop into more cautious

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people. It is a good argument, but not one to find ready response in America—outside of automobile circles. Questions of sumptuary legislation come before the courts, and are determined largely by the feelings and opinions of the day. Recently a very interesting instance of that kind came before our Court of Appeals, and was then translated to the lofty domain of the Supreme Court in Washington. It was the Bakers' case, which was concerned with a statute regulating the hours of those who bake our bread.1 There was a statute of the State of New York that men working in a bakery, men forced to cook late so that people can eat their bread in the morning, should only work eight hours. It was claimed that that was an interference with human liberty on the principle of laissez faire, once so valued in our domain of thought that our political philosophy, so far as we had any, was based on it. A man who wanted to make a contract to work twelve or fifteen hours had a right to do so without interference from the State, it was claimed. The legal basis for opposing the law was the Fourteenth Amendment, providing that no State shall pass any laws interfering with the rights, happiness, or liberty of an individual, and that all are entitled to the equal protection of the law. There was, therefore, a serious question whether it was a reasonable regulation that bakers should only work eight hours, or whether such a regulation was depriving them of civil liberty. The Supreme Court took the view of Mr. Spencer and Mr. Mill, and decided that it was an interference with human liberty. If the bakers wanted to work more hours than eight hours and suffer from the ills, diseases, and troubles incident to such a laborious profession, and people wanted to eat bread made by men who worked in that way, they were at liberty to do so. The law was held to be unconstitutional. 1

People v. Lochner, 177 N.Y. 145 (1904); reversed, Lochner v. New York, 198 U.S. 45 (1905).

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N o w any man who wants to bake can do so; and the baker can work as long as he likes, and the State will not interfere. But Mr. Justice Holmes, who is a very wise man and who ought to be a member of our Association, because he knows that there are no principles in sociology, said, in effect, in dissenting: Laissez faire is an economic theory. If I could devote a lifetime to studying it, I would state whether or not it is a wise theory; but I am unable to find that the Constitution of the United States has embodied anybody's economic theory, and, whether the judges like the theory or not, it is not found in the Constitution. H e does not believe that the Constitution intended to embody in it the principles found in Herbert Spencer's "Social Statics." His view is that the wisdom of such legislation is a question to be settled by public opinion, not by the courts; that, if a majority of the people feel that such a law is a reasonable and proper regulation, there is nothing in the Constitution of the United States to prevent their embodying such notions into legislation. T h i s is one of the many instances which we see on all sides of us of the pressure of the State on the individual, and it is thought b y many to bear upon the liberty of the individual much too heavily. President Roosevelt, so active-minded as to be able to throw light on almost every public question, has recently suggested the idea of an inheritance tax as a remedy for our richness. I do not know whether many of us are suffering from that disease. Possibly some are: I never suffered from it myself. Those who are suffering from that trouble are to be cured by an inheritance tax which will lop off the amount which renders them diseased and unhealthy, and the plutocrats are thus to be kept in the delightfully healthy condition that most of us feel ourselves in. W h e t h e r this is feasible or not, I am not prepared to say. Personally, I feel there is some-

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thing attractive in the theory, but, speaking as a sociologist, I should be devoid of all human emotions; yet perhaps my sentiments are in some measure due to my bank account. It is urged against the theory that it interferes with the right of a decedent—the natural right to give property to whom he likes. I say that, as far as sociology and comparative jurisprudence teach anything, they teach that there are no natural rights; but if there is any natural right, it is the natural right of those brought into existence by a testator to share in his property. Full liberty of testation is unknown to continental systems of jurisprudence today, and was late translated into the English law from the Roman Civil Law. The President did not mention the French law, which seems to me to have some great advantages. There is no liberty of testation in France, the land of natural rights. There is no right to give your property, at death, to whom you please. The individual is forced, if he has children, to divide it among his children, retaining for himself only a proportionate amount. If he has three children, it must be divided into four parts, one part to each of the three children; of a fourth part only, he may freely dispose. This is a kind of universal application of the mortmain theory. That is an instance, perhaps, of what the President had in mind—of some law preventing the dead from handing on more than a certain proportion to any one person. The French system shows that there need be no inherent right of testamentary disposition in a most highly civilized community. It is a right of modern growth, and it has been held by our highest courts that the right of inheritance is not a property right, but a privilege, and is fully taxable by the State to any extent that it chooses. Therefore, the ideas of our President in that respect seem to be in accordance with the trend of the courts as to limitations on individual rights. I believe this trend is called by the ordi-

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nary folk "Socialism" and by the sociologists "Collectivism." I shall not attempt to define it, but I will call it "Collectivism," since it is less alarming than "Socialism." T o say a word before closing about the subject of this discourse, "The Regulation of Corporations." There are two questions, it seems to me, broadly speaking: "How far should corporations be regulated?" and "How far can they be regulated under existing constitutions?" By the first, we mean, How far is it expedient that you and I, as citizens of supreme wisdom, should advise our fellowelectors to regulate them: and by the second, How far are we by the action of past generations, under restraints which prevent our carrying our will into effect at present? That is to say, How far are we limited until by methods either of judicial interpretation or direct amendment we have so amended our constitutions as to put our present wisdom in the place of the wisdom of our ancestors? "How far is it expedient to regulate these corporate bodies?" That, it seems to me, is a question of degree. I do not believe there is any great section or body of our people who think all the public utilities, railroads, etc., should be turned over to the State or municipality. If the State could perform it cheaper, better, more wisely, I would say that we would all say, Let the State do it. If the State can do it better, let it do it; but our answer to the socialist may well be, Will the State do it as well as the individual under proper regulation? Let the individual do it as now; but let us see that the thing is so regulated that the public get what they ought to have, while at the same time the individual is allowed enough security and enough return upon his money to make it worth while for him to use all the brains and all the knowledge that nature has given him. Do not let him be a salaried employee of the State whose sole object will be to find out the best manner of not doing anything. We have met him. We would

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not like all these utilities to fall into his excellent, sometimes venerable, and not always clean, hands. There is nothing mysterious in the nature of "Corporations." There is nothing extraordinary about it. It simply happens that industrial conditions have so changed that it is necessary to have great aggregations of wealth in one form or the other to meet modern requirements. Almost any of us could have managed to raise enough capital, from our friends at least, to run a stagecoach in the old days, and needed no franchise from the State; and in those days the State would not have had to regulate us at all. W e would only have had to get good horses, a good coach, and to try to regulate the drinking of our coachman—that is about all the regulation a stage line would have required. There would have been no need of public supervision, simply a question of letting the individual alone. See that he drives well and collects all the fares he can, and drives as fast as he can, short of killing his horses, and the thing will work out nicely. But when the railroad came the question was different. It took an enormous amount of capital, and much State control had to be exercised. If you did not like the stagecoach, you could take your own wagon and run in opposition; but we cannot, any of us, build railroads. It is a capitalistic monopoly, in the nature of things. T h e evils incident to a railroad would be just as great if it were owned by an individual, by any single rational individual looking wholly to his profit. T h e y would be just as vicious as if run by that monstrosity, the corporation. N o w it happened that no one individual had enough money to run railroads, so it was necessary for a great number of individuals to combine their capital, and the State gave them certain rights as a group. T h e y became a corporation. The corporations that were known before were largely public, eleemosynary, and religious. Business was done by the individual who required little capital, or by a partner-

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ship if more capital was required. When individuals got together in groups and were incorporated, the situation changed only in this, that the rights conferred upon the corporation were purely creations of the statutes. The rights of the individual were supposed, of course, to have existed antecedently to the State, but on the creation of the corporation the State conferred on them definite rights. The lawyers long ago invented a fiction that a corporation is a person—an artificial person. Well, a corporation is very glad to be a person, because a person has many rights protected by our Constitution—national rights. So the corporation immediately seized upon and cherished the fiction. In regulating the actions of persons, the law-makers are limited, for the Constitution says that a person shall not be deprived of his life, liberty, or property without due process of law. His pursuit of happiness shall not be interfered with in any way; he shall only be tried by jury; shall be compelled to give no testimony against himself, nor be subject to unjust search or seizure; and is given other rights and immunities. These have sometimes been held to apply to artificial persons, and the corporations claim these rights. Now that brings us to a second question. Assuming that we all agree that all these great industrial entities need regulation, that no change in our general principles is necessary because we have already departed from the laissez-faire school, by reason of the change in industrial conditions, how much can we regulate them? It is admitted for instance that we cannot take property without due process of law, even though the property belong to a corporation. This result which the lawyers reach is perfectly sound; but the reasoning by which they reach it, from the standpoint of the analytical logic that you and I as members of this Association employ, is unsound. A corporation is not a person at all in any real objective

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sense. The framers of the Constitution never dreamed that the word "people" included a corporation. The idea did not occur to them for a moment, and they would have laughed at it. W h y cannot we take their property? Not because this intangible union is one of "the people" and has rights as such, but because the real holders of the rights are persons, and you cannot take their property without due process of law. If the whole population were exterminated and the legal fiction, the corporation, left, its rights would be worth nothing. So the rights which belong to the corporation belong to a certain group of individuals; and you cannot confiscate the property of one of the insurance or steel companies because in doing so you would deprive individuals of rights that they have. If there were only one man in the world, he could have no rights. Property rights are powers over things or persons. You must have property and have individuals in order that rights may exist. So the corporation gets protection because it is composed of individuals, and not because of the fiction that it is a person. This question came up the other day in the United States Supreme Court in the Tobacco Trust case.2 The Tobacco Trust had been asked to show its books and papers; and, under the advice of very able counsel, feeling that it should have all its inalienable rights of man, it stated it was protected by the Constitution. The treasurer refused to answer questions because he might incriminate both the corporation and himself. He also refused to furnish the books, claiming it was an unreasonable search, and that he was protected by the Constitution. The court held, by a majority of one, that his position was unsound. They reasoned, "You may be privileged, as far as you are concerned—you cannot be - H a l e v. Henkel, 201 U.S. 43 (1906); McAlister v. Henkel, 201 U.S. 90 (1906). T h e Tobacco Trust case was later decided on the merits in United States v. American Tobacco Co., 221 U.S. 106 ( 1 9 1 1 ) . [Ed. note]

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THE LAW IN AN ERA OF CHANGE

prosecuted—but you are only the agent of the corporation, and that is not a plea that can be made by the agent for somebody else, the corporation, as in making it you are making it as an individual." And by that plausible reasoning they overruled his plea, and held he must answer. T h e question of the books and papers was more difficult, because they belonged to the corporation. T h e court seemed for a moment to meet the question quite firmly, and said in substance: "This is a plea that cannot be made by a corporation—that is a right belonging to a person. W e say that a corporation is a person, but that is only a mode of speech. W e will not resort to that fiction. The prohibition of the Constitution does not apply to corporations, creatures of legislation not of nature, and they must show their books and papers." But the court goes on to say that there might be cases in which the search and seizure would be so unreasonable that the corporations could plead it; it thus avoided deciding the question squarely. Justice Harlan, concurring, says that corporations are not persons within the meaning of the constitutional amendments. Thus, while the government got the best of the argument, the law was left in a sad condition of uncertainty, though endurable for lawyers, perhaps, as possessing great potentialities of litigation. Justice Harlan has summed up the true situation when he says the word "persons" was not intended in the Constitution to apply to corporations. T h e rational view is that you cannot deprive the natural person of his property because it is put in corporate form. A corporation is a form of doing business, nothing else, in which the State has an interest. When you state that you do business as a corporation, you submit to incidental supervision upon the part of the State, and it is right for you to submit to its examination. But if you were an individual, possibly in the same business, it might be that a search would

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37

be reasonable and proper against you as a corporation, but not as an individual. So I say that so far as the second question is concerned, the national Constitution, in which the wisdom of our ancestors is embodied, has not as yet prevented us from supervising and regulating corporations falling under federal law. One thing that may stand in the way of this regulation is that property shall not be taken without compensation; but it has been held that, where corporations are performing public business, the Congress or state legislature can fix rates that are reasonable, and the only limitation to such fixing is that these rates shall not be confiscatory; they must be fair. So it does seem that under such circumstances the Constitution is broadly interpreted, and the interpretation places in the way of the legislature restrictions which are perfectly proper, and which are perfectly compatible with regulating corporations up to the point of destruction or confiscation. An interesting question came up the other day in a case as to that very thing that we were talking about—the right of officers of corporations not to be questioned about their business. You will remember that in the Beef Trust case they pleaded privilege.3 Some people call it the "privilege of the burglar." They pleaded their privilege on the ground that the Commissioner of Commerce and Labor had already examined fully into their affairs, and obtained from them certain information under compulsion of law. The judge decided that their previous testimony rendered them immune from prosecution. It seemed to us a little strange at the time, but probably he was technically correct. The President is somewhat of a socialist himself, and saw fit to call the attention of the country in general to this decision and ruling of the federal judge. He did see fit to comment on it, and some people were unkind enough to say that his action was unprece3 United States v. Armour & Co., 142 Fed. 808 (N.D. 111. 1906).

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dented. You and I know it was not unprecedented because our memories go back further, and we know that a long time ago very much the same question was raised. The good King James was very much discontented with an individual named Coke, Chief Justice of the King's Bench, whose decisions were, in the opinion of King James, not according to law. It led to a controversy, and the king immediately requested Coke to revise his opinions, which he, being an obstinate man, refused to do satisfactorily, and then James immediately, instead of decapitating him—as he might have done—sent him to jail, so that you see there are precedents in history for almost everything. A Mr. Gardiner, who is a wise historian, says that, while the verdict of history may seem to be against King James, he does not think that is the sound view. Bacon stated that James was right, and that judges should not decide questions of constitutional law. The verdict of history in this country is that the judges should decide these questions. Mr. Gardiner thinks the only proper way to decide these questions is to decide them as in England by legislative votes. King James he thinks was right in his position as far as Coke was concerned, and only wrong in wishing to take the power to himself instead of letting Parliament have it. Our President does not desire to take the power himself. His desire is to have some legislation from Congress which would prevent a repetition of such a ruling as that of the District Court in the decision of the Beef Trust case. De Tocqueville, referring to matters along the same line, said that, if the power of interpreting constitutional law in France were placed in the courts, it would create a most evil system because the judiciary then would hold the dominating position, insofar as the inherent weakness of the judicial power would allow. So that, after we have looked over the question, we find that America is the only country in which constitutional

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limitations or regulations are really made by the courts, because it is a pure fiction of the law to say that the Constitution fixes them itself. It only determines them in so far as it may be interpreted by the courts, and that interpretation is constantly shifting with the changes of view in the courts which reflect public opinion. Thus that tremendous power which in England and France is confined to the legislative body in this country is found in the courts. This furnishes additional reason why all our people should be respectful of the courts and should take care that the courts be worthy of this respect. I would say in closing this very informal and fragmentary discourse that we have come to no definite conclusion because it would be unscientific to do so. Society has been evolving for a great many hundred years, and I know of no definite, positive, fixed, logical formula which could help us to determine how far State regulation should hamper men's liberty. As far as I can see, we must try to think dispassionately of these questions in the same frame of mind as that of the chemist when he analyzes chemical substances in his crucible. W e must not consider that a thing is evil merely because it is a corporation. Remember that the methods of business have changed; that general rules as to the rights of individuals, which served well fifty or sixty years ago, must be disregarded today because conditions have changed. The laws are now such that no man has a right to amuse himself by giving the smallpox to his neighbor. The doctor can force him to go to the hospital to be vaccinated whether he likes it or not. The greatest good of the greatest number requires that a certain amount of corporate regulation should be brought about, but before acting we must be sure that the regulation will not be worse than the evil we are trying to combat. It is never sound policy to assume that unwise laws are better than none.

3

Riparian Rights: A Perversion of Stare Decisis FROM THE COLUMBIA LAW REVIEW MARCH

F

1909

EW THINGS, indeed, are more misleading than labels. Yet we must use them. Some indication of contents, whether it be of a bottle or of a book, is well-nigh indispensable. If labels do not convey to our minds any very accurate idea of the matter contained, they may, at least, be a safeguard against poison, or serve as a means of limiting the tax upon our eyesight. "Riparian rights" is a broad term. It is a category dealing with an almost inexhaustible variety of situations and possibilities; and even an elementary treatise on the subject would require the greater portion of one year's issue of this magazine, and would, in all human probability, be most adequately calculated to reduce the number of subscribers to an inappreciable and unappreciating minority. Lest, however, the reader take alarm at this apparently sinister preface, I hasten to add that what will be discussed is a very small incident in that vast domain of law treating of those peculiar rights, neither wholly terrestrial, nor entirely aquatic, which might almost be denominated amphibious. Etymologically, the term "riparian rights" should refer specially to rights in rivers, but the alliance between law and etymology, never very close, has of late years, in our overworked law courts, and at the hands of our non-technical legislators, been severely strained.

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Consequently, I need scarcely apologize for saying that the class of riparian rights here treated has no reference to rivers, as such, but deals entirely with the foreshore or beach: viz., that portion of land which, lying between the low and highwater mark on a tide-washed shore, becomes alternately land and water. The term "littoral" is sometimes applied with greater accuracy to this situation, but the term "riparian" seems to be now consecrated by legal usage, and I do not sufficiently possess the temper of the reformer to attempt to change it. Riparian questions have often played a great role in our jurisprudence. The rule of navigability has been extended to the great fresh water lakes, new conditions having made new law. The English common law test of navigability, once found inadequate, has been repudiated, although it had been sanctioned by a decision of the Supreme Court.1 The great rivers, forming highways for commerce between our States, have often been the subject of jealous controversy between the States whose territories they wash. The Supreme Court of the United States in the case of Kansas v. Colorado has said that in dealing with these questions, it sat rather as an international tribunal than as a merely domestic one, dispensing international rather than common law and unfettered by the ordinary technicalities of municipal law.2 Later, at a further stage of the same important litigation, in answer to the claim of the Attorney General that the United States has an inherent power to regulate questions of irrigation, the court made the timely reply that the government of the United States is still one of enumerated powers only, possessing no inherent sovereignty; that the proposition advanced by the representative of the United States government that there are legislative powers 1 2

The Genesee Chief, 12 How. 443 (U.S. 1851). 185 U.S. 125 (1902), at pp. 146-47.

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which belong to the nation although not expressed in the constitutional grant of powers, is in direct conflict with the constitutional principle that this is a government of enumerated powers; and that this clearly appears from the Constitution, even independently of the amendments.3 Otherwise an instrument granting certain specified powers would by construction be made operative to grant other and distinct powers. Thus has the mere question of riparian rights called forth from our supreme tribunal emphatic repudiation of the doctrine that the federal government may have powers outside of and beyond the scope of the constitution. Again, there are other phases of the law of riparian rights which have involved the broadest questions of constitutional law. How far such rights may constitute property, and how far such property may be taken without compensation, have formed the subject of notable state and federal adjudications. T h e question directly treated in this article, although apparently a simple one, has been in dispute for many years. It may be stated thus: has the owner of land abutting upon the sea or an arm of the sea, in which the tide ebbs and flows, the right to construct for his own use a dock giving him access to the navigable portion of the stream? It must, indeed, seem strange to those not versed in the judicial literature of the subject that this question, until a few months ago, was still unsettled in our State. It has long been a bone of contention, not only in New York but in many other States, and many decisions directly or indirectly involving the question have appeared to be conflicting and confusing. The unsettled condition of the law upon the subject has led to bitter controversies in many seashore communities, yet it was not until March, 1907, that the Court of Appeals of the great State of N e w York definitely established as a rule of property the proposition that the 3

Kansas v. Colorado, 206 U.S. 46 (1907), at pp. 89-90.

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riparian owner whose land is bounded by navigable waters has the right of access thereto from the front of his lot, and such right includes the construction of a pier on the land under water, beyond high-water mark, for his own use or for the use of the public, subject to such general rules and regulations as Congress or the State Legislature may prescribe for the protection of the rights of the public.* The fact that the decision was reached by a divided court, three of the seven judges dissenting, can but add interest to the question and illustrate the uncertain state of legal opinion upon the subject. The history of the controversy goes back to a remote time. It is apparently one of the most ancient in English law. A short sketch of it may not be uninteresting as indicating how slavishly in some respects our law has followed ancient precedents originating at a time when social and political conditions were far different from our own; and with what difficulty we are able to make new departures more consistent with the needs of modern society. In England, rights in the foreshore have been a subject of legal contention almost since the Norman Conquest. Prior to that momentous event, a riparian owner under the Saxon law apparently held his land undisturbed and unfettered down to the low-water mark. The claim of the Crown to the jus privatum, or private ownership, in the foreshore, as opposed to the jus publicum, or right of the King as a mere trustee for the public, which was always recognized, does not appear to have been developed prior to the sixteenth century. Crown prerogative and royal property formed one of the elements of the policy of Tudor and Stuart kings. Unoccupied land, fishing rights, wrecking rights and the soil of the foreshore fell within the range of their covetousness, and able Crown lawyers were soon found, ambitious and ingenious enough to devise theories and fictions by which 4

Town of Brookhaven v. Smith, 188 N.Y. 74 (1907). (Headnote 1.)

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the King could lay claim to the land between the low- and high-water marks; but it remained for the judges of Charles I finally and definitely to declare as law the theory that the King alone owned the foreshore. The study of the history of legal institutions has been said to tend to make one a legal skeptic. The history of the English law is admirably illustrative of the development of legal theories, and their erection into principles or rules which come to be clothed with an almost sacred character, yet whose origin upon examination is sometimes found to be neither in historic truth nor in social justice. Principles of property or family law whose supposed antiquity leads to their being treated as elementary often prove to be of comparatively recent origin and to reflect radical changes in the social and economic balance or structure of society. The doctrine of the English law for more than two centuries has been that the King was presumed to own the foreshore, and this presumption could not be rebutted save by the exhibition of an actual Crown grant to the claimant or his predecessor in interest. This doctrine, termed the prima facie doctrine, is stated in Blackstone and in the usual standard text-writers in England and America as a settled proposition historically and legally sound. That it was historically false and had its origin in the usurpation and greed of the Stuart kings and in the subservient ingenuity of the Crown lawyers has been left to modern scholarship to demonstrate. The discovery and publication of old grants and court records have thrown new light upon the subject, and instructive reference to them may be found in the scholarly and erudite work of Mr. Moore on the history of the law of the foreshore and seashore.5 Moore appears to have successfully demonstrated that prior 5

Stuart A . Moore and R. G . Hall, History and Law of the and Seashore (3 ed.; London: Stevens and Haynes, 1888).

Foreshore

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to the Norman Conquest the Saxon lands were in fact, if not in name, manors, and that the riparian owners owned either to the thread of the stream or to the low-water mark, as the case might be. After the Conquest, the large Saxon landholders were not disturbed, and their grants were in large part either confirmed or their substance incorporated into such new grants as were made. There is no evidence that the Norman or Angevin kings made any claim to the foreshore except when they themselves were lords of a particular manor. Mr. Moore says: [Instead] of it being true that the Crown retained the foreshore when granting out its dominions, it is more probably true that the Crown did actually grant it out by its original grants of almost every manor in the kingdom, and consequendy that the theory of the prima facie title is one on which little reliance can be placed.8 Evidently that quaint and charming old writer, Bracton, did not recognize this prima facie theory as part of the English law in his day, for in his Institutes he leaves out that portion of Justinian's work which claims for the Imperial power the right to the foreshore. The theory of the kingly ownership of the foreshore was invented by an ingenious Crown lawyer, one Thomas Digges, in the reign of Elizabeth. His claim was that the foreshore belonged to the Crown, not as other royal property, but as part of the royal prerogative, and he supported it in a learned thesis on the subject based upon an assumption of a state of facts of which there is no proof and the reverse of which almost certainly existed. Before the reign of Queen Elizabeth the true presumption of fact with regard to the ownership of the foreshore should have been the exact reverse, namely, that it was in the riparian owner 6

Moore and Hal], p. 29.

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rather than in the Crown. It appears that during the reign of Elizabeth and James I, in a number of cases, the Crown claim to foreshore ownership was made by astute lawyers, filled with zeal to enlarge the royal jurisdiction; but all these cases seem to have been unsuccessful until the famous case of Attorney-General v. Philpot,7 in 1628, which, we may say in passing, is mentioned in the dissenting opinion in the Brookhaven case as a leading English case establishing that doctrine. That case does not appear to be reported, but Mr. Moore has found the manuscript record, and gives it in extenso in his work. It is extraordinary that it should be the foundation of a rule of property law which until 1907 was the law in the State of New York, when we reflect that the case was decided by judges, some of whom sat in the famous Ship Money case, and upon whom history has placed a heavy load of obloquy. The decision was apparently procured, as the Ship Money judgment had been, by the personal pressure of Charles I for the purpose of obtaining for the Crown properties and revenues to which it had no just title. The claim, says Mr. Moore, w a s f o u n d e d in u n t r u t h a n d injustice, a n d the t o o g r e a t insistence u p o n it b y K i n g C h a r l e s I u n q u e s t i o n a b l y w a s one of the causes o f the g r e a t R e v o l u t i o n . 3

Sir Thomas Townsend, writing to a friend as to the Philpot case, intimates that it will be properly disposed of "when some of the barons have received directions from the King." The case itself seems to have been a moot case, contrived by the Stuart monarch for the purpose of obtaining a decision which might bring him needed revenues. The Crown lawyers raised the question by making a lease of a ' Attorney-General v. Philpot ( 1 6 2 8 ) , reported in (Moore and Hall, pp. 262f. 8 M o o r e and Hall, in Introduction, p. xxxv.

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piece of foreshore to one Cornelius Vanderbilt, with a view to establishing legal title by an action. It appears an odd coincidence that the Court of Appeals two centuries later in the case of another Vanderbilt9 should have declared as New York law the proposition advanced by Vanderbilt on behalf of Charles I in the Philpot case. That a decision rendered under such circumstances should have stood as law in the United States for more than a century is a strong commentary upon the conservatism of our judges and perhaps, incidentally, upon their lack of knowledge of or indifference to history, at least as found outside of the reports of the law courts. The "Grand Remonstrance" of 1641 is almost as noteworthy a landmark in the history of English liberty and constitutional law as the Great Charter itself, yet how many judges who have learnedly considered these questions have had in mind the Twenty-sixth Article of that memorable document, charging the King with "taking away of men's rights under color of the King's title to land between high and low-water mark?" After the downfall of the Stuart tyranny the claim seems to have been abandoned, or at least not pressed for many years, and the judgment in the Philpot case itself was apparently never executed, owing doubtless to the advent of the Revolution. There were, as there had been before, many cases relating to interference with the jus publicum, but we must wait many years before we find another precedent for the Stuart doctrine of jus privation. It has always been admitted that the jus publicum was inalienable, and in examining the early cases care must be taken to distinguish between the two. The theory of the Crown lawyers was that the King in his capacity as representative of the whole realm was charged with the duty of safeguarding the right of the public to »People v. Vanderbilt, 16 N . Y . 287 (1863).

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navigate tidal waters or to use the foreshore for fishing purposes, etc., but that in addition to this merely public function he possessed in his own right, as the general residuary owner of all the soil in England, the jus privatum, or title to the soil of the foreshore, which conferred upon him the right either to alienate or to use this property in any way not incompatible with the jus publicum. The difference between the two is clearly and adequately instanced in the next case which we find adopting the doctrine of the Philpot case. This case is the Attorney-General v. Richards, decided in 1795. 10 The Crown had proceeded by information to obtain a decree abating a dock or quay erected upon the foreshore of Portsmouth Harbor by the riparian owner. The action seems to have proceeded upon the double ground ( 1 ) that the structure was a nuisance, and therefore obnoxious to the jus publicum, and (2) that it was a purpresture, that is to say, an erection or enclosure on the King's soil, and hence summarily abatable as such. The defendant, in answer to the first point, claimed that he should have had a trial by jury, and, as to the second, endeavored to show evidence of a grant of the foreshore and ancient usage. The Court apparently thought the first answer to the question adequate, but granted a decree in favor of the Crown on the ground that "the soil is the property of the Crown." The Court, nevertheless, indicates some little squeamishness as to following the Philpot and other contemporary cases, for it says: It is objected that these cases were in the time of Charles I; but it must be remembered, that Lord Hale determined some of them, and approved the rest. It does not appear to have been noted by our courts that the Richards case post-dated our adoption of the common law, and that at the time when the common law became a part of the law of the State of New York, the famous (or in10

2 Anstruther 603 (1795).

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famous) Philpot case was the only authority for the doctrine that the erection of a pier on the foreshore by a riparian owner was per se abatable as a purpresture. Johnson v. Barret11 is also generally cited as upholding the prerogative doctrine, but the report is incomplete and the subsequent history of the dispute proves that the obstruction made navigation dangerous "to ships in the ebb tyde." The English law itself has been somewhat modified of late years, and now a riparian owner may not be cut off from his access to the water. 12 The case of Parmeter v. Gibbs 13 followed the AttorneyGeneral v. Richards case, and simply maintained the prima facie doctrine as law in England. Sir Matthew Hale, who wrote his famous treatise on the subject in 1786, and who has been cited as the most respectable authority for the proposition, does not seem to have himself believed that the Crown historically was the owner of the foreshore, but merely that there was a presumption of law to that effect in the absence of contrary proof. It is impossible here to trace the doctrine of the jus privatum in its various ramifications throughout the United States. We will confine ourselves to a brief synopsis of its history and development in this State and its final burial by the Court of Appeals in the Brookhaven case after two hundred years of noxious vitality. Before adverting to the New York cases, however, there are three important decisions of the Supreme Court of the United States involving the doctrine. They are in the order of time as follows: Yates v. Milwaukee,1* Shively v. Boivlby,15 Scranton v. Wheeler.18 11

3 Aleyn K.B. Reports 10 (1646). Buccleuch v. Metropolitan Board of W o r k s , L.R. j H.L. 418 ( 1 8 7 2 ) ; Lyon v. Fishmongers Co., L.R. 1 A p p . Cas. 662 (1876). ™ 10 Price 412 ( H . L . 1 8 1 3 ) . " 10 Wall. 497 (U.S. 1870). " i j : U.S. 1 (1894). 16 179 U.S. 141 (1900). 12

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It is needless to consider in this article how far these cases are reconcilable. Suffice it to say that the advocates of the doctrine that a riparian owner has no wharfage privilege claim that the expression to the contrary in Yates v. Milwaukee is a mere dictum. That oft-quoted expression was written by Mr. Justice Miller and is as follows: But -whether the title of the owner of such a lot extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; and among those rights are access to the navigable part of the river, from the front of his lot, the right to make a landing, wharf or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those may be. . . . This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It is a right of which, when once vested, the owner can only be deprived in accordance with established law, and, if necessary that it be taken for the public good, upon due compensation.17

The disclaimer by the Court of the relevancy of the question whether the riparian owner had title to the foreshore is most significant, since, had the Court held the English view of jus privatum, the dock, if the foreshore was not in the riparian owner, would have been an erection upon the soil of the King (or his successor, the grantee) and hence summarily abatable as a purpresture. It has been claimed in the Brookhaven case that this expression of the Court in the Yates case has been the origin of nearly all the dicta in the New York reports to the same effect. However that may be, the doctrine has itself now finally been adopted in New York. In Shively v. Boivlby, a characteristically exhaustive and 17

io Wall. (U.S.), at p. 504. The italics are the writer's.

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learned opinion was written by Mr. Justice G r a y . H e comes to the conclusion, after citing copiously from Lord Hale and some of the English decisions, that by the law of England, also, . . . every building or wharf erected, without license, below high-water mark, where the soil is the King's, is a purpresture, and may, at the suit of the King, either be demolished, or be seized and rented for his benefit, if it is not a nuisance to navigation. 18

W e thus have here a most unqualified statement of the Stuart doctrine of jus privatum. T h e learned Justice further reviews the law in the different States and finds considerable diversity upon the question as to the rights of the riparian owner in the land below high-water mark. T h e real question involved in the case, however, was whether grants made b y the territorial government while Oregon was a territory passed title to the foreshore, so that the government of the State was precluded from claiming it after the territory was admitted. In final analysis, this case merely declares the law of Oregon to be that of the prima facie doctrine as to the ownership in fee of the beach. In the later case of Scranton v. Wheeler, the question involved was whether the United States government, for the purpose of improving navigation, might erect a pier which would interfere with the access of the riparian owner to the navigable portion of the stream. T h e authorities were reviewed fully, and it was held that, although a riparian owner has a right of access, his access must be held in subordination to the right of the government to improve navigation. T h e Court so phrased their view of the law: If the riparian owner cannot enjoy access to navigability because of the improvement of navigation by the construction away f r o m the shore line of works in a public navigable river or water, and is IJ2 U.S., at p. 13.

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if such right of access ceases alone for that reason to be of value, there is not, within the meaning of the Constitution, a taking of private property for public use, but only a consequential injury to a right which must be enjoyed, as was said in the Yates case, "in due subjection to the rights of the public"—an injury resulting incidentally from the exercise of a governmental power for the benefit of the general public, and from which no duty arises to make or secure compensation to the riparian owner. The riparian owner acquired the right of access to navigability subject to the contingency that such right might become valueless in consequence of the erection under competent authority of structures on the submerged lands in front of his property for the purpose of improving navigation. 19

This statement of the law is a declaration that the riparian owner holds his right subject to the jus publicum, and no question of the ownership by the Crown or by the State of the foreshore was necessarily involved. Justices Shiras, Gray and Peckham dissented, however, holding that if by the law of the State in which the land is situated the right of access is one of the incidents of abutting land, such right is property and cannot be taken away without compensation. The difference, therefore, between the members of the Court appears to be not as to the existence of the upland owner's property right of access, but whether the right of the government to have the navigation improved is altogether paramount, or whether it could only be exercised after condemnation of such right. Thus aside from the views expressed by the Court in Shively v. Boivlby as to the English common law, and its having become a part of the law of Oregon by adoption, there is nothing in any of these decisions holding that the ancient royal jus privatum and doctrine of purpresture became part of the common law in the United States. We are now brought to consider the New York law and 19

1 7 9 U.S., at p. 164.

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RIGHTS

53

the antecedents of the Brookhaven case. They are referred to in great detail in that case and it would be wearisome iteration to treat them here at length. Suffice it to say that in the year 1892, the case of Gould v. Hudson River Railroad Co.,20 holding a riparian owner without remedy against a railroad corporation which cut off his access to the water, was overruled in the case of Rumsey v. N.Y. & N.E. Railroad Co.21 and the right of access upon the part of an upland owner held to be a property right as against a private corporation whose erection of a railroad took it away or interfered with its enjoyment. Throughout this and later cases the statement appears in almost identical language to that used in the Yates case to the effect that the right of access of the riparian owner includes the right to make a landing, wharf, or pier for his own use. That precise question, however, was not necessarily involved in any of the cases. It appears clearly, nevertheless, that the right of access was a property right, although it was held in the case of Sage v. The Mayor,22 that such right must be held in subordination to the right of the municipality to improve the navigation of the river. This is in line with the decision of the Supreme Court of the United States in Scranton v. Wheeler. It was decided, upon the other hand, in the Matter of the City of New York," that the erection of the Speedway along the Harlem River, by which abutting owners were cut off from access to the river, constituted a taking of property for which the city was liable, thus emphasizing the fact that the riparian owner had a property right, subject only to the jus publicum; otherwise, as the city owned the foreshore it could have used it as it wished. The jus privatum was thus not recognized as law. This result seemed fairly deducible from the other decisions, as no amount of legal ingenuity -•06 N.Y. 522 (1852). 22 1 j4 N.Y. 61 (1897).

21 133 23

N.Y. 79 (1892). 168 N.Y. 134 (1901).

54

THE LAW IN AN ERA OF CHANGE

could torture the erection of that delightful pleasure-ground into an improvement of navigation. None of these recent cases, however, really considered the distinction between the jus privatum and the jus publicum. In the People v. V'anderbiltf* the Court of Appeals, possibly unnecessarily, but nevertheless somewhat positively, committed itself to the purpresture doctrine. The defendant had constructed a solid pier filled with stone beyond the New York harbor line and an action was brought in behalf of the people to restrain the erection of such pier and to compel the removal of the part already built. It would seem from the report that the decision might well have been placed upon the ground that the pier was an obstruction to navigation and, as such, a nuisance. This is the view taken of the decision by the Court in the Brookhaven case. The Court, however, in the Vanderbilt case did not ostensibly rest its decision upon such ground. T h e y say: T h e crib sank b y the defendant and the proposed pier w e r e a purpresture, and were, per se, a public nuisance. . . . The o f f e r ,

therefore, of the defendant's counsel to prove by the testimony of witnesses that the crib and proposed pier were not, and would not be, an actual nuisance, and would not injuriously interfere with or effect the navigation of the river or bay, was properly overruled.25 As an authority on this proposition is cited AttorneyGeneral v. Richards, discussed above. I am not aware of any other cases in the higher courts in this State standing squarely for the royal prerogative doctrine. T h e law stood in this situation when the case of the Trustees of Brookhaven v. Smith 20 reached the Appellate Division in the Second Department. It appears that the town « 2 6 N . Y . 287 (1863). 25 26 N . Y . , at p. 297. T h e italics are the writer's. ' « 9 8 N . Y . App. Div. 212 (1904).

RIPARIAN RIGHTS

55

of Brookhaven was seized of certain lands under water under ancient royal grants dating back to 1666. Claiming a right to a fee ownership in the foreshore under these grants, the town leased such foreshore to persons other than the riparian owners. The riparian owners had built docks upon this leased land, and the town lessees consequently sued them in an action for trespass. N o questions of navigation, or of the rights of the general public, were involved. It was necessary to determine whether the town was the owner of the foreshore under such old grants, and if so, whether it consequently had a right to abate as a purpresture the dock in question. The Appellate Division assumed that the grant of the lands under water conveyed the title of the town to high-water mark, and that the grants were to be interpreted in the light of the law at the time they were made. Under such law, so the Court held, the king was the owner of the foreshore and any riparian owner who placed anything thereon was a mere trespasser. By the law of England [says the Court], as it existed at that time, every building or wharf erected without liccnsc below highwater mark, where the soil belonged to the King, constituted a purpresture and might, at the suit of the King, be either demolished, or be seized and rented for his benefit, if it did not constitute a nuisance to navigation . . . and no reason suggests itself, why the defendants should have a higher right against the grantees of the King than they would have had against the sovereign of Great Britain had he continued the owner of the soil.27 Consequent upon this decision, efforts to enforce supposed town rights by summarily destroying the wharves of the abutting owners were made on Long Island. The writer of this article was, among others, a victim of the ancient Stuart doctrine of purpresture and the vicious but ancient legal theory of the jus privatum devised by Air. Thomas - 7 98 N.Y. App. Div., at p. 217.

56

THE LAW

IX AN ERA OF CHANGE

Digges, sanctioned by the Ship Money judges, and whose final manifestation took the form of ludicrous antics on the part of petty town officers intoxicated by the recrudescent exuberance of royal prerogative. This zealous desire to conform to the latest utterances of the courts and to vindicate the kingly dignities inherited from English monarchs vested by ancient grant in municipal corporations added greatly to the interest in the result of the appeal to the Court of Appeals in the Brookhaven case. Prior to that decision, however, the Appellate Division in the Second Department decided the case of Coudert v. Underbill,28 In that case, the ruling in the Brookhaven case was affirmed, and the statement in a recent case in the Court of Appeals 29 to the effect that the right of access included the right to make a landing, wharf or pier, was distinguished on the ground that, while this might be true where the foreshore was owned by the State, such was not the law in the case of a Ttzunicipal corporation. The right to erect a dock has no reference to a situation where the fee of the soil between high and low-water mark is in an individual or corporation,30

As the fee of the soil, whether in the State or in the municipal corporation, must ultimately have been derived (if derived at all) from the English Crown, it is difficult to see upon what ground a distinction could be made between the State as owner and a municipal corporation as its grantee. However, this point, although discussed upon the argument, was not adverted to in the Brookhaven case, and we may assume that the Court of Appeals found that even its novelty did not require any mention. It is interesting to note as a commentary on the possible ramifications of the ancient legal proposition 28 29 30

107 N.Y. App. Div. 335 (1905). Thousand Island Steamboat Co. v. Visger, 179 N.Y. 206 (1904). 107 N.Y. App. Div., at p. 336. The italics are the writer's.

RIPARIAN RIGHTS

57

the suggestion by an appellate court that the ancient kingly jus privatum, while it might not pass to an American State, could pass in all its panoplied majesty to a mere municipal corporation. Such a doctrine was, of course, inconsistent with the decision of the Court of Appeals in Coxe v. State,31 holding that the State inherited the foreshore in a purely governmental capacity and could not grant it out for speculative purposes—"a sovereign, not a proprietary right." In the Court of Appeals the argument made on behalf of the town was that: 1. T h e ancient grant to the town of Brookhaven must be construed in the light of the law as it then stood. This law was to be found in Attorney-General v. Philpot and some of the other cases heretofore referred to. 2. T h e rights of the town as so interpreted were vested rights and could not be disturbed without compensation. T h e claim of the town, if its analysis of the situation was well-founded, led to a grave constitutional question. T h e Supreme Court of the United States has very recently held that a State court cannot by a change in its common law deprive persons of the enjoyment of something that had theretofore been considered property or a necessary incident thereto. 32 Had the Court of Appeals actually declared not to be a property right something which when the royal grants were made had been property, this change in the law might well have been claimed to impair the obligation of contract and to constitute a taking without due process. It might, I believe, have been a sufficient answer to the town's position to say that their view of the English law was not sound. Prior to the adoption of the English common law by the State 33 there was, as has been indicated, no valid or 32 33

144 N . Y . 396 (1895). M u h l k e r v. H a r l e m Railroad Co., 197 U . S . 544 (1905). '777-

5«

THE LAW IN AN ERA OF CHANGE

adequate precedent to the effect that a structure erected on the foreshore by a riparian owner in order to give him access to the navigable portion of the water, was, in and of itself, a trespass or encroachment on the King's soil. The whole doctrine of purpresture might well have been regarded as merely an ingenious theory of overzealous and unscrupulous Crown lawyers which, at least in 1777, had not become a settled part of the common law. The Court of Appeals, while not treating the question in exactly this fashion, reached a similar result, and quite as effectively relegated the jus privatum to the very proper category of legal antiquities. In a most erudite and interesting opinion, Judge Gray held that, assuming the English law to be as claimed, yet— The adoption by the people of this state of such parts of the common law, as were in force on the 20th day of April, 1777, does not compel us to incorporate into our system of jurisprudence principles which are inapplicable to our circumstances and which are inconsistent with our notions of what a just consideration of those circumstances demands. . . . "no doctrine is better settled than that such portions of the law of England, as are not adapted to our conditions, form no part of the law of this state." 34 The jus privatum of the crown, by which the English king was deemed to own the soil of the sea and of navigable rivers, in his own right, rather than as a sovereign holding it in trust for his people, however applicable to the conditions in Great Britain, were totally inapplicable to the situation of the colonists of this country. In Gould on Waters, the author remarks, as to this, that "there is no evidence that the jus privatum . . . was ever asserted in the colony as the right of the Crown, or that it has, until recently, been claimed by the States; but there is, on the contrary, in my opinion, the strongest evidence that this right has been abandoned to the proprietors of the land from the first set34

Town of Brookhaven v. Smith, 188 N.Y. 74 (1907), at p. 79.

RIPARIAN RIGHTS

59

tlement of the province and exercised by them to the present day, so as to have become a common right and thus the common law." « Here at last the coup de grâce has been given to the old doctrine. The elaborate structure invented by the keen but time-serving Digges, adopted by the Stuart kings, sanctioned by subservient judges and finally through the invincible English love of precedent become part of the common law, has at length died in the year 1907 as the consequence of a lawsuit over a little dock on a Long Island shore. The opinion further refers to the fact that riparian owners have everywhere made their right of access available by building piers or wharves and have done so without interference by the State where superior public rights have not been obstructed. These interests must be very large and if we shall hold with the English commonlaw doctrine, that they are purprestures, or unlawful encroachments upon the proprietary rights of the state . . . it would result in causing a very grave loss.38 The New York cases are fully reviewed and it is shown that succeeding cases had completely and admittedly overruled the case of Gould v. Hudson River R.R. Co., that the right of access of the riparian owner and the fact that this right constituted property had been frequently and emphatically recognized and repeatedly said to include the right to build a wharf. In answer to the suggestion that these expressions in the cases referred to, notably the Rumsey case and Thousand Island Steamboat Co. v. Visger, were mere dicta, the Court said: While it may be true that what was said, as to the measure, or substance, of the riparian owner's right of access from his upland 35

Ibid., at p. 80.

36

Ibid., at p. 80.

6o

THE LAW IN AN ERA OF CHANGE

to the navigable body of water in front of it, was not essential to the decision of the precise issue, it was, nevertheless, the deliberate and careful expression of an opinion as to that right and one not altogether impertinent to the decision of the particular case. As establishing the rule of law in this state upon the extent of a riparian owner's right, the decision in the Rumsey case has been followed, and acted upon, by the Appellate Division of the Supreme Court, in at least three of the judicial departments.37 The opinion summarizes the whole situation in the following concise expressions: So I conclude that the question is not what was the commonlaw doctrine concerning a riparian owner's right in the foreshore, or tideway; but what that right has been construed to mean by the courts of this state. The town of Brookhaven acquired its title under the royal grants; but it holds it in trust for the members of the community and, if we admit that the plaintiff, Post, as its lessee, took exclusive rights under its lease, they cannot avail to abrogate, or to destroy, a right, which appertained to a riparian ownership, to make available the easement, or right of access, by the construction of a landing pier, or wharf. For these reasons, I advise that the judgment below be reversed and, as the controversy does not depend upon the facts, that the complaint be dismissed; with costs to the appellants in all the courts.38 The old doctrine, however, died a hard death, for we find an elaborately erudite dissenting opinion written by Judge Hiscock and concurred in by Judges Vann and Werner. Judge Hiscock takes the view that at the time the grants were made the King had, by English law, title to the foreshore, and the grants were in the nature of contracts to be construed and interpreted in the light of the law as it prevailed when they were made. T w o classes of rights existed in the King, the jus publicum and the jus privatum. The latter 37

1 8 8 N . Y . , at p. 83.

38

Ibid., at pp. 87-88.

RIPARIAN

6l

RIGHTS

was a property right and the title and right which he (the king) enjoyed in this capacity he could by virtue of his proprietary interest convey to a private individual, but always subject to the rights and privileges of the people at large comprehended within the definition jus publicum. . . .3® An unauthorized obstruction, injuring the jus publicum by impeding or in any manner interfering with the common right of the public to navigate and use the waters was and is a nuisance and to be abated as such. A purpresture relates, on the contrary, to the jus privatum. It was and is an invasion of the right of property in the soil while held by the king or the people. It might or might not also be a nuisance. . . .40 Thus we find that all of the expressions in these cases tending to support appellants' proposition are rather by way of illustration and amplification of what was essentially involved than otherwise, and moreover that directly or indirectly they are based upon the Yates case which, upon this point, can no longer be regarded as authoritative.41 The doctrine of the Brookhaven case has very recently been reaffirmed and distinguished in the case of Barnes v. Midland Railroad Terminal Co.,*2 decided November 10, 1908. The owner of lands upon the Staten Island shore had constructed a pier connecting his uplands with the sea, but in addition, he had placed under the pier a fence or barrier apparently designed for the purpose of obstructing the passage along the shore. The question argued in the case was whether the riparian owner's rights in the foreshore were so exclusive as to enable him to erect a barrier which prevented the public walking along the beach. The Court took the view that while, under the Brookhaven case, the owner had a right to erect a pier which might incidentally be an obstruction to pedestrians on the foreshore, nevertheless, this right was limited to the necessities of the situation, and that in the case at bar the barrier under the pier was unnecessary for the 39 41

Ibid., at p. 90. Ibid., at p. 102.

40 42

Ibid., at p. 91. 193 N.Y. 378 (1908).

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T H E L A W IN AN ERA OF CHANGE

riparian owner's purposes of access and was an interference with the rights of the public to pass along the foreshore. This decision does not seem to in any way conflict with or encroach upon the doctrine of the Court in the Brookhaven case. There are, however, some remarks which may be taken to indicate that the death struggles of the ancient jus privatum are not quite over. The Court says: T h e same reasons which underlie the decision in the Brookhaven case as to the rights of littoral and riparian owners apply with even greater f o r c e to the right of the public to use the foreshore upon the margin of our tide waters f o r fishing, bathing and boating, to all of which the right of passage m a y be said t o be a necessary incident. E x c e p t in so far as the jus privatum of the C r o w n has devolved upon littoral and riparian owners, that right n o w resides in the people in their sovereign capacity. T h i s is the logical result of our decision in the Brookhaven case, and it is in harmony with the development of our history and the spirit of our institutions. 4 3

I incline to believe that it is not some fragment of the discredited and dismembered jus privatum that now resides in the right to walk along the shore and to pass over the beach between high- and low-water marks. It seems to be properly included in the jus publicum and appears analogous to the right of the public to pass in the boat over the foreshore when the tide permits it. In order to sustain this right, it is not necessary to invoke the shade of the dead prerogative doctrine, for as the opinion itself, in referring to the Brookhaven case, says: the jus privatum of the c r o w n , b y which the sovereign of E n g land was deemed to be the absolute owner of the soil of the sea and of the navigable rivers, w a s totally inapplicable t o the conditions of our colonies when the c o m m o n law was adopted b y «s Per Werner, J., 193 N.Y., at p. 384.

RIPARIAN RIGHTS

them; and that this right, from the first settlement of our province, seems to have been abandoned to the proprietors of the upland so as to have become a common right, and thus the common law of the State.44 As the referee found that the riparian owner had a grant of land from the State, which grant contained a condition that neither he nor his successors should erect any obstruction of any kind in or upon the land lying between the lines of the high- and low-water marks as they now exist, the case might easily have been made to turn upon the terms of the grant. The Court, however, seemed to be clearly of the opinion that the terms of the grant did not affect the riparian rights, but that the right to build a wharf does not include the right to obstruct the public passage unless such exclusion be necessitated by the nature of the wharf itself. It remains to be seen whether a riparian owner would be allowed to build a solid pier which would necessarily prevent all movement along the shore. W e can only say that in view of the Brookhaven case and the Midland Railroad case, this problem would probably be determined by reserving as a question of fact the proposition as to whether that particular kind of a pier was suitable and necessary to the premises in question. T h e Court indicates this pretty clearly in the following apposite language: It is enough to say that either as littoral owner or by virtue of its letters patent, the defendant had the right to construct and maintain a pier that was reasonably adapted to the purpose for which it was primarily intended, and that was to provide a means of passage from the upland to the sea. T o the extent that the reasonable exercise of this right necessarily interfered with the right of the public to pass along the foreshore, the former was paramount and the latter was subordinate; and the logical corollary to that proposition is that, just in so far as the attempted 44

Ibid.

THE LAW IN' AX ERA OF CHANGE

64

exercise of the littoral or riparian right passed the prescribed bounds of necessity and reason, the conditions were reversed and the right of passage along the foreshore remained the paramount right. 4 5

The Court did not advert to Blwidell v. Catterall,*" in which it was held that the public had no right to bathe or walk along the beach. The Barnes case is also interesting from another standpoint; the question as to whether a riparian owner by reason of a grant of the foreshore from the State would have superior rights to one who did not have such a grant, has been a mooted subject for years. The opinion seems to assume that the riparian owner's right would be the same in either event, as the State could not surrender any of its public rights by a transfer of the title to the soil. This seems a perfectly logical deduction from the Brookhaven case, which by abolishing the jus privatum really prevents the State from transferring anything, since the naked title to the soil can give no part of the jus publicum, which is all that the State has and which it possesses regardless of the question of the fee ownership in the foreshore. While this point may not be definitely determined by either of the cases in question, it would seem to be a corollary from the doctrine of both. Fee in the foreshore may thus become a purely academic question affecting neither the rights of the public nor the rights of the riparian owner. It is frequently the proud boast of devotees of the English law that "the common law broadens down from precedent to precedent"; on the other hand, the civilian is apt to tell us that the common law by its slavish adherence to the rule of stare decisis has rather a tendency to narrow down from precedent to precedent. Both beliefs probably express certain phases of the truth. The history of civil liberty aptly illustrates the correctness of the first view, at least in regard to 45

193 N.Y., at p. 386.

40

s B. & Aid. 268 ( 1 8 : 1 ) .

RIPARIAN RIGHTS

«5

one great department of human activity, while the law of real estate, still so full of archaic matter despite the efforts of legislation to rationalize, clarify and simplify its ancient and largely rudimentary structure, may well justify the other. Perhaps the tendency to a broadening development in matters affecting human liberty is explicable upon the theory that as law must ultimately reflect the dominant opinion of the time, the growth of English civil liberty was due rather to the pressure of enlightened public opinion from outside the bar, than to the efforts of the lawyer class itself; on the other hand, the law of real estate was developed wholly by lawyers for lawyers and nearly always in hostility to any attempts at legislative change, until it became a game for experts whose intricacies passed the common understanding, almost as much as did the Hegelian philosophy. The mere doctrine of precedent may, if used by the courts in mechanical fashion, make law as unchangeable as that of the Medes and Persians. A precedent isolated from the atmosphere of contemporaneous history is necessarily unintelligible; it must be considered in the light of the circumstances and the social conditions under which it arose. The famous Dred Scott case 47 considered entirely apart from the history of the times and the causes that led up to it, would make a feeble and inadequate basis upon which to build. W h y should generations of judges have considered the Philpot case of more value in guiding the judicial footsteps than the "Great Remonstrance," which denounced the doctrine of that case as usurpation. If class opinion tends to narrowness, is it not largely because the following of precedent is regarded as a virtue in and of itself, rather than as a means of reaching wise and just results by applying the collective and traditional wisdom of generations of judges to the solution of legal problems? Yet 47

Drcd Scon v. Sanford, 19 How. 393 (U.S. 1856).

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T H E L A W IN A N ERA OF CHANGE

when this useful principle is applied mechanically and unhistorically, it may easily result in fastening upon our jurisprudence doctrines which originated neither in collective nor in individual wisdom but which were merely the result of class greed, judicial subserviency or passing public clamor, none of which causes can be trusted to create sound precedents. The point discussed in this article is a mere incident in the broad domain of riparian rights, but it involves an interesting bit of legal history, for we can see the origin and watch the development of a legal doctrine until the day when we assist at its final obsequies. As a study in legal morphology its discussion may seem "worth while."

4

The Eighteenth Amendment: Making Law Unworkable A PRELIMINARY

MEMORANDUM

FOR MR. COUDERT'S TESTIMONY IN FAVOR OF THE REPEAL OF THE EIGHTEENTH AMENDMENT GIVEN BEFORE THE HOUSE JUDICIARY COMMITTEE FEBRUARY

1930

T

HE Eighteenth Amendment has aroused questions, passions, and political problems not known in this country since the Civil W a r and the evil days of the Reconstruction. That Amendment was revolutionary in itself, and its effects after ten years of attempted enforcement have proved wholly baleful. Should Congress actually and in full good faith attempt to enforce completely and literally the Eighteenth Amendment, there would be either a complete political revolution or the nation would head toward civil war. Probably the instinctive feeling that this is so, as well as the halfheartedness of many political supporters of the Amendment, have obviated up to the present time, any real attempt at complete federal enforcement. Perhaps the recollection of the attempted reconstruction of the South through federal bayonets has not completely faded in the minds of many of the ardent drys. As it is, the consequences of the attempts at federal enforcement have been sufficiently serious and will grow more and more so as more vigorous enforcement is attempted. The Eighteenth Amendment must be repealed because it

68

T H E LAW IN AN ERA OF CHANGP.

is destructive of the position of the States in our federal system. Social experiments possible in the States are not possible in the federal government. Sumptuary legislation regulating the lives of one hundred and twenty million people through the creation of a colossal bureaucracy at Washington would mean the end of the Union as it has been understood from its inception up to the present time. T h e Eighteenth Amendment, whatever constitutional forms may have been observed, is in essence completely anticonstitutional. T h e liquor traffic presents a sumptuary problem which is in its essence a domestic concern and should be dealt with in each locality in accordance with the habits, traditions, and differing opinions prevailing among the great population of our States and territories. Would it not be absurd to attempt to apply to the habits of the metropolitan community of New York regulations deemed fitting for Alaska or even the Sandwich Islands? T h e creation at Washington of a huge bureaucracy to spy upon the homes, dinner tables, and clubs of a hundred and twenty million people is repugnant to fundamental principles of Anglo-Saxon liberty, local self-government, and individual personal dignity. T h e great advantage of our federal union is that it permits in the various States legislative experiments and attempted reforms which when unsuccessful are easily remedied but which same experiments when practiced upon the whole nation must lead to utterly disastrous consequences. This honest opposition by masses of decent people renders the law nugatory, unenforceable, and a travesty upon real law which means the crystallization of settled custom or the formulation of the common consciousness of a community. N o government is powerful enough to make a crime of that which a great body of its citizens believe an innocent act. Prosecution then becomes persecution, and law ceases to be

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69

respected as such. This is the history of intolerance, religious or otherwise, from early times. In the beginning of our Republic, the State sovereignty doctrine threatened the life of the nation; today a federal government despotism in matters of personal habit or hygiene is equally threatening serious disruptions. T o attempt to give the dignity of law to the collective volition of a fanatically minded bloc, even though it may command a temporary majority throughout the Union, in defiance of the conscience and wishes of a great mass of lawrespecting citizens, creates an impossible situation. The Eighteenth Amendment is not only anti-constitutional, but it has proved itself futile. T h e individual can only be reformed through his own efforts and not by external governmental coercion. Fifty percent of the people of the United States cannot be made statutory criminals by any antisaloon league or because of the religious prejudices of any sect or denomination. Just as federal bayonets, after twelve years of hideously unsuccessful efforts to maintain the Fifteenth Amendment, were finally withdrawn from the States of the South, so must the mailed fist of Washington bureaucrats be withdrawn from the States of this nation, if internal good will, peace, and law are to be restored to our people. Let us not blink the facts. Popular feeling has been more thoroughly aroused than at any time since the Civil War. It is a dangerous thing in Anglo-Saxon communities to violate the rights and liberties of the individual citizen. It has proved unsuccessful to the government that attempted it ever since the date of the Great Charter. People who care nothing for alcoholic beverages, and who are indifferent to the question as one of personal appetite are outraged at the shootings, arrests, prosecutions, and persecutions of men guilty of no moral crime.

THE LAW IN AN ERA OF CHANGE

I do not believe that any mere modification of the Prohibition Act could effectively cure the evil or restore our constitutional balance. Matters of concern to sumptuary personal habit must be left to the States. The attempt to transfer this power to the federal government is utterly wrong in theory and has proved a failure. The cause of temperance has been greatly retarded and a reign of lawlessness prevails. A corruption of public officials, a contempt of the prohibition law and the Eighteenth Amendment, with its concomitant unrest and general demoralization, are found throughout the nation. This condition calls for the attention of Congress and we insist it can only be remedied by the elimination from our Constitution of this revolutionary, misplaced, and miscalled amendment.

5 Some Reminiscences of James C. Carter FROM THE A M E R I C A N BAR ASSOCIATION NOVEMBER

B

JOURNAL

1946

Y REASON of a well-known psychological law, our early impressions seem to be stronger and more indelible than our experiences in later life. Perhaps that is why Mr. Carter's personality made such an impression upon me in my early youth, during college days and my apprenticeship at the Bar. He was an old friend of my father, and it was therefore my privilege to see him and to hear him from time to time. He was a lawyer of the old school, a barrister and a philosopher. He believed in the law as the outcome of human reason, was a great orator in the Greek sense of the word, a master of language but with the knowledge that it must be the resultant of human reason and be directed to the solution of human problems. It is the fate of the lawyer to leave little impression upon history unless he chances to have occupied a prominent position in the world of politics or government. The impression that Mr. Carter made upon the law is recorded in the decisions of the judges. These decisions alone are the materials upon which permanent historical reputations in the law are built, and the counsel who furnish so much of the labor and learning soon pass into the limbo of oblivion. The tradition of all great lawyers is a brief one, and the name of James C. Carter, which bulked so large for half a century at the N e w York Bar, is probably known to few save the older lawyers and judges with whom he came into con-

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tact. He possessed not only a most impressive personality, as was evidenced by those who heard him almost daily in the law courts and who nick-named him "boanerges," the son of thunder, but he had a philosophy of the law from which he never deviated throughout his long career. His thesis ever maintained was that Austin and the orthodox school of the day were all wrong in believing that law was a command. He insisted that statute law was only effective when declaratory of the existing law or custom itself, but that if it was contrary to the customs and usages of a people it was merely detrimental and would be beaten by subterfuge and ultimate practical annulment. It was for that reason that, in his many contests with James Dudley Field over the Field Code, he finally triumphed in having that Code rejected by lawyers and legislators alike. Mr. Carter believed that the law developed only through judicial decision and the experiences of a growing civilization as evidenced by the decisions of the courts. T o him law was the crystallization of customs and of morals. It was the result of a constant series of experiences, and these embodied human wisdom. In his time there was little administrative law, and I am sure that such as there was he did not regard as law at all. His ideas, which found utterance in many great law cases in the higher courts in N e w York and in the Supreme Court of the United States, were finally embodied, during the latter years of his life, in a series of twelve lectures scheduled to be delivered at the Harvard L a w School when sudden death terminated his brilliant and scholarly career. I can see him now working at a desk in the Bar Association Library on one of his briefs, writing it out in his own hand, and remaining there day after day until the brief was completed. He always made his own briefs, and they were models of learning and logical reasoning on the fundaments of

R E M I N I S C E N C E S OF J A M E S C. CARTER

73

his case. On examining the report of one of his arguments in a case in the Supreme Court you will find, in parentheses, a phrase to the effect that "at this point, Mr. Carter proceeded for one hundred pages to discuss the history of uniform railroad rates." With all this scholarship, erudition and absorption in the law, what struck the adolescent observer most was Mr. Carter's earnest and powerful personality. He always seemed to be exposing some great thesis bearing upon human conduct and human right. While never seeking public office, he was ever ready to lend his great weight and talent in righteous causes. As a young man he made a reputation in the Tweed prosecutions. He had little sense of humor, nor did he possess that persuasive power in speech which so often proves useful in bringing courts around to the views of the advocate; but no one could hear him speak, whether in public or in private, without realizing his earnestness, his desire for the establishment of the truth, and a kind of over-powering sincerity. There was in Mr. Carter the dogmatism of the prophet, but also the compelling character of the prophet in his very earnestness. He belonged to a small group of barristers, scarcely more than a half dozen in number, who in the latter years of the nineteenth century were almost constantly engaged in litigation in the N e w York Courts. One of his frequent opponents as well as his colleague was Mr. Joseph H. Choate. They were close friends, and upon Mr. Carter's death Mr. Choate wrote a memorial that is a literary gem as well as a vivid picture of the man himself. Choate—kind, fastidious, cynical, caustic; and Carter—solemn, earnest, philosophical. They seemed in strange contrast. I have listened to them both in the courts with fascinated interest, and equally admired the divergent qualities that made

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THE LAW IN AN ERA OF CHANGE

these two leading barristers outstanding in the legal profession. When a neophyte at the Bar, I remember an experience of my own with Mr. Carter that must have amused those in the court. He and my father were opponents in an important case involving an attempt to extinguish a corporation by indirect methods, other than those prescribed by statute. When one of the minor motions in the case came up, my father requested me to go to court to oppose it; and when I arrived there I found that Mr. Carter himself, and not one of his juniors, was to argue the motion. I was naturally somewhat perturbed; but when it came my turn to oppose him, I raised some procedural objections which seemed valid to me and were calculated to defeat the motion, which he had argued so fully by bringing in the fundaments of the case and the objects at which he was aiming. When I finished speaking, he came over in most friendly fashion, and putting his arm on my shoulder he said, "My boy, your father would never have taken such a point as that." I must say that I felt a sense of relief when the judge said he would reserve decision and give the matter full consideration. One of Mr. Carter's most important arguments was made in the case of the United States v. Trans-Missouri Freight Association.1 He contended against the unworkability of the Sherman Act and the necessity of construing it as merely declaratory of the common law. I have often thought that had his argument been adopted by a majority of the Court the course of the anti-trust prosecutions might have taken a very different and perhaps much more intelligent direction. In that case he made clear his philosophy of the judge-made law and the ineffectiveness of statutes as against common law. 1 1 6 6 U . S . 290 ( 1 8 9 7 ) .

REMINISCENCES OF J A M E S C. CARTER

75

Of all Mr. Outer's cases, his most distinguished case was that of the Bering Sea Arbitration. An account of that great arbitration, the significance and importance of which was never sufficiently appreciated by the Bar, has recently been written by Mr. William Williams, who was Assistant Agent in the case, and has been printed in the American Journal of International Law for October, 1943.2 It is an account which would well repay reading by any lawyer interested in the history of arbitration and especially by those interested in Anglo-American relations. In it is found the peculiar feature that the Court was called upon to play a double role. In the first place, the Court was to decide certain definite questions of law as to the rights of the United States in the Bering Sea and its rights of property, protection or possession in the great seal herd. However, in addition to these questions, and assuming them to be decided in the negative, then the Court was to recommend certain regulations designed to protect the herd from the rapid extermination with which open sea capture threatened it. The argument took the widest extension, involving factually the habits of this strange animal in traversing the seas for thousands of miles during certain seasons of the year, and then returning to its breeding grounds in the United-States-owned Pribilof Islands. The leading counsel for the United States, in addition to Mr. Carter, were Edward J. Phelps and my father, Frederic R. Coudert. They were opposed by Sir Charles Russell (later Chief Justice of England), Sir Richard Webster, who followed Sir Charles as Chief Justice, and Sir Christopher Robinson, of the Canadian Bar. It fell to Mr. Carter to open the case. He spoke throughout full court sessions during a period of some eight days. He answered the many questions of the Court, and fully dis- Williams, Reminiscences of the Bering Sea Arbitration, 37 AMERICAN J O U R N A L OF INTERNATIONAL L A W 5 6 2

(1943).

7 Article xix The vessels of war, public and private, of both parries, shall carry freely, wheresoever they please, the vessels and effects taken from their enemies, without being obliged to pay any duties, charges, or fees to officers of admiralty or of the customs, or any others; nor shall such prizes be arrested, searched, or put under legal process, when they come to and enter the ports of the other party, but may freely be carried out again at any time by their captors to the places expressed in their commissions, which the commanding officer of such vessel shall be obliged to shew. But conformably to the treaties existing between the United

Treaty

With France, 1800 Article xxiv

When the ships of war of the two contracting parties, or those belonging to their citizens which are armed in war, shall be admitted to enter with their prizes the ports of either of the two parties, the said public or private ships, as well as their prizes, shall not be obliged to pay any duty either to the officers of the place, the judges or any others; nor shall such prizes, when they come to and enter the ports of either party, be arrested or seized, nor shall the officers of the place make examination concerning the lawfulness of such prizes; but thev may hoist sail at any time and depart, and carry their prizes to the places expressed in

THE APPAM CASE

States and Great Britain, no vessel that shall have made a prize upon British subjects, shall have a right to shelter in the ports of the United States, but if forced therein by tempests or any other danger or accident of the sea, they shall be obliged to depart as soon as possible.8

20 5 their commissions, which the commanders of such ships of war shall be obliged to shew. It is always understood that the stipulations of this article shall not extend beyond the privileges of the most favored nation.®

Relying upon the treaty of 1800, G e n e t undertook to have French consuls establish prize courts in American harbors and to use such harbors f o r fitting out privateers to p r e y upon British commerce. G r e a t Britain naturally protested and much diplomatic controversy ensued. Finally, M r . J e f ferson stated the views of this government, as follows: The doctrine as to the admission of prizes, maintained by the Government from the commencement of the war between England, France, etc., to this day has been this: The treaties give a right to armed vessels, with their prizes, to go where they please (consequently into our ports), and that these prizes shall not be detained, seized, nor adjudicated, but that the armed vessel may depart as speedily as may be, with her prize to the place of her commission; and we are not to suffer their enemies to sell in our ports the prizes taken by their privateers. Before the British treaty, no stipulation stood in the way of permitting France to sell her prizes here; and we did permit it, but expressly as a favor, not as a right. . . . These stipulations admit the prizes to put into our ports in cases of necessity, or perhaps of convenience, but no right to remain if disagreeable to us; and absolutely not to be sold. 10 8

Treaties, Conventions, Vol. 2, pp. 1492-493. Treaties, Conventions, Vol. 1, p. 504. 10 Jefferson to Gallatin, Aug. 28, 1801, 1 Gallatin's Writings 41-42, as quoted in John Bassctt Moore, A Digest of International Lavs (U.S. Government Printing Office, 1906), Vol. VII, Section 1302. 9

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ARBITRATION AND INTERNATIONAL L A W

And Mr. Pickering, Secretary of State in 1796, held that the sale of prizes brought by armed ships of the French Republic into our ports was not a right to which the captors were entitled either by the law of nations or our Treaty of Amity and Commerce with France. Thus, even at a time when the general rule was much less firmly established than at present and when every consideration dictated the most sympathetic treatment of France, prizes even when arriving with their captors were only allowed temporary stay in our ports. The possibilities which might have arisen from giving to the treaty a wider interpretation were vividly impressed upon the officials of Washington's administrations, and had it not been for the firm attitude adopted by them in preventing our ports from being used as a deposit for the spoils of war, we should have been dragged into war long before 1812. The German Government claimed from the beginning of this litigation that the Appam had been sent into Newport News in reliance upon Article xix of the Prussian treaty. It was quite evident that they intended to make of this a test case. Had they prevailed in their contentions, United States ports, if the Government remained neutral, would have been of the utmost convenience to them in the not improbable event of submarine operations along our coast. Such operations could have been much more effectively carried on here than in the waters surrounding the British Channel and would, in fact, not only have stopped shipping so effectively as to create a blockade here, but would have created for the German Government a fine fleet of merchant vessels for use after the war. It is, therefore, not to be wondered at that the German Foreign Office felt that it had discovered in Article xix a war instrument of superlative value. The question was raised in foro before the State Department by Count Bernstorff, late German Ambassador. He in-

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sisted that the Appam was, under the treaty, outside the jurisdiction of our courts, and that she might remain sheltered in our ports indefinitely. The State Department gave very careful consideration to the question and held the treaty inapplicable. As it would be impossible to condense the very succinct reply of the Secretary of State, whose statement of the law was approved by the Supreme Court of the United States, I cite it as follows: At the outset it may be pointed out that as the object of this provision was to mollify the existing practice of nations as to asylum for prizes brought into neutral ports by men-of-war, it is subject to a strict interpretation when its privileges are invoked in a given case in modification of the established rule. By a reasonable interpretation of Article xix, however, it seems clear that it is applicable only to prizes which are brought into American ports by vessels of war. The Appam, however, as your Excellency is aware, was not accompanied by a ship of war, but came into the port of Norfolk, alone in charge of a prize master and crew. Moreover, the treaty article allows to capturing vessels the privileges of carrying out their prizes again "to the places expressed in their commissions." The commissions referred to are manifestly those of the captor vessels which accompany prizes into port and not those of the officers of the prizes arriving in port without convoy, and it is clear that the port of refuge was not to be made a port of ultimate destination or indefinite asylum. In the case of the Appam, the commission of Lieutenant Berg, a copy of which was given to the collector of customs at Norfolk, not only is a commission of a prize master, but directs him to bring the Appam to the nearest American port and "there to lay her up." In the opinion of the Government of the United States, therefore, the case of the Appam does not fall within the evident meaning of the treaty provision which contemplates temporary asylum for vessels of war accompanying prizes while en route to the places named in the commander's commission, but not the deposit of the spoils of war in an American port. . . . Under this construction of the treaty the Appam can enjoy only those privi-

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ARBITRATION AND INTERNATIONAL LAW

leges usually granted by maritime nations, including Germany, to prizes of war, namely, to enter neutral ports only in case of stress of weather, want of fuel and provisions, or necessity of repairs, but to leave as soon as the cause of their entry has been removed. 11 T h i s ruling of the Department of State thus accords with American precedent as established in the case of the treaty with France, and further emphatically states the general international rule. As the Supreme Court puts it: Certainly such use of a neutral port is very far from that contemplated by a treaty which made provision only for temporary asylum for certain purposes, and cannot be held to imply an intention to make of an American port a harbor of refuge for captured prizes of a belligerent government. 12 O n the broad questions of international law, in addition to those heretofore considered, counsel for the German G o v ernment, especially in their argument before the Supreme Court, based their claims largely, if not mainly, upon lack of jurisdiction in the court to entertain such a suit. T h e rights of the British ow ners, so the argument ran, had been extinguished upon the capture of the vessel, which in itself transferred title to Germany, and, even admitting that the United States might have excluded such vessels as a matter of law or policy from their ports, no court was empowered to restore such a vessel to the original owners, who had lost every scintilla of right and title therein. This argument pressed with vigor, might seem upon superficial examination to present considerable plausibility. It was, however, of a highly technical character and is scarce alluded to in the opinion of the Court. It was admitted that from the beginning of the Republic our courts have taken jurisdiction: ( i ) in cases of capture in 11

234 Fed., at pp. 394-95.

12

243 U.S., at p. 153.

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209

our territorial waters; and (2) in cases where the capturing vessel had fitted out or increased her crew or armament in an American port. The jurisdiction of our courts in this class of cases was directly derived from the Constitution, and not dependent upon statutory enactments. In the famous case of the Betsey,13 decided prior to the enactment of the first neutrality statute, the Supreme Court held that the Federal Courts had jurisdiction in all such cases, and the proposition has not since been questioned. It was strenuously endeavored to differentiate these cases on the ground that, as there had been no illegality in the capture, complete title had passed and the original owners were thus deprived of all standing in court, and that the question of prize was one for the German Prize Court, over which it had exclusive jurisdiction. The vice of this argument, however, lay in the assumption that full title passed at the moment of capture. It ignored the fact that while the vessel remained in the condition of a mere prize, recapture might be effected and in the event of recapture the rights of the lawful owner would revest. From early times it has been held that mere capture is not sufficient to divest the title of the owner. The requirements for such divestment have fluctuated somewhat. Early cases held the rule of pernoctation, or twenty-four hours' firm possession, but later cases held the rule of infra praesidia, and finally the rule now established is that the vessel must be brought within the jurisdiction of the proper prize court and that the rights of the owner are not completely divested until a decision is there had. When a vessel captured by an enemy warship is recaptured, we say that the title of the original owners reverts or is reestablished. It might be more exact to say that their right, menaced with extinction by the establishment and perfection of an adverse right, has been freed from 13

3 Dall. 6 (U.S. 1794).

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ARBITRATION AND INTERNATIONAL LAW

this menace; and that the full exercise of their right has again become possible. This construction is more satisfactory because it is clear that, if the enemy state had acquired full title by capture, recapture would logically vest title not in the original owners, but in their Government. The rule is as old as the Consulates Marts. It could not be better stated than in the opinion of Justice Storey, in the case of the Star: It is admitted, on all sides, by public jurists, that in cases of capture a firm possession changes the tide to the property; and although there has been in former times much vexed discussion as to the time at which this change of property takes place, whether on the capture, or on the pernoctation, or on the carrying infra praesidia of the prize; it is universally allowed that, at all events, a sentence of condemnation completely extinguishes the title of the original proprietor, and transfers a rightful title to the captors or their sovereign.1* This rule is indeed in conformity with common sense. Had the Appam attempted to go to the nearest German port it would have risked almost certain capture by British cruisers; it followed the much safer course of travelling more than twice the distance and taking refuge in an American port. It was thus by the interposition of an American port between the Appam and the British fleet that the German Government hoped to save the vessel for their future benefit. Had not this illegal use of an American port been resorted to the vessel would in all human probability have been recaptured and restored to its former owners. The rule of law is thus in consonance with the dictates of common sense. Bluntschli himself says: i. Up to the time when the tribunal has taken jurisdiction and condemned the prize the fate of the latter is uncertain; neither 14

j Wheat. 78 (U.S. 1818), at p. 86. T h e italics are the writer's.

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THE APPAM CASE

the captor nor his government have as yet rights over the vessel or its cargo, the prize resting up to the date of the judgment merely upon the right of the stronger; the seizure may be annulled by force. This is a special application of the rights of post liminium, one in integrum restitutio. 2. The recapture has effects essentially negative; it annuls the capture (prise). It does not even constitute a new capture (prise). T h e recaptor must then respect the goods which he has saved from the hands of the enemy and for his service can only claim a recompense. 15 And he again states the rule: " T h e recapture of captured vessels may take place so long as prize courts have not pronounced upon the validity of the capture." 1 8 W e find upon this point French and German in agreement, for one of the leading modern commentators, Bonfils, formulates the proposition very happily thus: No. 1416. Recaptions. A merchant ship is captured by a hostile war vessel, then recaptured by a war ship of its own nation. What are the effects of this rescue? Do the ship and its cargo revert to their owners, or do they become the property of the recapturing government? From the point of view of jurisprudence this question, it would seem, ought to raise no difficulty. Until the judgment passed upon the validity of the capture shall recognize its legitimacy and shall order the confiscation of the ship and of the cargo, the captor has acquired no right of ownership. The right of the owner who has been dispossessed has been paralyzed but not extinguished. T h e recaptor can have no more right than those from whom he has recaptured the prize. The owner ought then to re-enter into possession of the property taken from him by violence. Such a decision is logical and in accordance with the spirit of justice. T h e solution of this question could be different only if it were assumed that the very fact of capture per se transferred to the captor the ownership of the captured ship and cargo. Under this 15

Bluntschli, Section 860, notes.

16

Bluntschli, Section 860.

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LAW

assumption whatever right the original captor had acquired by the capture would pass to the recaptor." This rule is embodied in the United States Prize A c t , U . S . Revised Statutes, section 4 6 5 2 . " It is, therefore, not to be wondered at that the Supreme Court promptly but effectively disposes of the question as follows: The violation of American neutrality is the basis of jurisdiction, and the admiralty courts may order restitution for a violation of such neutrality. In each case the jurisdiction and order rests upon the authority of the courts of the United States to make restitution to private owners for violations of neutrality where offending vessels are within our jurisdiction, thus vindicating our rights and obligations as a neutral people. 19 It is fortunate that in a case of such far-reaching importance, involving fundamental propositions of international law, both our Executive and our courts have passed upon the question after most mature consideration and have reached similar conclusions embodied in definite, authoritative decisions. 17 Henry Bonfils, Manuel de Droit International Public (2d ed.; Paris: Librairie Nouvelle de Droit et de Jurisprudence, 1898). The translation is Mr. Coudert's. [Ed. note] 18 The rule is now found in 34 U.S.C., Section 1158. [Ed. note] 10 The Appam, 243 U.S. 124 (1917), at p. 156.

V DANGERS AND DUTIES OF NEUTRAL AMERICA 1914-1917

began in /914., President Wilson issued the conventional proclamation of neutrality, and urged Americans to be "impartial in thought as well as action." It was an impossible prescription. For a time, indeed, many Americans were confused and apathetic. The war was far distant, it was too terrible to seem quite real, and its roots and its objects were alike almost incomprehensible. Before long, however, the sympathies and interests of Americans were keenly enlisted. Most of them, for fairly obvious reasons, inclined toward the side of the Allies. With Britain and the great Dominions the United States had an affinity of language, literature, ideas, and political and social institutions, as well W H E N T H E FIRST WORLD W A R

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i 9 i 4 — 1917

as a strong blood-bond; with France she had an ancient tie of sentiment; for Belgium a strong feeling of compassion. German acts and German propaganda alike were in the main irritating. As the United States became a source of munitions and supplies for both sets of belligerents, but particularly for the Allies, and as submarine warfare reached out into the Atlantic, the "war grew nearer and nearer. For a time after the Lusitania was sunk, it seemed but a step away. Once more, as during the Napoleonic struggle a century earlier, the country was gravely troubled by the task of maintaining its rights as a neutral. Once more men disagreed violently as to how it could stay out of the conflict—even more violently as to whether it should stay out. In this difficult period, with passions running high, Mr. Coudert earnestly tried to instruct and guide the American public. He wished the people to understand just what their rights and duties as neutrals were. He was convinced that they could not, and ought not, to be impartial in sentiment; he believed it a moral duty to support the Allied cause with sympathy and general approbation. It would have been better, he thought, had the American Government broken off diplomatic relations with Germany after the loss of the Lusitania. Brought by his legal duties into close relations with the British Government, he gained an insight into British views and motives which he was anxious to share with the Wilson Administration. His long letter of September, 191$, to Frank L. Folk, here published for the first time, illustrates this particular line of effort. Because he had seen the devastation of parts of France, and because he was certain that AngloFrench military weakness had contributed to the outbreak of war, he was eager to see the United States strengthen its defenses. This section includes his memorandum of May, 1915, on the National Security League, outlining the reasons for its formation the previous year, and its main objects; his address

NEUTRAL AMERICA:

I914-I917

in Brooklyn the following December on "The Role of America in the International Situationexplaining the dangers of an isolated position and a lack of armaments; his statement early in 1916 deploring the resignation of Secretary of War Garrison on the "preparedness" issue; and his Philadelphia address of April 29, ¡916, riddling the fallacies in the still general view that America needed no considerable army or navy. These papers are valuable for the illumination they throw on the history of the time. In their discussion of the duties and risks of neutral nations, they contain much that is still completely valid. The doctrine here set forth that neutrality is not an exalted moral position, and that peace and good morals are really indivisible in the modern world, has now been accepted in theory by the nations of the world, and written into the charter of the United Nations.

1 The Duty of Preparedness for War MEMORANDUM W R I T T E N FOR THE NATIONAL SECURITY MAY

T

19,

LEAGUE

1915

HE RECENT WORLD-STIRRING EVENTS have aroused us from a kind of complacent somnolence in which dreams of world peace predominated to a realization that even America might at some time be forced into unexpected, unwished-for conflict. T h e belief that peace might be preserved on the basis of public law and that treaties might be substituted f o r cannon has given place to a vivid realization that the predatory passions may flourish in a nation as in an individual and that when these passions are thoroughly aroused and are coupled with immense military strength, phrases, professions, treaties and international law must yield to a supposed law of necessity, finding expression in terms of shrapnel. It is because of this startling discovery that our people have been making so reluctantly, yet so surely, since August last, that the National Security League has been formed and asks public support. It is not the creation of a bellicose faction of military enthusiasts or chauvinistic hotheads. It is an organization of citizens whose public and private activities have always been predicated upon their predominant desire f o r peace and their unswerving belief in the preservation of law, public and private, as the safety of society. T h e y now come to you in the same spirit in which Washington went to his first Congress recommending measures " f o r the fulfilment of our

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217

duties to the rest of the world," and "again pressing upon you the necessity of placing ourselves in a condition of complete defense and of exacting from them the fulfilment of their duties toward us." The members of this Society have been criticized in somewhat irresponsible fashion as advocates of war and fomenters of international strife. It is evident that some of those who speak thus flippantly about the matter have given it little thought, although others may belong to that category of persons who believe the use of force never justifiable, even though it be employed in the defense of national existence. With these I have no quarrel. They are admirable idealists, useful in times of "piping peace" where their number is so small as to have no appreciable effect upon legislation and where their propaganda is confined to the realms of the ideal. There are others, however, who, while acquiescent in our possession of an army and navy, do not feel that it should be any larger or more efficient than at present. T o the latter, the question must be one of fact, and if they are convinced of the inadequacy of our present defense, they must join with us in asking that the situation be rectified. Our attitude is not new. It has been the position taken by the leading statesmen in this country since our Nation began and cannot be b e t f r exemplified than in the words of the Father of this Country and the author of the Farewell Address, the origin of America's neutrality in Old World conflicts. In a few words he stated our motto: "If we desire to secure peace, one of the most powerful instruments of our rising prosperity, it must be known that we are at all times ready for war." Jefferson maintained a similar attitude. None of us believes in war, for the sake of war, and most of us are more or less acquainted with its horrors. What little I saw of war personally with our forces, both here and in the

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West Indies, certainly did not encourage me to love it. Our sad lack of preparation in the insignificant Spanish W a r cost us many lives, for disease and disorder are more dangerous than bullets. What I saw last summer in France was infinitely more appalling: The arrival of the Belgians in Paris, the refugees on the road, the wounded dying in railroad stations, etc. I mention these facts so that you may not think I am misled by rhetoric or am an academic apologist for war. In June, 1913, I happened as a passing tourist to sit in the French Chamber of Deputies during the great debate between M. Jean Jaures, the leader of the Socialist Party and of the advocates of universal peace, and M. Barthou, First Minister of the Republic, on the question of the three-year law. This measure, designed in some degree to meet the formidable preparations which Germany was even then known to be making for war, was intended to keep the troops with the colors for a year longer and added to the armies on the frontiers some 2 50,000 combatants. In the name of humanity and in the most powerful speech against war and its horrors and in favor of disarmament that I have yet heard, M. Jaures hurled against the proposed law all the power of his unmatched eloquence and extraordinary erudition. The only answer made was that a powerful neighbor would in all probability attack, and that France might ere long be involved in a death struggle. The law was finally passed by a narrow margin, a great portion of the Chamber and a large part of the public siding with M. Jaures, bitterly opposing the threeyear law as a product of militarism, and the fears of its advocates as merelv fanciful. A year and a month later I happened to sit on a late July evening in a restaurant next to that in which the great leader and idol of the populists, Jaures, was in dastardly fashion assassinated. One might well have inferred wild fury among

DUTY OF PREPAREDNESS FOR WAR

219

the populace whose hopes, fancies, and aspirations he had so long articulated. Yet the unexpected happened: Perfect quiet reigned everywhere, and the man in the street contented himself with the remark that Jaures had been a dangerous dreamer, and that in pursuance of his hopes for impossible peace, he would have disarmed the nation and perhaps completely sacrificed the national life. I was much impressed by the juxtaposition of these two situations, and could not but realize that if France, in addition to the tremendous odds already against her in those August days, had been still short 250,000 first-line men, desperate indeed would have been the situation. I have no doubt that Jean Jaures was as sincere, as earnest, as patriotic as any of our citizens who scoff at the thought of possible war and deride the attempt to make due preparation therefor. Until recently, conscious of American intention to do no nation injustice, secure in the thought that we desired no territory, our citizens were prone to think that no one would attempt to do them an injustice so great as to force war; today this opinion, so sorely shaken when the public law of Europe was set at defiance by the invasion and sack of unhappy Belgium, has now been well-nigh completely shattered by the destruction, upon the high seas, of hundreds of noncombatant passengers on the Lusitania, a considerable portion of them American citizens. Unwillingly are we confronted with the possibility that whatever turn matters may take, some such catastrophic event may force us to defend ourselves. As the President recently put it, in those admirable words which so ably articulated the unanimity of a nation, there is "no threat lifted against any man, against any nation, against any interest but just a great solemn evidence that the force of America is the force of moral principle; that there is not anything else that she

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loves and that there is not anything else for which she will contend." Upon this moral principle we have erected our civilization; without it America has no meaning; defend it we must. I do feel that American civilization is worth something, that its integrity and preservation are worth fighting for; I believe in the Monroe Doctrine as far as it protects the northern part of the continent, including Central America, from invasion by European powers; I believe in our right to determine our own standards for American citizenship and in our duty to uphold the highest standards of international law. Believing these things, I am convinced that without adequate methods of military defense, our policies, principles, and purposes would go for nothing. In addition, we would be the victims of aggressions as certainly as China. Nor do I fear the development of militarism in the United States, by which I mean the subordination of moral forces and the dictates of international justice in which they have been crystallized, to a worship of mere material force. It would be inconceivable to my mind that the American people with their traditions, their nationality, based upon common aspirations and ideas of equal justice rather than on consanguineous heritage, can ever be dominated by mere desire for conquest and an acquisition of power through force. N o r is it possible that the very modest military establishment which the best opinion believes would be quite adequate to put this vast country beyond danger of foreign aggression should so far corrupt our fiber and distort our ideas that we should dethrone law among the nations and substitute organized violence. These fears seem to me wholly chimerical, mere phantom creations of theorists and dreamers. The immediate return both of North and South to the pursuits of peace after the Civil War affords an illustration stronger than any academic logic-chopping of the innate distaste of our

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221

people for militant aggression and their devotion to the idea that the military force is a mere adjunct of civil law for the purpose of preserving the only peace worth having—peace consistent with individual liberty and national dignity. It is because, I think, there are some things even worse than war, and some things more precious than human life, that I believe the United States should have an army and navy strong enough to compel respect for justice, civilization, and the dignity of small nations which Washington stood for. I cannot admit that the world has improved much since his time. The recent invasion of Belgium and the prosecution of the policy of "frightfulness" which culminated in the Lusitania tragedy would not seem to indicate it.

2 Neutrality: Its Permanent Difficulties and Present Perils NOTES FOR ADDRESS DELIVERED BEFORE THE LAW ACADEMY OF APRIL 2 2 ,

PHILADELPHIA

1915

I

NTERNATIONAL LAW since the beginning of the European conflict has become a matter of daily discussion. It is no longer deemed a kind of occult science, discoursed upon by an occasional professor of a university to a small audience of rather dilettante students. The United States has been so selfsufficient, so free from dangerous neighbors, and so occupied with practical concerns of everyday individual and domestic politics that those general rules of conduct constituting the public law of the world have received little attention, not only from the people generally, but even from active members of the Bar. The ordinary lawyer does not come into contact with these questions, at least in ordinary times of piping peace, and he is apt to look upon international law as a rather vague and hazy thing, having little actual importance. If he has given any consideration to the matter, he will be inclined to believe that it is something of a misnomer to call it law and that, having no force back of it, it is without sanction—"That vague body of comity among nations" as a learned friend of mine has termed it. I do not mean to discuss the abstract question of how far international law is law in the true sense of the word—as

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something that will be enforced by some kind of police. The discussion is interesting but utterly futile. Much of international law, in at least the general sense of the word, is already a part of municipal law. Much of it is embodied in treaties, some of which, as far as America is concerned, deal with private rights and are, therefore, the law of the land. And then again, "sanction" is a very misleading term. Some twelve thousand accident cases on the New York calendars would indicate that even most elementary municipal law was constantly violated and that the fact that international rules were also violated would not indicate that some sanction did not exist. It is still, alas, only too true that inter arma silent leges; but at times arms themselves become silent, and the great number of arbitrations, especially in recent years, indicate that millions have been paid as pecuniary damages for the violation of these often derided and neglected rules of international law. The position of the United States at the present time is one of peculiar interest and paramount difficulties. International law grew up in the later Middle Ages with the growth of nationalities and the destruction of the idea of unity in the Roman Empire and the Church. The number of arbitrations and the comparative mildness of war in the thirteenth century is somewhat humiliating to contemplate. The rise of nationalities and the break in the unity of Christendom made international law indispensable as some sort of substitute for the unity that came from the conception of the Empire and the Papacy. The conception of neutrality is one of comparatively reccnt date, for in the beginnings of international law a state that refused to help a belligerent was treated as an enemy. The theory of neutrality is altogether simple though its attributes, its rights and its duties have been the subject of endless discussion. Neutrality consists in the neutral state's ab-

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staining from aiding one belligerent as against the other; in other words, keeping out of the war. A state cannot make war without intending to do so, but if it commits acts tantamount to aiding the military operations of one of the enemies as against the other, it will be construed as intending the reasonable results of its acts and may properly be treated as a belligerent. There is nothing morally exalted in the position of neutrality, and the panegyrics that we too often hear poured out upon that happy condition of comparative comfort are not altogether deserved. It has long since been recognized by publicists that if we were to admit any standard of justice in the affairs of nations, the one side or the other in most wars must be right in the main, and that to abstain from participation in that war could not, with decent regard for the opinion of mankind, be based upon indifference to the result, but must be predicated upon the conviction that warlike effort on behalf of the neutral nation would be so fraught with injury and peril to its own interests as to justify it in abstaining from taking part in the conflict. That dry old utilitarian Jeremy Bentham said if the test is whether the good to be gained by taking sides is to be offset by the harm to be done, no nation has yet viewed the matter so dispassionately. The great Grotius himself was rather contemptuous of the evil "studied aloofness" (as Westlake describes it) and believed that a state should observe degrees of neutrality allowing a benevolent neutrality to the one that it considered to have the greater measure of right upon his side, and this doctrine of benevolent neutrality has been occasionally practiced. It is, however, fraught with perils, and one of the belligerents may treat such an attitude as a casus belli. Westlake says: We may sum up by saying that neutrality is not morally justifi-

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able unless intervention in the war is unlikely to promote justice, or could do so only at a ruinous cost to the neutral.1 T h e cardinal distinction to be observed is that between the action of the Government and that of the individual, and between the law which is enforced by the neutral State against its own members and the law which is enforced by the belligerents themselves as against subjects of the neutral State. This somewhat anomalous situation, the result of compromise and a result of history, not of logic, has led to much confusion in popular thought—a confusion not infrequently dangerous to our international relations. Neutrality must not be confounded with impartiality. In the early stages of the war, overconscientious individuals went about softly whispering that as good Americans and hence neutrals, they did not feel justified in expressing any opinion in regard to the merits of the war. T h e y hushed the dictates of their conscience as to the invasion of Belgium and other gross violations of public law and morals with a deprecating phrase about the obligations of neutrality. This attitude is, of course, based upon an entire misconception of neutrality and the confusing of it with individual detachment. T h e Government has a perfect right to proclaim neutrality and to enforce its obligations; it has no right, and never made any attempt, to neutralize men's sentiments, nor can the most ardent neutralizer find any consolation in the neutrality proclamation of our President, for he expressly states in his proclamation of August 4th that: "The free and full expression of sympathies in public and private is not restricted by the laws of the United States." This would be as impossible as to attempt to repress expression of men's religious beliefs or preferences. 1 John Westlake, International versity Press, 1907).

Law, Part II, p. 162 (Cambridge U n i -

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T h e individual is thus left quite free to determine f o r himself what sympathies he will or will not express, and if he is of such a colorless and sluggish nature, or so obtuse in mind as to have no interest in the present conflict, he is at perfect liberty to remain completely indifferent; but he cannot honestly clothe his indifference to the major concerns of civilization with the title of "neutrality." T h e Government of the United States has certain duties under international law. These duties consist, first, in its refraining from doing through its officers or agents any act fairly to be construed as an aid to either of the belligerents; and second, in preventing individuals from doing certain defined acts which the usages of nations, embodied in municipal statutes and treaties and in general consent, have held to be incompatible with the legal status of neutrality. T h e earliest, the broadest and the best statute embodying these neutral duties was our federal law of 1797. This law grew out of the controversies between the Administrations of Washington and Adams with the French representative— "Citizen Genet"—who was intent upon using American ports as a base f o r fitting out ships and organizing expeditions to prey upon English commerce. T h e necessity of an adequate statute to enable the nation to fulfill these obligations, which had gradually come to be associated as inseparable from neutrality, were pressed upon Congress by Washington in his Fifth Annual Address. There is an interesting statement therein of which I give you only a small portion: It rests with the wisdom of Congress to correct, improve, or enforce, this plan of procedure; and it will probably be found expedient to extend the legal code and the jurisdiction of the courts of the United States to many cases which, though dependent on principles already recognized, demand some further provisions. Where individuals shall, within the United States, array them-

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selves in hostility against any of the Powers at war; or enter upon military expeditions or enterprises within the jurisdiction of the United States; or usurp and exercise judicial authority within the United States; or where the penalties on violations of the law of nations may have been indistinctly marked, or are inadequate: these offenses cannot receive too early and too close an attention, and require prompt and decisive remedies. 2 In this connection, it is interesting to note that in this same inaugural W a s h i n g t o n pleads that the h o n o r and d i g n i t y of the nation and its rights as correlative t o its duties must be upheld and a sufficient national armament created: I cannot recommend to your notice measures for the fulfillment of our duties to the rest of the world, without again pressing upon y o u the necessity of placing ourselves in a condition of complete defence, and of exacting from them -the fulfillment of their duties towards us. T h e United States ought not to indulge a persuasion, that, contrary to the order of human events, they will, forever, keep at a distance those painful appeals to arms with which the history of every other nation abounds. There is a rank due to the United States, among nations, which will be withheld, if not absolutely lost, b y the reputation of weakness. If we desire to avoid insult, w e must be able to repel it; if w e desire to secure peace, one of the most powerful instruments of our rising prosperity, it must be known that w e are at all times ready for war. 3 N e u t r a l nations are a l w a y s in a peculiarly difficult position because an observance o f neutrality w i l l sooner o r later bring d o w n u p o n them the condemnation of b o t h belligerents and one or the other o f the belligerents m a y endeavor to f o r c e the hand of the neutral. It w a s due to this that after a n u m ber of years of endeavoring to steer b e t w e e n the pretensions of N a p o l e o n and the claims o f England, the U n i t e d States - American State Papers, Foreign Relations (1833), I, 21. 3 Ibid.

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was finally forced into the W a r of 1812 to vindicate its own views of international law. Had it at all times or prior thereto possessed a sufficiently powerful navy to make it respected in Europe, the Berlin and Milan decrees and the consequent British Orders in Council would not have ground American commerce between them. Both parties to the great struggle then believed that America could not and would not fight and hence that the carefully phrased and admirably lucid arguments of her learned Secretary of State, Mr. Madison, on questions of international law were mere scraps of eloquent paper and could be treated as such. The result of the W a r of 1812 almost justified the inference as the Treaty of Ghent did not settle the questions for which the war was fought. However, with the lapse of time and changed circumstances, the alleged right of impressing seamen on the High Seas was abandoned and the question of the effectiveness of blockade resolved by the Declaration of Paris in 1856, although the United States was not a party thereto. In pursuance of the wishes of President Washington our neutrality statute was finally passed and has stood, with slight modification relating mainly to its methods of enforcement, down to the present time. T h e statute deals mainly with two things: 1. The commissioning of officers and the enlisting of men in our territory for foreign service, and 2. The arming and fitting out of vessels or the organizing of military expeditions within the United States against people at war. It is recognized that a ship itself may be the subject of commerce and that a belligerent may treat it as contraband. T h e underlying principle contained in the neutrality law is that the using of American territory as a military base is contrary to our neutral duties. Difficult questions arise as to

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whether sending to a belligerent a submarine made here in parts would be condemned under the provisions of the act as a violation of neutrality. M y own view is that such an act would not constitute arming or fitting out a vessel and this view was that of the State Department under Mr. Evarts, in 1873, in the case of a torpedo boat. Submarines were also fitted out and sent to Russia during the Russo-Japanese war, apparently without hindrance from the United States authorities. Hydroplanes, the State Department has held, do not fall within the condemnation of this act although apparently they have judged submarines differently. I do not see any basis for this distinction. The greater difficulties of neutrality do not arise, however, from matters connected with the enforcement of our neutrality laws. While the individual acting without the scope of these laws is free from the operation of municipal law, there yet remain the three great categories of contraband, blockade, and unneutral service. In connection with any one of these, questions of great delicacy and difficulty to the neutral do and must arise. The usage of nations, whether logically or not, has long since recognized that a belligerent may punish acts upon the High Seas, acts which are not punishable by municipal statute. While it is the duty of a neutral government to abstain from taking part in the war and not to allow his territory to be used as a base for military operations, yet all commercial transactions of the individual are unaffected by the fact of war in other countries, and the neutral individual may continue to trade as theretofore, subject, however, to the right of the belligerent to prevent such trade if it be in articles of so-called contraband or if it be in violation of a legitimately constituted blockade. The conception of contraband is an old one, going well back into the Middle Ages. Within the category of contraband have been held to fall those articles

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generally which were of military use to the enemy and yet as early as in the time of Grotius was it recognized that there were many articles capable of a double use, that is of an innocent use or of a warlike use, dependent upon whether they were used by the civilian or the military population. Thus gradually grew up the category of conditional contraband goods, that is goods that might be used by a belligerent provided that they were such as could be useful to the enemies' military forces and provided that they were destined for those forces or to a besieged or fortified place. The main thing to be noted in regard to the distinction between the two classes of goods—the distinction constantly varying with the methods of warfare—is that in one case destination to the enemy's country is sufficient and in the other case there must be some proof, by means of destination or otherwise, that the goods are to be used for military purposes. There is no general agreement of the nations and never has been on the category either of absolute or of conditional contraband—in fact Continental nations generally have not recognized the doctrine of conditional contraband, but in case of war have sometimes extended their list of absolute contraband so as to include what the Anglo-American practice terms "conditional contraband." This was notably so in the case of the Franco-Chinese War as to rice, and the Russo-Japanese War as to cotton, etc. The Declaration of London not being law, each belligerent would have a general right to declare as absolute and conditional contraband any articles that he so chose, subject to protest from neutrals that he was including articles generally conceded by nations to be within the third class, that is so-called innocent goods. How far the right to make these classifications is limited has never been determined and will not be unless there is a general agreement of the nations. It

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is, of course, conceivable that a nation might so far push its belligerent rights on the contraband question as to drive injured neutrals into a defensive war, but there seems to be no other limitation upon this category and probably neutrals will usually content themselves with a protest to save their rights which they will pursue at the termination of the war before an Arbitral Tribunal. The famous Alabama case constitutes a precedent, useful for all time, as to the conduct to be pursued by a neutral who has been severely injured in his interests by a violation of settled rules of international law. The doctrine of ultimate destination or continuous voyage is also of interest in connection with contraband as it is in connection with blockade. It is a doctrine growing out of Anglo-American practice and never fully assented to by Continental nations. There has been of late years, and especially in America, a loud cry for what is called immunity of private property on the High Seas. It is argued that under rules of modern warfare private property on land, save in special exigencies, is immune from capture and that the same rules should apply to property on the seas. Strange indeed to see how old ideas recurring under new circumstances and clothed in a slightly different verbiage, create the impression of originality. Something in the nature of a sensation, at least as far as the newspapers are concerned, has been created this week by the proposal of the unofficial spokesman of Germany in this country, Dr. Dernburg. This gentleman claims that he has the approval of leaders in Germany for his suggestion, and that it is one which Germany would accept as a basis of peace. Predicated, therefore, upon the correctness of these assertions it has been given some serious consideration. It is phrased in breezy and popular

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fashion and w o u l d , at first blush, appeal to anyone w h o had not given the matter considerable thought. His main proposition, stated in his o w n words, is as follows:

The great highway on which thoughts and things travel is the High Seas. I can with full authority disclaim any ambition by my country as to world dominion. She is much too modest on the one and too experienced on the other hand not to know that such a state will never be tolerated by the rest. Events have shown that world dominion can only be practiced by dominion of the High Seas; the aim of Germany is to have the seas as well as the narrows kept permanently open for the free use of all nations in times of war as well as in times of peace. The sea is nobody's property and must be free to everybody. The seas are the lungs from which humanity draws a fresh breath of enterprise, and they must not be stopped up. I personally would even go so far as to neutralize all the seas and narrows permanently by a common and effective agreement guaranteed by all the Powers, so that any infringement on that score would meet with the most severe punishment that can be meted out to any transgressor. A n d as a corollary of such freedom of the seas he asks f o r the freedom of cable and mail communication w i t h all countries, whether belligerent or not, and coupled w i t h this, a general open door policy. Analysis will s h o w that this v e r y vague suggestion really resolves itself into the old one of immunity of private prope r t y f r o m capture on the H i g h Seas. P r o b a b l y he intends it to include the abolition of contraband and blockade, but even w i t h this w i d e extension, it is not new. F r e e d o m of the H i g h Seas, in the sense that D r . D e r n b u r g uses it, can mean nothing less than this. It is v e r y easy to show b y reference to history that ( i ) it is based on the false assumption that private p r o p e r t y on land during w a r is respected, ( 2 ) it is an ancient proposal, and ( 3 ) it is impracticable and

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inadvisable from the standpoint of civilization and from the standpoint of the interests of the United States of America. Considering these answers seriatim: i. It is easy to see that the assumption as to private property on land during war is erroneous. It is true that indiscriminate pillage of an enemy's country is no longer permitted. The attempt to prevent pillage is an old one and harks back to Gustavus Adolphus, who placed it upon the sound military ground that pillage delayed the troops and prevented their assiduous prosecution of the war. T o pillage is not only incompatible with the modern view of war, which is to harm the enemy only so far as that harm may lead to the cessation of his resistance. T o destroy an occupied territory is also unwise for it cuts off from the conqueror the sinews for his own war. T o be concrete, let us take the case of the Belgian and see how far, in any real sense, private property is immune in war. In the first place, by the method of requisitions and levy on the enemy, a belligerent supports his army and exacts enormous sums of money. The fantastic taxes imposed upon the unfortunate Belgians completely demonstrates the fact that unorganized plunder has ripened into systematic, methodical, calculated confiscation. In addition, the productive power of property has been destroyed, and while the individual may not have been deprived of his house unless it were necessary for military purposes, his earning capacity has been destroyed and his country, as far as the Belgian is concerned, cut off from communication with the rest of the world; he has been left no opportunity to use his property as he would in pursuance of his own fortunes. That this population must rely on American charity to sustain life indicates to what extent the value of its private property has been destroyed. The object of the belligerent is to stagnate national life completely. Every factory in North France is used, not for

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the benefit of its owners or of the population, but for the benefit of the conquering invader, to sustain his armies and to recruit his treasury. Under these circumstances, it matters little that technically the title to the property may remain in the private owner. The occupied country is utterly prostrated as far as business is concerned, and private property rendered practically useless to the possessor. War is not merely a contest of armies—it is also a contest of exhaustion between people so that the beaten nation may find the situation intolerable and finally cry for peace. Most modern wars have been determined much more by this complete prostration due to the stagnation of national life, caused by the pressure of the enemy upon all property engaged in business activity, than by actual battles. A picture of this situation in France in 1870, and which with greatly aggravated circumstances is perfectly true of Belgium and North France today, may be thus drawn: In occupied towns officials receive no salaries; professional men no fees; the law courts are closed; holders of house property can get no rent; holders of land can neither get rent nor can they cultivate the soil nor sell their crops; the state funds pay no dividends or if they do, all communication between occupied and unoccupied districts being broken off, the dividends cannot be collected; railway dividends are equally intangible and perhaps the line on which the shareholder has especially counted is in the hands of the enemy.

In the occupied districts today in France and Belgium every public activity, every mine, every factory is in the hands of the enemy. T h e business life of that portion of the nation has come to an end or has been diverted to the use of the invader, and the private property of the owner is for the moment a mere simulacrum quite lacking the power of magic necessary to conjure away starvation.

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2. Nor is this situation, although doubtless it has been more cruelly pressed than ever before in modern war, something unknown or unprecedented. One of the mildest of conflicts, inspired with the least national passion or resentment, and a minimum of cruelty or oppression, was the SpanishAmerican War in 1898. The Supreme Court of the United States had, in connection with that war, to consider the question of private property of the enemy. A case arose growing out of the taking, by the officers of the United States Government, of certain boats belonging to Cubans or Spaniards and lying in the harbor of Santiago after its capitulation. These boats were retained and used for months by the Government, and suit was brought by their owner for their use, on the ground that under the accepted canons of international law, the rules of civilized warfare and especially under the instructions issued by the President of the United State for the direction of military authorities, private property was to be respected, and yet the Court held during the war with Spain: Cuba was enemy's country, and all persons residing there pending the war, whether Spanish subjects or Americans, were to be deemed enemies of the United States, and their property enemy's property and subject to seizure, confiscation and destruction. Property in the harbor after the capitulation of Santiago remained enemy property and seizures thereof by the United States were acts of war. 4

And again the Court stated in its unanimous opinion, referring to the case of the Grapeshot:5 But it was not intended to express a limitation upon the undoubted belligerent right to use and confiscate all property of an enemy and to dispose of it at will. 8 * Headnote, Herrera v. United States, 222 U.S. 558 (1912). 3 9 Wall. 129, 132 (1869). 0 222 U.S., at pp. 571-72.

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And finally the Court says: And "booty of war" was distinguished from "a seizure for immediate use of the army." This is a distinction important to observe, and is recognized explicitly or implicitly in all of the cases. . . . It accommodates, when its full range is properly understood, the necessities of the conqueror and the personal and p r o p e r t y rights, if they may be called such, of the

conqueredJ

The theorists, therefore, who glibly talk of the immunity of private property on land and contrast it harshly with its possibilities of seizure at sea, have really a very inadequate conception of what actually takes place in an occupied territory during war or military occupation. They forget that such a place is cut off from communication with the rest of the world, is in a condition of siege or blockade, and that all national industry, business, and prosperity are suppressed or circumscribed not only by direct taxation but also by the consequent suffocation caused by this condition of siege, so that private property for the time being, at least, cannot be availed of. The best that may be said is that some of it may be preserved so that if the occupation becomes permanent, or if the conquered regain their territory, the private owner may then again enjoy the right to dispose freely of his own. This idea of exempting private property at sea is neither original nor disinterested. It has been the cry of every nation with inadequate sea power which has felt the pressure of war from a dominant maritime power. Even greater men than Dr. Dernburg have suggested it, for the idea was put forth by Frederick the Great and Napoleon, both speaking in high-sounding phrases of the rights of private property and the laws of nations, but each naturally and necessarily prompted by the dictates of the interests of his own nation. Frederick the Great, having no sea power, naturally de7

222 U.S., at p. 573. T h e italics arc the writer's.

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sired that the population of his country might be sustained during war by supplies from over the sea, supplies which under existing conditions could be cut off in the event of trouble with a maritime power. Apparently while he was in alliance with Great Britain it did not occur to him to make the suggestion. The suggestion came from the Republic of America and naturally it pleased him. Furthermore, it put the Republic of America in a condition where living up to its agreement made it impossible ever to make war upon him at all. The Treaty between the United States and Prussia of 1785 in Article XXIII provided that: [All] merchant and trading vessels employed in exchanging the products of different places, and thereby rendering the necessaries, conveniences and comforts of human life more easy to be obtained, and, more general, shall be allowed to pass free and unmolested; and neither of the contracting Powers shall grant or issue any commission to any private armed vessels, empowering them to take or destroy such trading vessels or interrupt such commerce.8 This Treaty is referred to in the Treaty of 1825 with Prussia, which is still in force. It will be remembered that, in connection with the claim of the United States to be compensated for the injury done in destroying the American vessel Frye, the German Government admitted its liability as predicated upon this old Treaty of 1825 with Prussia. This Treaty contains most interesting clauses as to the limitation to be imposed upon the right of visitation and search, and provides that goods taken as contraband shall be paid for. Its doctrine is, of course, the reverse of the practice now pursued by the German Empire of destroying by tor8

Treaties, Conventions, International Acts, Protocols and Agreements between the United States of America and Other Powers, 1776-1909 (U.S. G o v e r n m e n t Printing Office, 1 9 1 0 ) , V o l . 2, p. 1484.

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pedoes enemy vessels or vessels carrying contraband, and, incidentally, greatly jeopardizing human life. But the most effective and vigorous apostle of the highsounding doctrines of the freedom of the sea, now so skillfully set forth as embodying German opinion, was Napoleon. T h a t farsighted genius easily discerned that the great obstacle to the complete French hegemony in Continental Europe was the sea power of Great Britain. Possessing as he then did the most powerful military machine known up to that time, he knew of his ability to subdue the other States of the Continent and to create a great empire which would easily dominate the lesser States of Europe. A t one time his customs officers extended from Danzig to the Spanish peninsula, and his system might well have become permanent if the pressure of English sea power had not finally dissolved it b y detaching his Continental allies and driving Russia into revolt against a system which seriously crippled her trade and caused her population to suffer. T h e principal and most interesting document in which Napoleon embodied his ideas was the famous Berlin decree, which now, with immaterial modifications, might well serve as a medium to express the view which Dr. Dernburg tells us he is confident embodies "the sentiments of the leaders in G e r m a n y on this subject," and is meant to represent a basis which would be of the greatest benefit to all nations, to the world at large; France would benefit as much as Germany from such a basis of peace; all nations would be benefited by it." Justice towards neutrals [he contends] compels that international law should be reestablished in a codified form with sufficient guarantees so as to save as far as possible all neutrals 9

The New York Times, April 19, 1915.

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from possible implication in a war in which they did not take part.1® N o w let us see what Napoleon says in his famous decree dated from Berlin, in 1807. The preamble of this decree, of which Napoleon was in a very real sense the author, says: In consideration of the fact that ( 1 ) Great Britain does not recognize International Law as observed by all organized peoples; ( 2 ) that she considers as an enemy each individual of the hostile nation and consequently makes prisoners of war not only the crews of war vessels but even those of merchant vessels and even carriers of commerce and merchants who travel on business; (3) that she extends the right of capture of vessels and materials of commerce and private property, which can legally be applied to those things only which belong to hostile governments.ll

Thus the same ideas emanate from the same place in somewhat analogous situations. Had the French fleet been triumphant at Trafalgar, Napoleon's views regarding the right of visitation and search and freedom of merchandise on the High Seas generally would certainly have taken different form. Nor can the Germany of today complain that it was the English view of international law rather than that which Napoleon, inspired perhaps by the atmosphere of Prussia's capital, adopted that won the day. Had it not been for the power which England exercised through the long years of war by reason of her naval predominance, the Germany of today might well be in the same situation as the Germany of Napoleon's time. In any event, an observance of the private property doctrine now contended for in the name of humanity would have prolonged the war indefinitely, and Germany would have re10 The N e w York Sun, April 18, 1915. 11 Napoléon, Recueil par Ordre Chronologique de ses Lettres, Proclamations, etc., ed. M. Kermoysan (Firmin Didot Frères, Fils et Cie, 1856), II, 90. Translation and italics by Mr. Coudert. [Ed. note]

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mained under French hegemony, if not permanently, at least f o r a long time. Admiral Mahan tells us that "Prussia magnanimously intimated that, due to the sublime principles of Frederick the Great, it was her intention, whatever France did, to treat as sacred all innocent private property at Sea." Again in 1807 and in 1866 Austria, menaced b y a superior Italian fleet, was for the doctrine. And again and to us more important and more significant was the conduct of the North in the Civil W a r . Had the neutral sea doctrine prevailed, we should have been unable to blockade 2,500 miles of Southern coast and to cut off the Confederacy from the rest of the world, thus stagnating her business, starving her population, and depriving her armies of munitions. It was this long grueling process that in the end really decided the conflict and strangled the Confederacy. Had the North put into practice the doctrine of private property so glibly expounded by Americans in the name of humanity, the Union would in all probability have been disrupted, and in any event the war would have extended over a far longer period and entailed an even much greater amount of bloodshed. It is impossible that wars should be decided without suffering on the part of the population as well as the soldiers actually engaged therein. T h e immunity of private property on the High Seas, or as it is now fashionable to term it, "the neutralization of the open ocean," would simply give to the powers maintaining great armies a preponderant position. T h e annexation of Belgium as against an unready Russia or an unprepared France on the part of a Germany which had f o r fifty years directed all its attention to military development would have been a dangerous possibility, and the Empire which Napoleon dreamed of and only momentarily and partially realized might well have been accomplished by the German military machine, had the seas been neutralized in the name of humanity in order that the

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German armies might destroy independent nations in the name of Kultur. 3. The proposition is unworkable. W h o would guarantee the freedom of the sea? Who would prevent German submarines from blowing up passenger vessels or freight carriers, neutral or enemy? What sanction would this great humanitarian proposition have? How long indeed would it be advocated by Germany should her fleet finally destroy that of Great Britain. The doctrine is one dictated by the particular situation in which the successor of Frederick the Great finds himself. When naval disarmament or limitation was proposed to him, he spurned it on the ground that armament was the measure of the vital power of a nation. German jurists have consistently and persistently repudiated the private property doctrine. Germany's naval armament having been neutralized by superior armament, she now has recourse to fine phrases about the freedom of the seas, phrases which have been used by other nations similarly situated and equally disregarded by great nations having sea power and struggling for their existence as in the case of England with Napoleon and the Northern States with the Southern Confederacy. The doctrine is unworkable and will remain unworkable until some great international agreement so minimizes the chances of war that great nations need no longer think of their safety. When the United States can afford to dispense with the navy, it may consider the question of immunizing all property on the high seas. She is self-sufficient and has not a large and, therefore, vulnerable mercantile marine. Should she engage in war with a power needing to receive supplies from the High Seas, her first business would be to cut those supplies and to bring a pressure of economic forces to bear upon an enemy which she could not directly conquer. The doctrine is insidious and from the American standpoint false and dangerous, from a general standpoint utterly unworkable.

3

Letter to Frank L. Polk on the European Situation FROM MR. COUDERT'S PAPERS

September 28, 1915 M Y DEAR FRANK:

Please put this long letter in your pocket and read it when you have a few moments leisure at home. It is a great gratification to me to think that you are the adviser of the State Department, not only because of one's natural pleasure that an old-time friend should have a great opportunity but even more because I appreciate that with your sound, good sense and straight disinterested thinking you can do much for our international relations, now threatened by every manner of complexity and needing the maximum of ability. Since our little talk of the other day it occurred to me that possibly it might be of some use to you to have my impressions after having talked with the men who are directing the policy of the British Empire. None realizes better than you the importance to the United States of having good relations with the Allies and of not being in a position of complete isolation at the end of the war. I realize that certain matters which have caused irritation and exasperation have arisen and I feel that a full understanding of the English point of view may greatly aid in dissipating these misunderstandings which should they become the playthings of ignorant or interested men might lead to disastrous consequences.

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I had the pleasure of talking very fully with Sir Edward Grey, Mr. Arthur Balfour, the present First Lord of the Admiralty, Austen Chamberlain, Secretary of India and one of the two or three strongest men of the Conservative party, Sir Edward Carson, present Attorney General, Lord Robert Cecil, under-Secretary for Foreign Affairs, occupying in the Conservative party a position roughly corresponding to that of Sir Edward Grey in the Liberal party, Sir George Barnes of the Board of Trade, charged with Anglo-American matters, and Mr. C. B. J. Hurst, legal adviser of the Foreign Office, and a number of less important but influential individuals. With all these I discussed fully Anglo-American relations. The main object of my visit was to bring about a settlement of the cotton question. Before leaving I had a talk with our friend Lansing who thought that this was (at that time, July 22nd) the most troublesome question between Great Britain and the United States. In addition to these gentlemen I also had the pleasure of seeing in Paris Mr. Delcasse, Minister of Foreign Affairs, Mr. Gout, Director of Foreign Affairs, Mr. Fromageot, legal adviser to the Foreign Office and others with whom I discussed fully the same questions. You spoke the other day of France and her part in the war as compared with that of Great Britain and I am well aware that there exists in this country a sympathy for France and the French not accorded to our British friends. This point I endeavored to explain and emphasized to the British leaders with whom I talked. I was, however, very much impressed with the absolute solidarity of the Allies, their complete cooperation in all external relations and the sympathetic support given by the French Government to all those British measures looking to the commercial isolation of Germany. The two Foreign Offices and their Legal Departments are working in complete accord as to these matters. In fact, dur-

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ing my stay in London I was present at a conference between the legal representatives of the French Foreign Office, composed of Mr. Gout, Mr. Fromageot and Vice-Admiral Moreau with Lord Robert Cecil, Mr. Hurst, Sir Eyre Crow and others. This conference discussed very fully the matter of contrabanding cotton, among other things, and was evidently animated by a spirit of complete concord. I wish to emphasize this because the French feel that any difficulty with Great Britain must naturally react upon them and that the safety of their national life is inextricably intertwined with British success. In discussing with all these gentlemen, and especially with the French, one is impressed with the fact that the problem for them is no mere abstract question of international law, nor even one of commercial advantage, but as Mr. Fromageot put it simply and solely "to be or not to be." My first full discussion was with Sir Edward Grey who inquired closely in regard to conditions in America. He is one of the most sympathetic, self-effacing gentlemen that it would be possible to find and he expressed himself to me in most frank and confidential fashion. He realizes that the necessity of cutting off the commercial intercourse of the enemy has caused some irritation in this country. This he greatly deplores, and he expressed to me his desire to do everything that he could to assuage American feeling and to minimize interference with American commerce. He said, "Of course, you can understand that with the command of the seas possessed by the Allies, it would seem impossible to our people to allow Germany to carry on her ordinary commerce as though nothing had happened while our vessels were being indiscriminately blown up." The complete commercial isolation of Germany had not been attempted until that country by her submarine warfare had put herself outside of the Declaration of Paris and of all the

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canons of international law. Both naval and military men assured me that it had never been believed nor contemplated that submarines were to be used to destroy merchantmen and that such a phase of war created a wholly new and unexpected situation. In regard to the cotton situation which I discussed with all the gentlemen above named, both French and English, it was finally decided to contraband the cotton and then in order to prevent the suffering which was anticipated throughout the cotton states, Great Britain was willing to do something in the way of sustaining the market by considerable purchases of cotton for her own account. This seemed to me a very substantial and much to be desired concession, especially in view of the fact that under our own precedents the Allies seemed to be entirely justified in putting cotton on the contraband list. In fact I was interested to find that there was a most bitter feeling throughout all parties against the British Government for their failure to contraband cotton. The knowledge had gone abroad that it was the basis of modern high explosives and that during the first year of the war Germany had received a million and a half bales to two million bales, all of which (as I learned from Mr. Rose of the State Department) had been taken by the German Government for ammunition purposes. The Englishman on the street could not understand why his Government had allowed this to be done and the feeling was so bitter that a great meeting to protest against this non-action of the Government was called and was addressed by Sir Ramsay MacDonald, the great English chemist, among others. If the Government for a year resisted this pressure, and it has only now finally yielded and has decided to exercise an undoubted belligerent right, it was, I am convinced, due to their desire to in no wise offend or distress American opinion and industry. The policy might well be criticized as somewhat weak or vacillating,

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but we Americans can hardly object to the motive which induced the British Government in so acting. On all sides I was met in the discussion of this cotton question by the great desire, both of the Foreign Office and the Board of Trade, to minimize injury to the cotton interests. It was, of course, apparent to everyone that to allow cotton to go to Germany was a suicidal policy, because it is now generally known that it is an essential ingredient in ammunition and that the German supply was limited. If this cotton situation has been adjusted, as I think it has, it was wholly due to the desire of British statesmen to please the United States. The French while joining with them in this and acquiescing in this British desire, with their somewhat more logical point of view, did not quite see why Great Britain should in any way obligate herself to pay a large sum of money to gratify the planters, but they, nevertheless, were willing to follow the lead and will undoubtedly do their share. I found also some surprise at the various American protests made as regards the holding up of ships, delays, etc., many of which, if not all, seemed to be quite explicable. Of course a number of these cases, as must be in any great government, do not come to the chiefs and are managed by subordinates. These subordinates naturally do not always have the necessary tact and I am inclined to believe that much of the friction that has developed has been caused in such fashion and altogether contrary to the wishes of Sir Edward Grey, Mr. Balfour and the others of the Cabinet. While the British especially refrain from putting it forward, the view is very widespread among all classes in England, and especially in France, that the United States is vitally interested in the Allies' success; that an Allied defeat would place them in a very serious situation and that they could no longer rely, as they have for generations past, upon the pro-

L E T T E R TO FRANK L . POLK

tecrion of international law. England, herself relying upon the protection of Treaties, had found herself militarily almost disarmed and she felt that the United States should realize that in the event of German success it would be in a similar position. The French especially feel strongly about this. They are naturally led to overestimate our sympathy for them because of the great number of individuals who have given of their money and of their time to relieve suffering in France. This has made a very wide and strong impression and has gone straight to the hearts of this sore stricken nation. The expressions of gratitude that I heard about what the Americans had done for the women and children, as well as for the wounded, were really pathetic in their simplicity and sincerity. They find it, therefore, difficult to understand why we should seem to be baiting the Allies over questions of meat cargoes, detained ships, etc. Of course I did my best to put before them the American view. I think it would be quite wrong to suppose that either France or England is anxious that we should enter the war. There are various reasons why they feel that this might be detrimental to them. In the first place, the French and especially the Belgians realize that this would cut off the activities of our charitable organizations which have kept Belgium alive and in very considerable degree the population of North France likewise. Again, they greatly fear that this might interfere with the export of needed munitions, especially to Russia, and thus seriously handicap allied activities. Third, they further appreciate that our people are profoundly pacific, absolutely averse to Foreign War and totally unprepared for any aggressive measures which could be of any aid to the allied cause. What they did find it difficult to understand and what I confess required considerable explanation, especially after the sinking of the Arabic, was that we should have spoken so strongly and yet taken no

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action whatever. By action they did not mean in any wise a declaration of war but merely a rupture of diplomatic intercourse on the ground that Germany had put herself without the family of nations and that we should have by some positive act expressed our utter disapproval and abhorrence. They further felt that this should be something more than a mere sentimental outburst. The moral effect upon faltering neutrals, such as some of the Balkan States, would have been very considerable indeed. In addition German credits might have been cut off in this country and the allied measures for preventing German commerce not interfered with by us. I think that the directors in both Foreign Offices were of opinion, although they expressed it with reserve and great confidence to me as an individual, that such action on our part would very materially shorten the war. It would, they felt, have placed German victory out of the question and would have put us in a position of prestige and dignity which would have allowed us in time to probably have great weight in the situation. This weight I am inclined to believe, though I state it with diffidence, we do not possess at the present moment for to the foreign eye we seem as a Government to be taking a purely monetary or commercial view of the situation, and I cannot but believe that, however kindly the Government people may feel toward us and however much they may appreciate our difficulties, the mass in France and England are quite unable to understand the situation. They do not see, for instance, why the great leading neutral made no sign of protest when Belgium was invaded, and why our first and most vigorous protest was made because of the detention of a certain very limited number of ships. They further do not understand how we can suggest to them peace at a time when peace must mean the triumph of the power that had destroyed Belgium, killed our citizens on the high

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seas and waged a war, the ruthlessness of which the world had not yet dreamed of. The gentleman, for instance, who occupies in France the position that corresponds to yours told me that his house had been burned and everything that he had destroyed and that he had with great difficulty managed to get his title deeds and interesting ancestral heritage away before the total destruction. It is, of course, difficult for these gentlemen to view the matter from a wholly non-sentimental standpoint and yet they are amazingly calm and unalterably determined to make every sacrifice. As Mr. Delcasse said to me when I spoke of the extraordinary spectacle of religious patriotism shown in the mobilization, as I witnessed it in North France: "Oui, Monsieur, c'est vrai! Ce peuple voulait vivre." Discussions of peace at the present time are, therefore, wholly premature, for France cannot consent to any peace which after such an agony would not contain elements of permanence. As one of them put it to me very calmly: "After all, Sir, we owe that to our dead." I found in England a resolution to see the thing through and while they have been very slow getting under way, as must be every non-military people with democratic government, they have now effected the most admirable organization and I was much impressed with what I saw, not only in England but on the Channel, and with what I heard from French as well as from English officers. They have not yet sufficient munitions but they are very rapidly obtaining them. Their main difficulty is to get officers with the technical knowledge, especially in the artillery, but in this they have received considerable assistance from the Belgians who had a number of excellent artillery officers, and their own are developing very rapidly as the professional and business classes have gone into the army. A short time with the sol-

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diers would show you that it is just as much recruited from all classes as is the French army. I should like to refer to some of the pending difficulties which I presume, in the near future, we may be able to discuss together. First, the Orders in Council: These have, of course, been discussed fully from every standpoint, but after having lived with them nearly a year I feel that the only serious objection which may be urged to them from the international standpoint is that trade may still go on between the Scandinavian ports and the Baltic German ports. It is thus alleged that the blockade is not uniform and operates unjustly against America. While this may be so in form and from a technical standpoint, I incline to believe that the objection is not substantial and that the blockade is well within the spirit of blockade rules. One must remember, first, that geography renders the Scandinavian waters peculiar in that they are semi-enclosed and territorial by reason of the narrowness of the entrances thereto and the shallowness of the intervening waters. It is true also that water commerce with Scandinavia is practically in goods that have come from America and that, therefore, to insist that goods destined to the North Sea for Sweden should be allowed to go to Germany because there is no effective blockade of the Baltic ports would really be putting mere technicality above substance for these goods simply go through the Scandinavian countries for the purpose of reaching Germany. As Mr. Balfour put it: the alleged discrimination inflicted by the British blockade "does no doubt leave the German trade with Sweden and Norway in the same position as the German trade with Holland and Denmark; and in a different position from the German trade with America or Africa. But the 'discrimination' (if it is to be so described) is not the result of a deliberate policy, but of geographical accident. It is not due to any desire to favor

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Scandinavian exporters as compared with American exporters; and in practice it will have no such effect. They are not, nor to any important extent can they be, competing rivals in the German markets." But above and beyond this, there is a distinction between technical international law, which as you well know is a very elastic substance, and international morality. As Mr. Fromageot said to me in regard to these questions: France will never violate the rules of honor or of humanity, and every question that they can have with us will be a justiciable one, proper for arbitration and reducible to dollars. The examination which you have doubtless made of our Civil War cases must have convinced you that we did not hesitate when the North thought it necessary to crush the South to extend settled rules of international law, but in so doing we violated no principles of humanity and remained within the spirit of blockade. T o claim that goods with an ultimate German destination should be allowed to go through Holland would be an insistance that the Allies surrender their sea power, for Rotterdam, although a neutral port, is for Germany a natural port and has been since the Congress of Vienna ( 1 8 1 5 ) and the Convention of the Rhine which followed it. Our technical objections would thus go to the root and if engrafted on international law would in case we were engaged in maritime warfare put us in a position where we should either have to disavow our own actions or place ourselves at a great disadvantage. It is also evident that in extending as it has done the list of conditional contraband, Great Britain may properly prevent goods from going to Germany about as effectively as by a blockade. This, however, would still leave the question of exports. It has been thought here that that was not of great importance and that the English inhibition on exports, while galling to neutrals, was of little military value to them. I went into this matter

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with some care, not only in the Foreign Office, but also in the War Ministry in France where the question has been very carefully considered by experts. There is a concensus of opinion among these gentlemen in both countries that the prohibition of exports will, by destroying the value of Germany's credits abroad and paralyzing its industry, materially contribute to the shortening of the war. My own belief is that the economic pressure has already begun to tell and that within a year it will have become wellnigh irresistible. In view of the fact that we are about to strengthen and develop our navy is it wise for us to be over-technical and exacting in these matters, especially as we have general arbitration treaties which will allow our nationals to recover the damages that they may suffer? I cannot feel that our Government or our nationals will profit by a constant nagging at the Allies for taking measures which we would doubtless take were we placed as they are and which are certainly not contrary to precedents laid down by our own Supreme Court, notably in the famous Springbok 1 (so protested against by continental jurists but acquiesced in by Great Britain) and contrary to none of those sacred principles of humanity exercised by the President. Second, the meat question: The packers have evidently made a great outcry. I have in my possession the record, quite an immense affair, of the fourteen days' trial in the Prize Court of the packers' case. May I say that Sir Samuel Evans presided over that Court with a dignity and fairness and a courtesy which I do not think is excelled even by our Supreme Court of the United States and that the packers were represented by the most eminent counsel in Great Britain. T w o things very clearly appeared. First, that the packers attempted to conceal the destination of the goods 1

The Springbok, j Wall, i (U.S. 1866).

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and to create evidence tending to sustain their allegations that they were destined for Scandinavia. Second, that this series of subterfuges was detected and exposed and that counsel were forced to admit that the goods were destined for German consumption. They were then driven to rest their case upon the doctrine of conditional contraband and the answer was made that in view of the militarization of Germany, the fortified places to which the goods were ultimately destined, the fact that the population was rationed by the Government and the supply of necessaries taken over, the distinction between military and civilian destination no longer existed. This is a matter about which lawyers might well quarrel but about which the most eminent of them might honestly and fairly differ. I incline to believe that it is a perfectly fair distinction and that the decision of the Prize Court to that effect would meet with wide, if not general, approval among the international lawyers. In any event an appeal may be taken to arbitration. There also appears to be some indication in the record that the German Government were back of these exportations and if this were proved there could be no question whatever as to the condemnability of the cargoes. There have been long discussions over settlement and to the great chagrin of Sir Edward Carson, the Attorney General who was negotiating the matter in London, this settlement could not be effected. I may have occasion to explain to you at some other time why this was so, but I think on looking into it fully you will find that it was not creditable to the representatives of the packers and that the British Government went to the limit of consideration in endeavoring to bring about such settlement. And then, again, there is not the slightest doubt that these gentlemen were making and perhaps still are making every possible effort and employing every possible subterfuge to reach the

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German market. D o you really think that we should aid them in this attempt, especially as they have been endeavoring to do it under the guise of supplying neutrals? Third, regarding the Textile Alliance: I shall probably write to you a letter on behalf of that organization, explaining their position, but in a word I believe it to be exactly the position which our Government has sanctioned in their arrangement with Russia. England had placed an embargo on her wool. This embargo she was willing in part to lift by allowing wool to go to certain dealers licensed by her. This is a perfectly legitimate and proper thing for any Government to do and was done by our Government during the Civil War. These dealers give assurance that they will not allow the wool to go to the enemy and it is upon this condition that they receive it. T h e absurd newspaper claim that Great Britain is throttling American trade thus has no foundation. Great Britain could obviate all danger to herself by maintaining the strict embargo on wool. This would reflect most disadvantageously on American industry, but in order to satisfy American industry this arrangement has been entered into. I am sure that when you examine it you will find nothing in it for criticism. And now, again, pardon me for this long letter and set it down to my desire, as I told Mr. Lansing, to be a buffer between the State Department and the Allied Governments and to absorb as much of the shock as possible. I am happy in the thought that we can cooperate together and by a full exchange of views do much to avoid misunderstanding and foolish ex-party clamor and so be of some use to the larger interests of Uncle Sam so inextricably interwoven with some of the phases of this conflict. Yours very sincerely, Frederic R. Coudert

4 The Role of America in the International Situation ADDRESS BEFORE T H E DECEMBER

ST. NICHOLAS 6,

CLUB

1915

I

is EVIDENT that the position of the United States today among the nations is by no means so enviable as superficial appearances indicate. The Dean of our Bar, that learned and sage counsellor, Mr. Choate, is reported to have said that " W e are the most hated of nations." Everywhere there is uneasiness and disquiet. On all sides we are discussing military preparedness. The truth is the American people are feeling somewhat uncomfortable. Something has gone wrong. Money contributions to Belgium, aid to the refugees from North France and from Poland, Red Cross benefactions, all seem unable to assuage what, for lack of a better term, I am tempted to call the "American Conscience." T

It would be interesting to analyze the causes of all this. T o me they are not far to seek. A nation, like an individual, must have a certain pride in its own dignity if it is to count for much in the world. The role of the United States as a neutral onlooker in the greatest conflict that the world has ever seen is comfortable indeed from the standpoint of the pocket, but does not seem to have brought a commensurate satisfaction to the American mind. The real truth is that Mr. Choate, that past master of words, is wrong for once. The United States is not hated as strongly or as widely as he believes, or in fact at all, but I have no hesitancy in saying that it is rapidly coming to be

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despised. Oderint dum metuant, said Horace. It is possible to submit to hate. It is difficult not to be exceedingly restive under contempt. Perhaps, if we felt that this latter sentiment were wholly undeserved, we might bear with it as a by-product of that nervous irritability, natural in peoples who are struggling for existence, and view it as a passing phase, the price which all neutrals must pay. I do not believe that we can rightly solace ourselves with this thought. T h e real truth is that the political and legal attitude of the American Government has been at variance with the sentiments of a great part, if not a large majority, of the American people. While the Government has been neutral in law, the people have, in the President's phrase, "assessed the merits" and have refused to be "neutral in thought." T h e man in the street instinctively knew that the destruction of Belgium was not only a wrong, but something that unless redressed must make the world a crueler place to live in than it had ever been before. He instinctively knew that success in that attempt would have consecrated the principle of might and desecrated the principle of right. Hence his conscience was not wholly satisfied when told that the policy of this nation required abstention from intervention in European quarrels and that the broils of foreigners were not our concern. I am inclined to think that we are confused by considering the struggle as merely European and affecting solely the interests of that Continent. T h e policy that Washington laid down was indeed a wise one then and for a long time essential to the well-being of the Nation. But a national policy cannot be permanent in this ever changing world and what was true of a Nation of four million people, at a time when it took a month or more to get to Europe, has little applica-

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tion to our country today. N o great movement takes place in Europe, or indeed in Asia, which does not affect us deeply. The concerns of China itself can no longer be alien to the United States. Yet even were we content to stick to the letter of the Farewell Address, we are not justified in considering the present struggle as merely European. It transcends the limits of Europe and has extended to the whole civilized world. Our neighbors in Canada are at war; Japan has taken a prominent part in the struggle and to the remote confines of Asia and Africa has gone the din of arms. If no belligerent has set foot on this continent it is because the British fleet has been able to retain mastery of the sea so that British and French possessions in America have been immune from attack. It has been truly characterized as a "world war." In such a struggle the role of the onlooker is not a pleasant one. It may be necessary, it may be prudent; it can never be glorious and is not always honorable. The United States of America are practically defenseless on land, insufficiently strong by sea. Three thousand miles of deep blue water have for one hundred years induced us to believe that we were secure from invasion. At present, however, modern inventions and recent events have demonstrated that we are indeed vulnerable and the Government and the public alike call for adequate preparedness against the possibility of an attack invited by our riches, our pacifism, and our defenselessness. Today we are protected by nothing save international law and a very inadequate navy. International law! That sad and shattered fabric, to which we were appealing a few years ago for the arbitrament of all world disputes; international law, the custom of the Nations, embodied in traditional usage and treaty right, reposes upon no sure foundation.

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Nothing could have been more solemn or binding than the treaty engagements to respect the neutrality of Belgium. T h e y constituted cornerstones in the public law of Europe. N o conventions could have been hailed with more enthusiasm as making certain the usages of war than were those so ceremoniously promulgated at The Hague. And yet the whole structure seems to have toppled over because one belligerent felt that "might made right" and that he had the "might." Thus international law is indeed a weak prop to lean upon, and if the United States wishes to maintain even its recognized, admitted, and elementary rights, it must be prepared to enforce them. It cannot, like Belgium, call upon treaty-bound allies to fight to protect it. America has no friend or ally, save America. Many historians have attributed to many divergent causes the fall of the Roman Empire after centuries of power and strong government. Yet underlying all these causes was the fact that the citizen did not believe himself called upon to fight to maintain his heritage and was not too proud to pay others to do it for him. When the overpaid barbarian soldiers struck, the Empire was necessarily doomed. The United States, however, has never been content to limit its rights even to those recognized by international law; it invokes as the keystone of its foreign policy the famous Monroe Doctrine, which upon various occasions it has not hesitated to maintain by threats of force. As recently as 1905, the Emperor of Germany was, by the then President, Theodore Roosevelt, informed that if he did not raise his blockade of Venezuela and consent to arbitration, Admiral Dewey would sail for Venezuela at once. Prompt acquiescence in the President's suggestion indicated that its cogency rested upon more than a merely argumentative basis. Some

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years ago, the same German Government was said to be negotiating for the purchase of St. Thomas, and the purchase was believed to have been discouraged by the State Department. In any event, it is certain that at that time no purchase by a European power of any Island in the Caribbean Sea would have been tolerated. Again, during the recent difficulties in Mexico, our Government was constantly asked to protect the subjects of European powers upon the tacit assumption that we would not allow the Europeans to do it for themselves. Thus in a world of arms and of armed Nations, the United States finds itself with an inadequate navy and an almost nonexisting army, clamoring for its rights at international law and assuming the validity of its claim to the benefits of the Monroe Doctrine. A neutral has rights undoubtedly, but a neutral also has duties. A neutral does not dignify himself by constant whining about his rights, without demonstrating his determination and unflinching resolution to carry out his duties. I can quite understand that by reason of our neutrality we should not be liked by any of the warring powers in Europe. A nation which, while insisting upon its rights, unhesitatingly performs its duties may be hated but cannot be despised. A nation which, while howling piteously over its disregarded rights, makes no effort to perform corresponding duties is inevitably despised. It is useless to disguise any longer the fact that general public opinion in Europe believes that we have, after reiterated protests, supplications, and menaces, allowed our citizens to be ruthlessly destroyed upon the High Seas, in defiance of elementary law and fundamental morality. While this extraordinary condition continues, we can expect neither to be admired, liked, nor respected.

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It is a serious situation for a nation to find itself in. If it continues we will be in about as enviable a position as China and about as tempting a prey for predatory nations. It will be said, however, that by confining ourselves to emphatic, sonorous phrase, unaccompanied by action, we saved our rights by nonacquiescence, and our people from possible suffering and bloodshed. The truth is, however, that our citizens continue to be killed, our factories to be blown up, our laws to be flouted. Thus our reliance upon dialectic has failed and, sooner or later, we shall have to pay the debt, one hundred fold if we do not perform our duty now. Let us eliminate questions of sentiment. Let us assume that in order to avoid the possibilities of war, we should submit to any humiliation, that we should go to any length, that we should yield to any amount of bullying; let us assume all this, and yet consider whether from the standpoint of statesmanship, we have been justified in nonaction from the time that Belgium was invaded down to the present moment? Viewing the matter as should a serene calm-minded and farseeing statesman, interested only in the power, prosperity, and permanency of America in the family of nations, how would our situation appear? By our inaction we are left without a friend among the peoples of Europe. By failing to protest or in some w a y to signify formal disapproval of the assault upon the foundation of international law involved in the sack of Belgium, we have aided in creating the belief that none have rights save those who have force. By allowing our citizens to be sent to destruction upon the High Seas, we have created the impression that America is willing to talk but is wholly unwilling or unable to act against the strong. W e have thus alienated the sympathies of the world, while at the same time risking the forfeiture of that respect which a government commands by enforcing its rights and discharging its duties.

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Europe is not under any disillusionment. T h e y do not believe that our desistments have been due to disinterested desire for world good, but rather are they convinced that our inaction is the result of long-continued prosperity of a material success and soft self-complacency unaccompanied by preparation, moral or physical, to sustain the role which our traditions demand and our history indicates. Because the opinion of the mass of our people strongly condemned Teutonic aggression and the overturnings of international law, and our government very properly refused to interfere with the export of munitions, rendered easy by allied control of the sea, we have incurred the deep detestation of the Teutonic powers. America will thus at the end of the war find herself isolated to meet certain peril. Probable continuance of disorder in Mexico, the periodic recrudescence of disorder in portions of South America, our manifest weakness and the consequent, evident temptation, long existent, to violate the Monroe Doctrine, will bring us face to face with almost certain danger. What could we say to a victorious Germany desirous of purchasing an island in the Caribbean or seeking a base within the vicinity of the Panama Canal? Could we lightly continue to rely on the Monroe Doctrine, if we were as unprepared as we are today to defend it? Could we treat such action by Germany as we have treated French interference in Mexico after the Civil W a r when we were, despite the devastating conflict, yet the strongest military power in the world? Will we be able to continue to close our door in the face of the Oriental? Will we be able to tell the nations of Europe that disorder may go on unchecked in Mexico indefinitely because, forsooth, while the United States has the right to prevent them from interfering to protect the lives and property of their own citizens, yet it is not our will to

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undertake the task of restoring order and rendering civilization permanent in the lands over which we insist upon exercising a merely negative jurisdiction? When in defiance of our monition of "strict accountability" the Lusitania was blown up, should we not have held the Nation perpetrating the outrage to such "strict accountability" by sending away her diplomats, treating her as an outlaw who had forfeited the rights incident to membership in the family of nations, and lending the benevolent neutrality of the United States to the Allies? Would not the Statesman have realized that in the end this would have saved us from devastating wars in the future, menacing our fundamental rights and policies? Would the Statesman not have believed that this course had many advantages in that: 1. Such an attitude on the part of America would have influenced the then wavering neutrals in the Balkans and very probably have determined their taking a different course because of the obvious impossibility of ultimate German victory with the world in arms against the "necessity that knows no law." 2. The effect upon the Allied powers of such a course, while merely incidental to the protection of our own rights and called forth as the logical outcome of the attitude adopted by our Government on the ioth of February toward the so-called submarine blockade, would undoubtedly have been to shorten greatly the war by practically guaranteeing their ultimate success. 3. By such timely intervention, peace would have been restored far earlier than it otherwise could have been, and thus we should have obtained the prestige and the dignity which must necessarily flow from such beneficent action. A probable Teutonic and a possible Yellow "peril" would have been largely dissipated.

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4. Finally the wise Statesman would reflect that even in case such mere diplomatic rupture with all its important consequences should be followed by war, America was in a position to reap the maximum benefit with the minimum of expenditure either of men or of money. Perhaps some ships to aid the Allied fleet and a free rein to those volunteers who desired to fight for civilization and for humanity would, in addition to loans and increment of armament manufacture, have been sufficient. T h e war terminated, America would have found herself relieved from danger on the part of the power to whom international guarantees are indifferent when not backed by might, and instead of being despised among the family of nations, would have been strong in the respect inspired by her championing of her duties when it had ceased to be useful or decent to talk about her rights. Better this minim of risk to sustain vital interest and national honor than the grave danger of later facing alone a great military power in a necessarily long and doubtful struggle. In 1812 we fought an inconclusive war. If we saved our honor we did not vindicate our rights. A f t e r hesitating for five years and failing to prepare to champion our neutral rights we finally entered upon the conflict too late seriously to injure our antagonist, not soon enough to save his mighty adversary. It seems to me that had such a course been pursued even though it had eventuated in some sacrifice, the future of the country would now be far safer, its policies more secure, and the foundation laid for lasting peace. Should not these considerations have weight with the Statesmen who direct our destinies? Is it wise for a Nation to live along from day to day, satisfied to yield whenever possibility of holding out may perhaps entail danger? In performing our full duty at the present time, we should

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incur a minimum of present risk and reap a maximum of future benefit. Responsible leadership in a democracy involves trusteeship for those to come as well as security and comfort for those that are. Incidentally, we should really be championing humanity and performing a great service. Sentimental or moral considerations go hand-in-hand with the dictates of enlightened and far-seeing self interest.

5 Statement on the Resignation of Secretary of War Garrison February 11,

1916

FROM M R . COUDERT'S PAPERS

R. GARRISON is a man of great strength and ability. He understands the military needs of this country thoroughly and his resignation is deplorable. It would indicate that the leaders in the present Congress do not sufficiently appreciate the needs of the hour to be willing to pass adequate measures. Any attempt to use the National Guard, which by the Constitution is necessarily controlled by the States, would merely delude the people into believing that something had been done for national defense and leave the situation in worse plight than at the present time. The difference is fundamental and cannot be bridged or compromised. Garrison's attitude is absolutely sound. I think it to be regretted that the President did not take a precisely similar view. Unless a sufficient number of Republicans and Democrats can combine on some method of creating a really national force, the outlook for preparedness at the present time is indeed discouraging. Politics, ignorance, and the pork barrel are apparently in the saddle.

6

How Can the United States Best Maintain the Rights of Her Citizens? ADDRESS B E F O R E T H E A M E R I C A N OF P O L I T I C A L A N D SOCIAL APRIL

T

29,

ACADEMY

SCIENCE

1916

alone among great nations, is as yet at peace, although at its very doors its citizens are ruthlessly killed on land as they have been for some time past upon the High Seas. The American public may not remain indefinitely satisfied with acquiescence tinctured with diplomatic and juristic protest, and a time may come when American rights will have to be asserted. American common consciousness and the sentiment of national solidarity may for the moment be dormant but are surely not dead. The dignity of a nation may fairly be judged by the treatment accorded its nationals abroad. Americans abroad must be content, because of the defenseless condition of their land, to heed governmental invitations to "scuttle" or to refrain from going to foreign lands at the slightest warning from a haughty Ambassador or a Mexican guerrilla chieftain kind enough to deprecate the killing of Americans when it may be avoided without inconvenience to his projects. T h e appeal to Washington, unlike the appeal to Rome of ancient days, no longer stays the barbarian hand. An American citizen may indeed claim the protection of international law but his life of late, alas, has scarcely enjoyed the consideration accorded to that of the turkey-buzzard in the HE UNITED STATES,

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land to the south of us, nor to the gentle gull on the High Seas. Even American territory is no longer safe from the banditti of the border and the scheming fomenter of domestic disturbance designed to serve foreign ends. Well may Americans appeal to the laws of nations; well also may the answer be, like Hotspur's to the boast that one could appeal to "spirits from the vasty deep": Why, so can I, or so can any man; But will they come when you do call for them? Is our situation today a product of a military weakness silently felt by the nation even though cloaked in sonorous humanitarian phrase? It is evident that the situation is rapidly becoming dangerous and that we are confronted with imminent peril of drifting into conflict, unarmed and unprepared. Nay, our very defenseless condition invites a conflict which any armament adequate to our latent power would render quite impossible. Our Chief Executive has spoken of America as championing the rights of neutrals, but if we are to undertake this in the future we must at least have potential force behind us, otherwise our professions become scarce respectable and are likely to prove dangerous. Unarmed nations should maintain discreet silence if they design to remain defenseless, for by threats which cannot and will not be carried out they create resentment and invite attack. The fundamental obstacle to adequate military preparation, as yet only partially overcome, is indeed "psychological," if I may borrow from high authority. "Les idées font les passions" said that wise philosopher Mr. Taine, and in order to change men's course of conduct we must first change their ideas and orient their minds toward other paths. The American attitude toward preparedness has in it noth-

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ing of mystery. It is the natural product of our past, coupled with that vague yet attractive humanitarianism so greatly in vogue during the latter part of the nineteenth century which taught that war was an anachronism and the soldier a rudimentary survival of a past age, like the clavicle in the cat or the legs of the embryo whale. This alluring but, alas, essentially false philosophy was very prevalent, both in France and in England prior to the great war and largely accounts for the situation which exists today in Europe. In the United States, however, this cosmopolitan dream of universal brotherhood, based as it was upon a misunderstood philosophy of evolution, merely served to buttress ideas already existing and to give a philosophic garment to the conviction already rooted in the popular mind that America was unique in her strength, her just intentions, and her geographical isolation. True, American history did not bear out this pleasant, popular superstition. W e have had our share of wars. Our own Civil W a r was the greatest conflict, up to the present, that has raged in modern times—and the recent little Spanish War sufficiently demonstrated that we were not beyond possibility of foreign complication. But American history is largely made up of legend, and the legend of the minuteman and the militiaman triumphantly overriding foreign cohorts has sunk deep into the schoolboy mind and perhaps another generation or two will be required before some approximation to the truth is popularly apprehended. Yet the popular belief is easily explicable. Providence had favored American unpreparedness and the fortunate termination of the Revolution made it easy to gloss over the fact that the surrender of Cornwallis was made possible by a French fleet and a French army; a few glorious frigate victories in 1812, wholly of minor importance, covered up two years of inglorious war, uncrowned by victory on land, a

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war in which England sent but 14,000 regular troops to this Continent and which was a mere incident in her wide struggle with Napoleon. T h e Mexican W a r involved a hopeless disparity of forces. Y e t what needless waste of life! T h e Civil W a r was waged by untrained man against untrained man, and yet it was obvious the decisive victory might have come two years sooner had the United States possessed a trained body of men and officers capable of following up and completing half-won battles. T h e American conviction that no serious military preparation against possible attack is necessary rests upon other foundations, yet no less slender than the legend of American invincibleness. These foundations are: 1. T h e sea. 2. O u r policy of neutrality. 3. International law. 4. T h e balance of power in Europe. If we find a marked difference in the popular attitude of today toward preparedness, it is because the European war has surely demonstrated that none of these constitutes a sure prop upon which to rest American national security. It has been demonstrated that the sea places no obstacle to the landing of troops in large numbers b y modem vessels and modern methods. Large forces may in a few days be landed upon distant and hostile shores. T h e three thousand miles of blue ocean that constituted so formidable a barrier to an attack upon America has now become an easy avenue of approach. A traditional policy of neutrality is no protection to a nation either militarily feeble or morally nerveless. A traditional policy of noninterference in the concerns of Europe, that is to say in popular phraseology, "minding our own business," or in lawyer's jargon "neutrality," is no complete guarantee against war. T h e W a r of 1812 itself was fought

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b y the United States when it was the weakest among the nations because a long series of affronts to its neutrality had made it impossible not to sustain national dignity and independence. A neutral has indeed a collection of useful and recognized rights, but these rights become useless unless the neutral has the strength and determination needed to enforce them. Where may be found the belligerent who, in pursuit of what he dreams a righteous cause, may not flout neutral rights which have behind them naught save the voice of the lawyer and the cry of the sentimentalist defending his commercial or other interests? T o clamor insistently for these rights without a resolve to compel the fulfillment of corresponding duties furnishes a sorry spectacle of national impotence. T h e sack and destruction of Belgium, sacrosanct from the standpoint of international law and buttressed by every guarantee that human convention can give, has disposed of the facile and consoling belief in the self-operativeness of public law. International law is predicated upon existing situations and deals with vested rights. A power dominant but dissatisfied, driven b y economic determinism and militant political philosophy, need not fear the dictates of international law. Theories evolved b y learned jurists, debated and settled at Hague Conventions, become dead letters or mere matter for newspaper polemic if behind them does not exist the strong sanction which makes municipal law respected in wellorganized nations. A f e w years ago arbitration as a substitute for war, "law instead of force," was a cry which stirred our hopes, now so rudely shattered. American confidence in arbitration was based largely upon one hundred years of peace with Great Britain and the successful adjustments of difficult and in

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some cases dangerously provocative controversies. This ability to adjust these questions was largely attributable to common language and institutions and upon the fact that lawyers of both countries think in terms of the common law. Again arbitration is based upon international law but international law means nothing save for those who are satisfied with the maintenance of the status quo. International law will be appealed to and acquiesced in by those who have and are satisfied; it will not bind those who wish more and are strong enough to take it. As nations must be prepared for possibilities of revolution and anarchy, so the family of nations must be prepared to maintain the rights in which all are interested as against those who would seek to abridge them. The "will to power" can only be overcome by the "will to right." Neutral rights become a mere name when neutral nations cannot or will not combine to maintain them and the voice of an unarmed, timid, hesitant United States may carry little more weight in the world of public opinion than the querulous protest of the feeblest of nations. Decidedly, international law cannot defend us if we are unable to defend it. It is useful as a norm by which our rights may be measured and delimited but further than that it cannot aid us. No real world opinion exists and the phrase which I have oft heard reiterated prior to the war, "the public opinion of Europe," deals with an intangible, nonexistent thing. The balance of power in Europe may appear not to have concerned us, but nevertheless it has protected us for a hundred years. Mutual jealousies among the nations of Europe have so far kept the equilibrium that none had the time for aggression against the American continent. A destruction of this balance of power, a distinctive hegem-

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ony on the part of any European nation, would at once endanger our claims under the Monroe Doctrine and immensely imperil our security. Despite our traditional neutrality and our reliance upon international law, we have a foreign policy as distinct and as definite as that of any European nation. The Monroe Doctrine exists as an objective reality in the consciousness of our people. They realize that its subversion would subject us to the European policy of "the balance of power" and involve us in every European tumult. This policy was not a mere accident of the time, nor was it dependent wholly upon the circumstances of the day. The conditions have greatly changed and the Continent is no longer open to colonization; nor is there great danger of the extension of a despotic system, such as that favored by the Holy Alliance in the early nineteenth century, in the States south of us. The reasons for the Doctrine, however, remain permanent and are as evident today as they were in the time of Louis Napoleon, when the French expedition was ordered out of Mexico, or in the more recent days when President Cleveland and President Roosevelt in turn made it clear that the independence of Venezuela was not to be tampered with by Great Britain or by Germany. If we wish to remain neutral, that is, not subject to the play of European politics, we must maintain our Monroe Doctrine, without which we would be forced into the system of entangling alliances upon which the balance of power is predicated. First and foremost the Congress of the United States should provide a regular army of at least 2 0 0 , 0 0 0 men, with fitting reserves. This is a measure of present safety and in the troubled condition of the world today is imperatively demanded. In addition, adequate reserves must be prepared so

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that this force may be expanded to at least double that number with trained officers and adequate material. This is but a first step. There remain all the greater questions of preparedness, moral, intellectual, and material. Our country requires peculiarly a moral and intellectual preparedness. W e are recruited from all the races of Europe, and our first lesson to learn should be that of citizenship. H o w better can it be taught than by general military training in the schools, teaching respect for those things for which the flag stands and subordination to lawful authority. Plato reports in his Dialogues that Socrates demanded of Protagoras, "What arts do you teach?" "I teach," replied the great sophist, "the art of citizenship." "Then, indeed," replied Socrates, "you possess a noble art." An eminent man has admonished us that we must possess the international mind. Aye, but let us be sure that we first possess the national mind. When America has fully developed that, she will have gone far toward the moral preparedness without which all else must go for naught. Is democracy capable of maintaining itself from foes without as well as from disorders within? T h e question is pertinent. The advantages of aristocracy or monocracy for offensive warfare are manifest; the disadvantages of democracy numerous and great. The French and Swiss democracies have nevertheless indicated an ability to care for themselves by voluntarily resorting to conscription. W e Americans do not like the word. It is cacophonous because associated with absolute sovereignty, press gangs, and compulsion. As a matter of fact, general military service is the most democratic of systems and is an outcome of the French Revolution and the struggle for human rights; master and

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servant, rich and poor, aristocrat and commoner serve in the ranks alike, each distinguished only by his intrinsic patriotism and merit. Universal training is the greatest school of patriotism without which all other schools may become useless. One thing at least is certain: Manhood service must ultimately come. American democracy means to live. Some months ago I commented to Mr. Delcasse, then France's Minister of Foreign Affairs, upon the awe-inspiring spectacle furnished by his great democratic Republic during the mobilization and he replied simply: "Yes, sir, this people wishes to live." The only remaining question is whether universal training, with its concomitant moral preparedness, is to come, or whether we will await before calling down upon the manhood of the nation the trial by battle and the ordeal of blood. Must we needlessly sacrifice our young men to the unpreparedness resulting from unreasoning prejudice and sordid criminal economy, or will we yield to the dictates of logic, the teaching of history, the examples of our past and the great crisis of the Civil War, when conscription became necessary and was finally grudgingly accorded. May it never be necessary to repeat this not overinspiring spectacle. N o ineffective half-measures prompted by "pork barrel" perquisites must be allowed to lead the people into a sense of false security. T h e American colonial farmer was also a soldier; our first federal militia law assumed manhood service. Shall we return to the older American tradition, translating it into the terms of modern military science, or shall we follow the later industrial and commercial prejudices, English and American, against the soldier? Shall we prefer the teaching of Washington, or shall we rather rest upon the elsewhere so largely discredited economic and social dogmas of the Manchester school? The great British democracy has

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now finally chosen. Let us cast aside our deepest prejudices, inherited from the days of Medieval monarchy and fostered by geographic isolation, coupled with great industrial prosperity. Britain has finally resolved to depend upon democracy to save the nation. Heretofore favorable circumstances have allowed it to rely upon its great navy, the chivalry of the ancient aristocracy and the needs of its poorest class furnishing an apparently sufficient professional army. Thus defended, the great trading classes felt that they had discharged their duty to the State when they had paid their taxes. The Sovereign received the imposts; was he not responsible for furnishing the corresponding protection? True, but the people had become the Sovereign and general service alone could bring facts and theory into accord. At what cost today has the lesson been learned and under what unspeakable dangers? Had the warnings of Lord Roberts been heeded years ago, would the Empire have had to adopt manhood service as the alternative to destruction? A nation that cannot protect its citizens against lawlessness, injustice, and oppression is a nation in dissolution. Must the United States continue to refuse to learn and await until their own hour has struck? It is the solemn duty of the leaders of opinion to insist that no consideration of party or sectional bias, no personal ambitions, no inherited prejudices, no shallow rhetorician's wiles, nor pseudo-humanitarian formula shall allow the question to down. Shall America act now or wait until the enemy is at the gate? Shall we act now or wait until too late? Gentlemen, until that is resolved, there can be no other question.

VI THE LEAGUE OF NATIONS: ITS "GERM OF VITALITY"

more ardently supported the general aims of the League of Nations than Mr. Coudert. As he wrote in 1919, it was not so much the creation of such statesmen as Woodrow Wilson and Lord Robert Cecil as an outgrowth of the deepest aspirations of war-harried mankind. Its establishment had become a necessity of the times; "the instincts of peoples the world over understand this necessity." In two papers of 1 pip, here reprinted, Mr. Coudert set forth the reasons why the League ought to be accepted by the United States, and explained why he regarded the proposed trial of the Emperor William 11 as a just and wholesome precedent in the development of international law and the idea of world government. NO AMERICAN

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The failure of the United States to enter the League was deeply felt by Mr. Coudert. Once the League had been put aside by the Senate, lingering resentments, prejudices, and partisan commitments operated to give the Harding and Coolidge Administrations a frostily timid attitude toward it. This "League-O-Phobia" Mr. Coudert arraigned in a wittily scathing address of 1924. Europe, he noted, had a working institution utilized by fifty two nations for all kinds of cooperation; how long would it be before the United States joined in some of these endeavors? "It cannot come as a mere partisan movement but only with the approval of the sincere and honest elements of American opinion." American cooperation with the League did indeed steadily develop. But as the international situation grew worse with the rise of Hitler and the Japanese militarists, the League weakened. Mr. Coudert had to admit at the close of 1933, in a radio address, "The League Has Not Failed," here first published, that the withdrawal of Japan and Germany from Geneva had struck the world organization a body blow. He had to grant that Manchuria had shown that the peoples of the world (including the United States) were not yet prepared to make war on a nation which, like Japan, defied the sentiment of mankind and the findings of the League. But he still believed that the League principles would persist. If an institution had "any germ of vitality" its form might change, but its spirit and underlying purpose would survive. These papers are given distinction by the courage and faith which animate them; and it is clear that in the United Nations Mr. Coudert later found the League which he so valiantly defended reborn in altered form, but with spirit and intent unchanged.

1

The League Basis for a Better World System FROM THE LEAGUE OF NATIONS MAGAZINE MARCH

T

1919

HE LEAGUE is the result of the logic of events rather than of the will of statesmen or of the theories of political philosophers. Nationalism, in many respects a beneficent principle, is also in many cases a disruptive force. It succeeded to and replaced those traditions of European unity embodied in the concept of the Roman Imperium. The national movement slowly developing through the eighteenth century and breaking out with fury during the French Revolution, led, like the Reformation, to a quarter of a century of war. Present conditions in Europe are calculated to lead to indefinite warfare in the attempt to realize national aspirations. Such warfare can only be avoided by co-operative action upon the part of the great nations. Necessary self-interest at a time of continuing peril dictates a permanent League of Nations as in similar fashion the temporary union of free democratic peoples was essential to save civilization from the assault of Prussianism. The instinct of peoples the world over understands this necessity. Two powerful forces or ideas are at work. That which makes for national self-consciousness and that which aims at a wider organization of humanity. They are the two great dynamic forces of world politics today. Nationality must be recognized and its rights asserted and maintained by an appeal not to force but to the Association of Nations which, having recognized in principle the justice of those

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claims, is now creating a mechanism for overcoming the difficulties incident to their just application. T h e League of Nations has been injured by its more enthusiastic adherents who, in declaring that it will end war and inaugurate the millennium, play into the hands of its enemies. What it can do and will do is to adopt federation as a working principle under which the nations may maintain their national existence without necessary recourse to war. This principle has made America what it is; its application can alone save Europe from an indefinite vista of conflict. The pivot upon which the League of Nations must mainly revolve is the solidarity of the English-speaking Commonwealths. With France we will always have close, sympathetic, co-operative relations. N o greater task devolves upon the American citizen today than to strive for good fellowship with those who have the same language, the same common law, kindred institutions, a common consciousness of right and wrong, and whose combined power in men and resources could defy militant aggression from almost any combination of powers seeking world domination by force. The United States cannot, and, in fact, never has, lived in isolation. T h e Seven Years War, as well as those wars incident to the French Revolution and Napoleon, involved the American Colonies and the American nation. T h a t we can be indifferent to nothing which threatens world strife the war has proved. Our undivided duty is to work for the federal principle and its practical application, through methods which will ever grow by practice and experience more efficient. Thus, the success of the League of Nations already existent will depend most largely upon American opinion. It is the duty of all interested in bringing about a better world system to educate that opinion and to create a "state of mind"

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favorable to international co-operation. In order that this may be effected, partisanship must be eliminated, superficial objections answered, erroneous ideas of national sovereignty, mostly "made in Germany," put aside and moral and intellectual approval of the Nation marshalled behind its President. He is the spokesman in an inspiring attempt to apply the federative principle on a world scale to bring about a better system and a firmer foundation for international law and morality. The doctrine of sovereignty was never carried so far as by the Prussian state: it defeated its own end. The draft approved by the Conference at Versailles for the constitution of the League of Nations embodies the best attainable in the present condition of opinion. 1. It provides for a permanent organization always ready to function. 2. It makes provision for a "taboo" or outlawry of any nation refusing to abide its decision. 3. It furnishes machinery for solving one of the world's fundamental difficulties—to wit, the exploitation of undeveloped peoples. 4. The difference between the proposed plan and the mere opportunity for arbitration afforded by the Hague Conference is, of course, fundamental. The latter assists the established practices of arbitration and aims at some codification of international law, while the proposed League institutes a new world order, designed to correct the inherent, disruptive tendencies, inevitable in the system of theoretical, sovereign, independent, unrelated nations. 5. Above all, it places preponderant power in the hands of the world's great Democracies and gives to France, the United States, Great Britain and Italy an influence which can always be decisive against predatory power under whatever forms disguised. The agreed plan marks a capital event in history and furnishes a basis for infinite development to-

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ward international co-operation and the marshalling of material and moral force behind law. W o r l d opinion is at last given an organ of expression. T h e part of America in bringing about this result is one for just patriotic congratulation. 6. T h e Monroe Doctrine announced to the world that the United States would protect the integrity of South American States against foreign aggression. TTie League extends that principle of protection to all nations. T h e rights of the United States are not impaired; the guarantees of the states of South America are strengthened. It is a misapprehension of the meaning of the Monroe Doctrine to believe it endangered by the proposed plan. 7. Those who oppose a League in principle are, in large part, the men who obstructed America's entrance into the world war on the theory of "isolation" or unconcern with the affairs of other nations, a theory never true to the facts and absurd in this century in which nothing is so impossible to conceive as a Lotus-eating America "careless of mankind." T h e experience of the Great W a r has killed the theory, save in the most parochial minded. This is no time for "Little Americans." 8. On the other hand, there are those in and out of the Senate who, while honestly favoring a League of Nations, attack the proposed plan on the ground that it would require the sending of American troops to take part in Europe's struggles. While this appears to us a parochial view of overlooking changed world conditions which necessitate action on the part of America to maintain peace in a world which modern methods of transportation have made comparatively small, we think that an extension of the very valuable plan of mandatory control would meet the objection, as far as it has any foundation, by dividing the world into four zones. One of these would be the Western Hemisphere, in which the United States, acting in accordance with the League's

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mandate, could intervene when anarchic or other conditions threatened world peace. The United States, as in the case of the Philippines, has never hesitated in its willingness to give an account of its political stewardship. 9. Inaction would be fatal. Some means to solve pending problems must be found. The mass of mankind desires something that may save civilization from war or anarchy. Leaders of opinion cannot be dumb to the clamor of world anguish. The present proposed constitution of a League of Nations, with slight modifications not inconsistent with its announced principles, and with a revision clarifying some of its clauses, would be the greatest advance yet made by mankind on the long, cruel road from the reign of force and fraud toward that of law and peace.

2

The Proposed Trial of William II MEMORANDUM APPEARING

FOR

INTERVIEW

IN THE N E W APRIL

29,

YORK

WORLD

1919

T

HE ACTION of the Peace Conference in determining to hold the Emperor William II to trial for responsibility in the initiation and conduct of the Great War is a memorable act in history. International lawyers have differed upon the legality of the proposed proceeding. There exists, in fact, no exact precedent. The law, however, must proceed from precedent to precedent, and there are times when it is not only fitting, but necessary, unless international law is to be wholly devitalized, to create a precedent. This is one of the occasions. The thing really to be determined is whether such a precedent is in accord with the today-admitted and settled principles of international law and morality.

There has for a century been a growing conviction that nations, like individuals, must be responsible for their conduct, and that the ancient maxims that "the King can do no wrong" and that political crimes are not punishable as other crimes are outgrown and the product of a passing society. Since the beginning of the War the leaders of the Allied nations and the President of the United States have enunciated the principle of national responsibility and this principle has met with general acquiescence. International law depends upon the consent of civilized nations. The agreement of all of these nations, outside the outlaw states of Germany and her confederates, to make this principle of national responsi-

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bility effective and actual rather than a mere rhetorical statement is a most important event. It will act as a deterrent in the future to those statesmen, or military leaders who hope to gratify personal or national ambitions by criminal assaults upon other states and by violating settled rules of international law and definite treaties. Guilt thus becomes personal and punishable, and the immunity of sovereigns from retributive justice comes to an end. Feudal conceptions of irresponsibility for war are succeeded and made ineffective by a modern principle of national criminal responsibility for lawless actions. There could be no finer vindication of the real underlying principles upon which the legal relations of nations must be founded in the future if a better world order is to be established. This is no time for legalism and adherence to the letter of past precedents. Precedents based upon existing moral concepts and principles accepted by civilization must be created. N o local tribunal could adequately deal with the situation, and the constitution of an international court with all the safeguards of impartial legal procedure and a public trial will do more to vindicate the force and effect of international treaties and law—deliberately flouted by the German Kaiser and his militant minions—than anything which has been done perhaps since the Congress of Vienna. International wrong is no longer a matter merely concerning individual parties. An act which disturbs the peace of the world concerns the family of nations and becomes not a mere tort but a criminal act. T h e Paris Conference, in its latest recommendation, has vindicated this sound and progressive view. In addition, the disclosure of the facts leading to the war, the calculated and criminal plans of the German Government to conquer and disrupt an unsuspecting Europe, will be laid bare under the best guaranties of accuracy and proof and furnish an object lesson fraught with good for the future of the world such as could be obtained by no other method.

3

"League-O-Phobia": A Recent Malady ADDRESS BEFORE THE LEAGUE OF NATIONS NON-PARTISAN

ASSOCIATION

JANUARY 8,

H

1924

YDROPHOBIA, once a dangerous and prevalent disease, has largely lost its terrors, thanks to the genius of Pasteur rather than to the passage of the Eighteenth Amendment. Alco-phobia holds a high place among those many other prevalent phobias for which we have, as yet, found no Pasteur. Anglo-phobia seems to be rapidly becoming anemic, but the germ is probably not yet extinct, and a somewhat unexpected Gallo-phobia, carefully nurtured and fomented, has recently developed. We appear to be in an age of phobias, tortured first by one fear and then by another. The distorting of facts and perverting of history in our press seem at times to reflect a series of mental aberrations rather than to record the utterances of normal thought. A very short period during the French Revolution has had indelibly stamped upon it by the verdict of history the name, "Reign of Terror," but I incline to think that, somewhat different in its manifestations, the present reign of terror is much more widely spread, and perhaps, in many respects, more seriously detrimental to the orderly progress of man. Fear, largely perhaps as a result of the Great War, seems to pervade our communities. Organized minorities in masks and symbolic emblems have organized hatreds into a gospel

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of terror, bidding fair to arouse reprisals and to engender counter-phobias. But all these fears may, at least, find a basis of explanation in survivals from a by-gone age, misinterpretations of the past, or misconceptions of the present. They appear largely passing phases, and, with the restoration of normal conditions, will tend to disappear. However, there is one phobia difficult to explain, strange to contemplate, and that phobia is League-o-phobia. At the outbreak of the Great War, and during its continuance, it would have seemed hazardous to predict that America —pledged to arbitration, to the development of international law, and to the paths of peace—would at the close of the great conflict, refuse to enter a general league of civilized nations for the purpose of substituting the rule of law for that of force, the methods of reason for the methods of the jungle. Stranger still would it have appeared that the formation of a League of Nations should have excited in a mass of people, many of them honest and intelligent, a fear arising to the dignity of a phobia lest America might adhere thereto. Yet such is the fact which it is idle to ignore. How widely this has really spread it might have been possible to question were we not now confronted with the actuality that the United States has not even yet been willing to adhere to the World Court. That such adherence would merely enable America to take part in the selection of Judges in an existing world tribunal to which the nation might have recourse when our Government should desire it seemed something so obviously free from danger that the opposition thereto must be sought in psychologic causes. It seems almost idle to reason with the mentality that fears lest America's adherence to the Court be detrimental to the nation's interests. Such a fear, whether in or out of the Senate, is predicated upon a phobia which requires careful

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and systematic study. It cannot be merely reasoned away, because un-reason cannot be corrected by reason, passionate prejudice by calm analysis. A common denominator is lacking; hence the basis of the phobia must be studied and its causes, if possible, eliminated by educational methods of a long, tedious and scientific character. T h e fear of adherence to the Court is evidently predicated upon League-o-phobia— the dread that, in some way difficult to perceive, America might be thereby committed to the existing League of Nations. T h e fact that opposition to the League is something to be explained on grounds inherent in the psychology of the crowd, rather than on any rational basis, appears clearly enough from the diversity of the attacks made upon it. On the one hand it is treated as a Super-state, and on the other we are told that it is too feeble to effect any real result. Some say it will destroy our sovereignty; others, that it will breed war; still others, that it is a mere talking assemblage without power. In fact, every argument which may be damaging to the mere idea of a world League is prevalent among many politicians seeking votes and journalists courting notoriety. All these arguments have been met and admirably answered, but the mentality which gives rise to the League-ophobia still largely predominates. A prejudice may, indeed, be manufactured, but it must have for a basis certain misconceptions and consequent fears. W e must have not only the patience to combat by reasoning these misconceptions, but still more the power to allay fears by creating a better and more hopeful attitude toward life. T o conquer fear we must stimulate and maintain an ideal. In many people in this land, victims of League-o-phobia, there exists a sincere desire for world betterment through the prevalence of law. Often this rises to the dignity of a religious conviction.

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A phobia is an unreasoning, an almost animal fear. A n ideal is a large and generous mental conception which has passed from the intellectual into the emotional nature of man and which excites him to sacrifice and suffer f o r its attainment; it is the opposite of a phobia, which is fear created b y a prejudice, while the ideal is an idea spiritualized and resolved into a conviction. T h e y both lie deeply embedded in the subconscious elements of the mind, but the ideal is generated in the highest mental faculties, the phobia in the lower instincts. T h e one originates in the mind of a saint, a scientist or an artist, the other in the herd instinct. T o cherish the thought of friendly association among the English-speaking peoples f o r the development of free institutions, permeated with the spirit of the common law and consecrated by a common historical heritage, is an ideal. T o hate the English people because of past differences, to campaign for the retention or re-establishment of obsolete and prejudiced school-histories, to attribute to every act of the English Government and every expression of English opinion sinister motive, is a phobia. T h e two are as far apart as the poles, and yet both, f o r effective expression, rely upon the emotional side of man rather than upon the purely intellectual. T h e so-called "spirit of the c r o w d " is not necessarily evil, as the eminent psychologist, Le Bon says: Men in the mass are always intellectually inferior to the individual, but from the viewpoint of sentiments, and of those acts which sentiments provoke, the mass may be, according to circumstance, either better or worse. All depends upon the way in which it is made the subject of suggestion. . . . The mass may be easily led to death for the triumph of a belief or an ideal. Their enthusiasm may be aroused to highest pitch for glory and honor. They may be brought almost without bread and without arms, as during the crusades, to deliver from the infidel the tomb of the Savior, to defend as they did in '93 the

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soil of the Fatherland. T h e s e heroisms are evidently somewhat inconsistent, but it is with such heroisms that history is made. If w e give credit to nations only f o r the great actions w h i c h have been dictated b y cold reason, the annals of the w o r l d would register v e r y f e w . 1

In this thought we have reason for encouragement. In the end, if humanity is not to retrogress to the cave-man, the ideal must conquer the phobia; but the process is slow, the struggle long, the effort great. T h e League, at first hailed throughout our land as a noble concept, a great step toward the brotherhood of man, was, during the course of the long, bitter, and, as I think, unnecessary struggle between the President and the Senate, designedly brought into conflict with other powerful emotional forces, some of them such as nationalism based upon an ideal, others such as hatred of the foreigner, mere fear and primitive passion. T h e cause again was injured on the one hand by the enmity of the extreme chauvinist and on the other hand by the advocacy of the pacifist or peace-at-any-price man. Between the two, reason often faltered. Let this situation not discourage us; no great movement can avoid it. T h e fight for our Constitution was a long and arduous struggle against a local patriotism which, rooted in a distant past, had in time degenerated from a healthy sentiment of robust independence into a parochial inability to understand the ideal which made f o r a larger patriotism. This sentiment, honest but misguided, persisted down to the Civil War, and was in fact its cause. Much I feel can be done to meet the present situation by recognizing mistakes in the past and by endeavoring to reach the honest, but misguided, who believe that adherence to the 1

Gustave L e Bon, Psychologie des Foules, ed. Félix Alcan (Ancienne Librairie Germer Baillière et Cie, 1895), pp. 21-22. Translation here by Mr. Coudert. [Ed. note]

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League is inconsistent with patriotism, and that the League will involve us in unnecessary danger of foreign war. What can we do today, after nearly four years of futile debate in America, during which time the League has actually functioned as a practical working organization, accomplishing beneficent results and averting several armed conflicts? The logic of events is with us. Recently Dr. Butler queried whether "peoples can learn." The teachings of history often indicate that peoples learn little or nothing from the past, and yet I do not think we can wholly dissociate the experience of the mass from that of the individual. In any given community, some superior individuals do learn from the teachings of the past and it is they who suggest those ideas which in the mass create an ideal. So many men have experienced the dangers following upon the development of a "nationalism," which knew no law but supposed "necessity," that they see no hope for the world save in the submission of nations to the rule of law. Moreover, some of the terror which the thought of a League of Nations involves as tending to a super-state, is rapidly disappearing. The logic of facts cannot remain unheeded forever. The practical working of the League has shown no excess of power but rather great possibilities of development as an institution to avert dangerous controversy and promote a wider international co-operation in every domain, from boundary disputes to the struggle against disease. It presents actual results and practical possibilities hitherto characterized as Utopian. M y own belief is that it will be a steadily progressive institution, and that its leaders have wisely abstained from attempting coercion and sudden exercise of direct power. The real function of the League must be to give the nations an opportunity for discussion, for agreement, for the

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finding of a solution in law rather than in force. International law fails to cover many matters the subject of international controversy and sometimes of conflict. Heretofore it has often been impossible to adjust these matters save by the use of direct force between the parties. The incidents of the workings of the League in such matters as the Silesian question and the title to the Aland Islands indicate that such matters may be happily adjusted by recourse to its good offices. The case for the League grows stronger every day. Article x has been robbed of its terrors by the interpretation and application made of its vague and general provisions. It is seen that the Reservations with which the majority of the Senate desired to couple American adherence would not have precluded effective participation in the League. A new institution must be of slow growth. Our Supreme Court was for a long time, and still is, an object of hostile attack. In the end, man is little without institutions. The pessimist tells us, with some truth, that human nature has not improved or changed since the time of the CroMagnon man who drew such wonderful animal pictures on the rocks in Southern France and Spain twenty-five thousand years ago. The scientific pessimist is perhaps right in his major premise, but his conclusion is falsified by history. Man, with all his weaknesses, created institutions, such as the Church and State. A great part of his emotional and sentimental life was staked upon the success of such institutions and through them his efforts have been canalized with slowly developing effect along lines of common action and common concern. I do not believe that mankind is headed backward toward the cave age. The spirit of association and co-operation has not ceased because of the Great War. On the contrary, in many respects the War fostered it as it had never been fos-

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tered before, and its results constitute a useful lesson to the individual capable of analysis. T h e institutional spirit is stronger today than ever. It cannot be indefinitely thwarted by the natural recrudescence of racial or national hatreds engendered by the War. T h e American people have been, by reason of circumstance, history and education, peculiarly susceptible to generous ideals. T h a t of international co-operation through the development of an institution tending toward the rational settlement of disputes is powerful and must grow. T h e great movements which have determined American history were not based upon a calculated self-interest. League-o-phobia will yield to the logic of events and to the larger self-interest necessitating co-operation with the nations of the Old World for economic and social needs. This self-interest, obvious to the leaders in the world of business, will find itself vitalized by the ideal of co-operation, and League-o-phobia will, in time, become a thing of the past. There is in Europe a working institution utilized by fiftytwo nations engaged in every kind of co-operation, based upon the common interests of man and sustained by that humanitarian sentiment, old indeed, but in its practical application largely developed in the last two generations. In what form, with what hesitant steps and in how long a time the United States will join with these nations, no man can say. It can not come as a mere partisan movement but only with the approval of the sincere and honest elements of American opinion. That it will come in time all must believe who have faith in the validity of human effort. Whatever the economic or historic determinist may assert, institutions have been built up by the conscious activities of earnest men. This will be, I believe, the history of the League. It is a

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great institution that was not born to die. Actual practice has shown how easily some articles of the Covenant may be modified or interpreted without impairing the substantial fact that the greatest group of nations known to history are sitting together in regular permanent organization for the promotion of general betterment through co-operation and the development of law. This Association has no ground for discouragement. It is but necessary to carry on with unfailing patience the process of education, mental and moral, that in the end America may lend its great weight to the new institution, the ultimate evolution of the aspiration of ages, the practical resultant of human experience through generations. T o perfect that institution in its workings must be the task of the generations to come. T o secure the association of America with that institution is the task of the present generation.

4 If International Co-operation Fails, War Is Certain ADDRESS BEFORE T H E LEAGUE OF NATIONS NON-PARTISAN

ASSOCIATION

OCTOBER 7 ,

1924

E ARE THE VICTIMS of a mistake, y o u and I, y o u the

victims, I the objective. Our over-amiable Secretary thought that I had been to Geneva and knew a great many things that I don't know. I am glad to have credited to me a knowledge that I don't possess. I need all the reputation that I can get. But he quickly discovered that while I went to Geneva before the Assembly, I did not go there during the Assembly. M y reason was the pressure of business which I could not avoid. I had hoped and intended to go and didn't get there. When I looked down into my conscience or what the psychologists call "subconsciousness," I discovered that in addition to business pressure, I felt shy about the matter. I was ashamed to be there as an American. I felt mortified at having to explain to every foreign friend I happened to have (and I am fortunate enough to have a goodly number of them) why America was not in the League of Nations, and therefore I did not join in that army and ask for the mostfavored nation treatment, for I did not think I was entitled to it or that I was able to make out a case. For that reason I cannot bring you any particular news of Geneva, and I will only detain you a minute with some ob-

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servations which I am sure will only articulate what you all have in mind. Our friend, Hudson, who understands all the technical sides of this question perhaps better than anybody in America, explained to you that our being outside of the League was only tolerated and tolerable because we really weren't. H e described the many activities connected with the League in which we have taken part in common human decency and because the people in Washington were human after all. And then, there is another side of it that perhaps he didn't comment upon, and that is the fact that in a great many of the activities of the League, the United States, by a wise and to-be-commended but nevertheless secret diplomacy (I am not speaking from confidential sources—anyone who reads the newspapers can read between the lines the fact), is taking a part of considerable activity wholly outside of the spirit of the Senatorial and Congressional resolutions forbidding participation in reparation and other matters. There are gentlemen sitting there with those boards and taking, if not a voting, a very active moral part in all the workings of the League, sustained and properly aided and encouraged from Washington. Now that is a fortunate thing, and under the circumstances that page in secret diplomacy I think is an entirely reputable one, but it is one that can't go on forever consistently with the dignity of a great and self-respecting nation. W e cannot forever hope to have an Executive who is sympathetic with our general purposes and opportunities, particularly and expediently and perhaps wisely fearful of dissension among departments of government, who will go ahead doing what he can without discussion in public places to reach the purposes for which the League was formed. Such a situation may be temporary, but it is impossible, undignified, and improbable that it should become a permanent

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system. That kind of diplomacy was denominated in the old days as a diplomacy of czars. I say it without criticism for at present I commend it, but I am looking forward to the time when the Executive at Washington can come out and frankly avow that he is in whole-hearted sympathy with the objectives of the League and will do publicly everything that he can to favor it. I am one of those travellers described by one of the former speakers who reads sometimes, when he can't get anything else, the three papers published in the English language in Paris and talks to porters and hall boys and the Englishspeaking people in Paris; but I also, in common with our amiable and highly talented friend, Wickersham, have another source of information. I am tolerably familiar with what the French-speaking population say, and I did notice, and I had considerable opportunity for observation, an interesting and to me very significant change in the mental attitude, which gave me some hope as to a change in the mental attitude of a large part of our own people. Almost since the matter was first mooted in France under the able lead of Mr. Léon Bourgeois before the beginning of the war, the League of Nations, outside of a small group of highly intellectual, deep-thinking and wise men, has not been looked upon as a very serious institution—in the sense of being an institution with possibilities of guaranteeing international security. The attitude was that we must depend upon ourselves for security, for there is no other security possible. That attitude was very widespread, and I recall that at the end of last July, when it looked as though the London Conference had failed, one of the Marshals of France said to me, "If the attempt at international co-operation fails, war is certain in Europe. I haven't any doubt that I, with my colleagues, will be charged with protecting the integrity of the soil alone as against a new German onrush. Whether we can do it or not I do not

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know, but we will have to, if necessary, die in the attempt. Come what will, certain it is, unless we stand with others, for we are numerically speaking a small nation, and those who think us guilty of militarism simply betray a vast ignorance of current statistics which would be amazing if it were not so common." That attitude, that certainty I firmly believe was built upon sound convictions, that alone—standing alone in the world of nations—France would assuredly be met by an invasion again within the next few years—no man could say whether it would be three, five, or eight. But that certainty throughout the mass of the people is what has led to the extraordinary rapid change in the general mentality, so well articulated by Mr. Herriot—to wit, that the safety of France, in common with the other nations, lies in the League of Nations. And that, if you think a little further, explains the desire that Germany shall also enter the League because outside of it she is far more dangerous than inside. If my adversary is with me about the council table with many others, greatly outnumbered, I can control him. If we are alone at the council table and he is outside I know not where, and machinating I know not how, he grows infinitely more dangerous. Therefore, common sense and common interest in the national security indicate that the corollary of the first proposition is that Germany must be in the League, and I haven't any doubt that Germany will shortly be in the League. And then we will have the extraordinary spectacle that the United States and Soviet Russia are alone apart from the co-operation of all the nations of the world, a situation which would be utterly ridiculous if it were not so tragic. But possibly then, when the great mass of people whose parochialism may be forgiven by reason of the fact that they are so distant—not in a modern and actual sense but in a geographic sense—from the events of Europe, the great

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mass of the people may then wake up to the fact that it is a dangerous thing to be alone in the civilized world with a Soviet Russia who is trying to get away, as Hudson tells you, from that loneliness, and possibly with a Turkey that is willing to stand aloof. When that situation arises, and it can't be far off, I am very hopeful that what I have termed, for lack of a better word, "League-o-phobia," an unreasoning and unintelligent but psychologically explicable dread of a great institution, may give way to the slow-but-sure processes of ultimate reason; and that waked up by a great shock to find themselves in a position lamentably humiliating, as men are in life sometimes, the people of the United States may then go back to their older tradition and realize that it was the United States that was the parent in the modern world of the effort to substitute law for force, arbitration for the arbitrament of war, the crocodile tears of lawyers for the bitter tears of bereaved women; and that common sense, common justice, and wisdom require that we shall go back to something better, to join for security, for honor, for the progress of mankind, in this great and successful existing institution.

5

The League Has Hot Failed NOTES FOR RADIO ADDRESS DECEMBER

17,

I933

#

T

HE LEAGUE OF NATIONS today evidently faces a crisis involving its very existence. Two of the five great powers have withdrawn, and a third threatens to do so. Can it and will it survive this crisis? Is its existence necessary in the modern world, and can it become a League of all the nations rather than as it stands today—a League merely of some of the nations? Human society, with its progress and its reactions, with its creation of institutions and with their decay and disappearance, seems to be ever in movement. It is scarce possible for the men of one generation to realize the time necessary to effectuate real and permanent changes in human customs and conduct. The national states of today were created only after centuries of conflicts occurring intermittently ever since the breakup of the Roman Empire in the West in the fifth century. These great nations now maintain law and order throughout a vast portion of the globe. The Great War, however, has taught us the immense havoc wrought when the nations of the world engage in war conducted with the resources of modern science whose destructive as well as constructive agencies have become of an ever-growing and unbelievable potency. After the nightmare of the seemingly interminable four and a half years of war. there arose among men of all na* Given under the auspices of the Foreign Affairs Forum.

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tions a hope that it might be the last war. That hope found concrete expression, mainly under the influence of a compelling leader, the late President Wilson, in the Covenant of the League of Nations. That Covenant was based upon the underlying thought that cooperation among the nations of the world must take the place of rivalry and war; that the interests of one were the interests of all, and that in an international parliament the questions which had heretofore led to war might be determined by pacific methods similar to those used to settle private controversies. The thought of a general reign of law was not a new one. The idea of the unity of civilization was as old as the Greek world and had been transmuted into reality through Roman domination. It persisted throughout the Middle Ages in the form of a universal church and empire, and in the darkest days it was never absent from the minds of men. It was this idea, immensely reenforced by the reactions due to the Great War, which led most of the weary world to the Covenant of the League. For some fourteen years the League of Nations has been an established reality. It has performed great service; it has already averted several wars; it has created a center where nations, through their representatives, may meet and discuss matters of common concern. Today, however, its very existence is threatened. Japan and Germany have withdrawn from it; Italy threatens to do so; the United States seems as remote as ever from adherence, and Russia is still aloof. Must this great institution perish and be numbered among the many futile attempts at human betterment, destroyed through the limitations of human nature? No one can positively answer this question, but I for one firmly believe that the League is destined to live and that in time it may become

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a real League of Nations, that is, one supported and maintained by all the great powers of the world. Let us see what has been the cause of the present difficulty. First and foremost, let us remember that America, by casting her weight into the scales, finally determined the result of the great conflict, and thereby a victorious peace for the allies was consecrated in the Versailles Treaty. Had America ratified that Treaty and remained in the League, it is probable that that Treaty would have been recognized as the public law of Europe and of the world, and that it might have been sustained against dangers of infraction by any one nation however strong. The underlying theory was that an aggressor, once so adjudged by the organs of the League, should be treated as an outlaw, and that measures tantamount to war should be taken against him in order to restore the peace of the world. This thought was reenforced by the Kellogg Pact, adhered to by practically all the nations of the world, which stipulates that only pacific means of redress can be sought to settle international disputes. Many other treaties have the same object in view, and it might have appeared, upon merely reading these documents, that the world was destined to attain a real reign of law. These high hopes have now been largely dissipated, first, by the conflict in the East, and now by the failure of the Disarmament Conference, the withdrawal of Germany, and the threat of Italy to do likewise. Is it not possible that the plan was too ambitious, the hope too contrary to past experience? What was the element in the League which led to such disappointing consequences, and can that element be eliminated so that the League may definitely become a permanent institution of accord and conciliation? In the earliest days of the League of Nations, two views prevailed; one, that the League could only be effective if

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it could possess preponderant military force to repress the outlaw nation; the other, that such action would merely mean further war in the name of peace and could thus result in no lasting benefit. It is evident that the first view could only prove itself sound if the public opinion of the nations accepted it fully, and if men were willing to risk their lives in an endeavor to save world peace, even when their own country was not immediately threatened. I think it was worth while to try the experiment, and I believe we have had the answer. The peoples of the world are not prepared to make war on any great nation which defies the findings and the resolutions of the League. This fact has now been established, and the first view referred to has been found impracticable in the present state of the world. The nations were unwilling to wage war to coerce Japan to respect the territorial integrity of China, despite the findings of the League as to Japan's violation of treaties and of the rights of China; nor is there any sufficient sentiment, even in Europe, to bring about that which may be termed preventive war for the enforcement of the Covenant as to disarmament. During the debates in the Senate on the League Covenant, Article x was the main point of attack. It stated that T h e members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. 1

It was argued that this undertaking was impossible in view of the constant changes that ever have and that surely will in the future take place. Article xvi providing for sanctions, that is to say, financial 1

AMERICAN

(1919)-

JOURNAL

OF I N T E R N A T I O N A L

LAW,

Supp. Vol. 13, p. 131

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and economic action against members of the League resorting to war, was criticized on the ground that this would, in the end, merely lead to war and that the very evil which the Covenant was intended to suppress would thus be brought about. Events have since shown that the larger national states are so powerful and modern science furnishes such destructive weapons that the nations will not attempt to coerce a powerful belligerent. Must we, therefore, conclude that the League has failed and must die because it has not been able to use force as against those who have violated its Covenant or have refused to comply with its spirit? I do not think so. T h e history of institutions is a strange and an interesting one. If they have in them any germ of vitality their forms may constantly change, and yet the spirit and purpose underlying them remain. It is often overlooked that the Covenant itself provides for the possibility of change and, read as a whole, does not attempt to stereotype into impossible fixity national boundaries. Article xix provides that: The Assembly may from time to tion by Members of the League of inapplicable and the consideration whose continuance might endanger

time advise the reconsideratreaties which have become of international conditions the peace of the world. 2

Article xxvi provides that: Amendments to this Covenant will take effect when ratified by the Members of the League whose Representatives compose the Council and by a majority of the Members of the League whose Representatives compose the Assembly. 3

T o my mind, the fundamental feature of the League is not found in Article x or in Article xvi, but in the fact that 2

Am. J. lnt'l Law, p. 136.

3

Ibid., p. 139.

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the nations of the world may have a definite organization for the discussion of their controversies and for finding means to adjust them. In this way, a world opinion may gradually be created which may influence the actions of nations and give time for reason to prevail over those forces of collective insanity which, when once loosed, bring war. Nationalism, unrestrained and fanatical, is bound to lead to war, and we are perhaps on that road now. It may well be that no efforts connected with the League or otherwise can long maintain peace in Europe as against the furious passions consequent upon the war and greatly accentuated by the profound economic depression. Even in the event of war, the fact of the existence of the League might prove a strong factor in bringing about an earlier and a better peace. Sir Edward Grey repeatedly stated that had he been able in 1914 to gather around a council table the great powers of Europe, the World W a r would, in all probability, have been averted. Let us not forget that the Constitution of the United States was subjected to four years of fearful war and that it has been the subject of bitter debate and heated controversy during its whole existence. No, the League has not failed, but certain provisions of the League from which many people hoped much have proved impracticable. The thought derived from the analogy of private law that the national aggressor might be suppressed by the united power of other nations has been found for the time being impossible of realization. W e must content ourselves with something more modest. The idealist is one who believes in the power of human effort to ameliorate the conditions of human life; the realist is one who believes we are driven by ineluctable fate and an incorrigible human nature to submit to the workings of laws over which we have no control.

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I take it that the idea of Plato as to the sanctity of the human soul, working mainly through the Christian Church, required some two thousand years before it finally triumphed in emancipating society from legalized slavery. It was the Roman philosopher and master jurist, Ulpian, who said that by the law of nature all men were free, but that by the civil law some were free and some were slaves. The march of a great idea is necessarily slow. On every hand it is beset with counter-ideas of an earlier period. It begins frequently as the dream of a cloistered philosopher to finally end as a recognized commonplace of civilized societies. If America has contributed anything to the march of philosophic ideas it has been the inherent belief in the validity of human effort. It is not wise to attempt the role of a prophet, but I cannot but believe that the League will remain in existence because it is a necessary counterpart of that intense nationalism which, unless counterbalanced b y the sentiment of the inherent interdependence of nations, may well destroy our civilization of today, just as earlier civilization perished by fire and sword. T h e friends of the League must not be discouraged because their hopes have been slow of realization. Fourteen years in the life of an institution is nothing, and the League carries with it the hopes and aspirations of millions of men throughout the world. More and more the American G o v ernment has been willing and able to cooperate with it, and I am sure that all efforts to modify it by dropping the impracticable elements of force and stressing the elements of rational discussion and diplomatic negotiation will more and more find favor in this land where war is abhorred. Another great war may well draw the United States into its vortex as it did in 1917, and as it did in the time of the gigantic struggle of Europe with France and Napoleon. A n y

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effort to re-form and to strengthen the League cannot but be helpful. I incline to believe that more might be accomplished by admitting the fact that coercion by some of the members of the League against others, or by members of the League against nations outside, is not realizable; that a useful and perhaps necessary experiment has been tried and has failed, but that such a failure does not import the destruction of what may in time become the parliament of man, and that today the League may do much to aid in averting another war or at the worst to mitigate its horrors and shorten its duration. The League will live because the world cannot live without it or its equivalent as the expression of a common civilization.

VII AMERICA TOTALITARIAN WAR AND WORLD ORDER

WHEN MUSSOLINI in 1936 conquered Ethiopia, and Hitler marched his troops into the supposedly demilitarized Rhineland, the League of Nations proved so utterly impotent that its prestige collapsed. A frightful civil conflict at once began in Spain, with the totalitarian governments of Nazi Germany and Fascist Italy taking the side of the rebels. As the threat of a new world conflict became graver, a resurgence of isolationism in the United States brought a demand for legislation which would keep us free from involvement. The result was the three unhappy mid short-lived Neutrality Acts of 19351936-1937; laws which gave up certain historic American rights, warned the European democracies that they could get

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no aid from us except by paying for it in cash and carrying it in their own bottoms, and encouraged Germany, Italy, and Japan to believe that they could push their aggressions forward without any worry over possible American intervention. Temporarily, the idea of world organization in behalf of peace and international law seemed to many discouraged Americans and Europeans to be left without substantial support. As the world crisis rapidly developed, Mr. Coudert made it clear that his old convictions and loyalties had in no wise been impaired. In the address of 1936 here printed under the title, "The Neutrality Act: A Victory for Isolation," he made plain (albeit in moderate terms) his disapproval of the new legislation, and his belief that a different course would yet be followed. Any embargo measure, he declared, should be coupled with a policy of implementing the Kellogg-Briand Pact, so that any nation resorting to war "might be treated as an aggressor." This was in the spirit of Franklin D. Roosevelt's "quarantine address," delivered in 1937. When war began in Europe in 1939, Mr. Coudert was quick to see certain great cardinal facts. He realized that in such a struggle between democracy and totalitarianism America could not be true to its traditions or alert to its interests, and remain neutral; that the neutrality legislation would have to be drastically amended or repealed; that the United States would have to give active support to the hard-pressed nations of Western Europe, as it did in Lend-Lease; that once more the country would have to arm itself; and above all, that the truly civilized peoples of the world would have to plan for a new and if possible stronger League. These convictions are vibrantly and tellingly expressed in the group of papers here presented. As early as January, 1940, Mr. Coudert was telling the League of Nations Association that the fundamental principle for which they stood would

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yet triumph; "be of strong heart, for you have been among 'the workmen of the first hour.'' " At the end of 1943 he was assuring a radio audience that the world was fighting to decide whether a reign of law or a reign of violence should control the future of mankind. By that date the United States, all thought of neutrality and isolation forgotten, was mobilizing its energies to crush the aggressors in Europe and Asia, md the formation of the United Nations lay not far ahead.

1 The Heutrality Act of

1935:

A Victory for Isolation ADDRESS BEFORE WOMEN'S

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NATIONAL REPUBLICAN JANUARY

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CLUB

1936

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HE PRESENT WORLD SITUATION is o f so c o m p l i c a t e d a c h a r -

acter that the action of the United States in regard to the war between Italy and Ethiopia must be viewed with utmost interest. T h e question of whether the system of collective action, applied through the League of Nations, can successfully localize or terminate war is evidently undergoing its first real test. So far as the United States is concerned, the most important legal event affecting international law and international relations during the last year has been the passage of the recent neutrality legislation and the action of the Executive in consequence of such legislation. While this legislation was admittedly incomplete, tentative, and temporary, it marks a new departure in our American neutrality policy which is of utmost interest to the public generally. At the present moment, while this temporary legislation is on the verge of expiration, Congress is endeavoring to enact a definite and a permanent statute which will embody the policy of the United States for the future regarding this question of neutrality. There can be no doubt that at the present time the American people are almost unanimously in favor of adopting any legislation which may tend to prevent the United States from becoming involved in any foreign war.

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This attitude of mind has naturally resulted from the disappointment experienced during the World W a r and the appalling economic depression largely occasioned by that war. Therefore, pressure on Congress for some legislation expressing a policy designed to ward off this danger is not unnatural. The difficulties, however, are very great and the more the matter is studied in the light of history and in view of present world conditions, the more perplexing it becomes to find any definite legislative policy which may prevent the United States from being brought into a general conflict, such as happened to the little American republic in 1812 and to the great American nation in 1917. The unavoidable truth seems to be that the world of 1935 is in a very real sense far smaller and much more unified than it was a hundred or more years ago—morally, intellectually, and commercially. Modern science has made it increasingly difficult for any nation, however great, to live peacefully and prosperously while the other major nations of the world are in armed conflict upon the land and upon the High Seas. This problem is one that must peculiarly interest every American citizen at the present time, and is one that should be studied with a calm and dispassionate realization of the many factors involved. W e shall, I think, find that there is no such thing as fool-proof neutrality. It is a fundamental mistake to believe that the destiny of man is directed by his mere material needs and interests, and to eliminate from our calculations of the future those elements of sentiment and of passion, individual and collective, those dreams and those aspirations, those hopes and ambitions that have mapped the course of mankind in the past and that are equally operative for the shaping of the future. The historic position of the United States as regards neutrality, and especially its insistence upon maintaining its right to trade with both belligerents and neutrals during a

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world war, subject only to the general rules of international law as to blockade and contraband, is a matter of general knowledge. Recently there has been widespread agitation in the United States for a more complete neutrality legislation which, it was hoped, might avoid the immediate causes which had involved the United States in two former world wars. In this discussion, two schools of thought were apparent. T h e first, representing probably a large majority of the American people, insisted that legislation be enacted to prevent any trade or intercourse with any belligerent. This necessarily involved the abdication of those so-called neutral rights which had heretofore been so steadfastly maintained by the American nation. T h e other school of thought, representing probably the minority but led by men whose acquaintance through experience with and study of world conditions gave them high authority, maintained that America could in no event remain neutral and isolated in the event of a general war. They further maintained that the United States should co-operate with the other nations of the world who were signatories of the Paris Peace Pact and members of the League of Nations to prevent war or to stay its progress in the event that it broke out. Apparently influenced by this latter view, the present Administration of President Roosevelt, as well as the former Administration of President Hoover, were desirous that any new neutrality legislation should allow the Executive to embargo, in his discretion, shipments suitable for war purposes to either belligerent. Such legislation would have enabled the President to refuse to allow supplies to go to whichever belligerent the United States Government considered to be the aggressor. This policy was not favored by Congress, and, after considerable debate, on August 31, 1935, the present Neutrality A c t was passed.

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This Act, containing certain specific prohibitions, also confers upon the President the power to declare it unlawful for any citizen of the United States to travel, except at his own risk, on any vessel of a belligerent nation. In addition, the President issued a statement enumerating those articles which constitute implements of war under the statute. It will be noted that neither the language of the statute nor the specific enumeration included such raw material as copper, iron, steel, and those other materials which are indispensable for war. It is thus obvious that the temporary statute left the real difficulty still unsolved. It was regarding such materials as these that in 1812 and in 1914 to 1917 raged the controversies over United States neutrality and the so-called doctrine of the Freedom of the Seas. Mindful of these difficulties and upon the President's having proclaimed the existence of a state of war between Italy and Ethiopia, the Executive declared that he desired it to be understood that "any of our people who voluntarily engage in transactions of any character with either of the belligerents do so at their own risk." It is doubtful if the full significance of this legislation and of the action of the Administration pursuant thereto have been realized. While it was evidently a compromise measure, and while it has been stated in Congress that the matter would again be taken up at the next session of that body for the purpose of enacting a more complete law, it nevertheless indicates, both upon the part of Congress as upon that of the Executive, a completely new policy of neutrality. At the outset, let it be remarked that it is a victory for the isolationists and for those who maintain that in order to avoid entanglements in any foreign war the United States must surrender its historic position in regard to the maintenance of neutral rights. This is indicated not merely because of the Con-

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gressional prohibitions upon the export of implements of war, but more especially by the statement of the President that "Any Americans engaging in transactions of any character with either of the belligerents do so at their own risk." This can only mean that any trade with the belligerents, even though it be trade in raw material, such as oil, iron, or cotton, not expressly included in the Neutrality Act, will not be protected by the present Administration. This policy goes considerably further than the Act itself and apparently reflects the views of those who claim that in order to keep America out of war it was necessary to prevent all trade with the belligerents. It is evident that the position of the Administration is quite logical. T o embargo merely arms while insisting upon America's rights to ship to belligerents the raw material necessary for the carrying on of war would have been altogether futile. T h e difficulties experienced by the United States in the past have been mainly in the endeavor to safeguard its shipments of raw material from condemnation as contraband or for attempted blockade running. T h e position, therefore, of the isolationists seems to have triumphed both in Congress and in the Administration. In order, however, to impose this new policy definitely upon the nation, it will be necessary to add to the present neutrality law an embargo upon any and all trade with the belligerents in any material useful in war. This, under present conditions, would of course terminate all trade with any or all nations engaged in war. It should be especially noted that the difficulties existing in the past have come not so much from direct trade with the belligerents as from that trade in goods which, although going to neutral ports, were designed to reach belligerent countries. These are the controversies which international lawyers group under the head of "continuous voyages and ultimate destination." During the three years of American neu-

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trality from 1914 to 1917, they almost led to a serious rupture with Great Britain, and had it not been f o r the persistent German submarine warfare they might have completely changed the course of the war. As recently as November 15, 1935, the Secretary of State, Mr. Hull, called attention to the fact that the trade with Italy in crude oil and gasoline had greatly increased and that this increase was evidently due to the war necessities of Italy. He then made the very significant statement which follows: . . . . On October 10 I explained that the President's statement was based primarily upon the policy and purpose of keeping this country out of war, and that "it certainly was not intended to encourage transactions with the belligerents." I further explained that "our people might well realize that the universal state of business uncertainty and suspense on account of the war is seriously handicapping business between all countries, and that the sooner the war is terminated, the sooner the restoration and stabilization of business in all parts of the world, which is infinitely more important than trade with the belligerents, will be brought about. This statement is entirely in keeping with the announced policy of the President, and indicates that no protection will be given by the Government to those who trade, directly or indirectly, with either one of the belligerents. As Ethiopia possesses no seaports or facilities f o r trade, it is evident that the policy in the present case will militate wholly against the Italian nation. This, however, must not be construed as indicating any desire to side against Italy. It is merely incidental to the new policy of renouncing neutral rights and, as its advocates claim, of maintaining neutral duties. That it may result in aiding or injuring an aggressor is a mere accidental result in the application of the policy. It must not be supposed that this policy was adopted in pursuance of the Paris Peace Pact or with any fixed purpose

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of aiding in the carrying out of the sanctions imposed by the League of Nations against Italy. It is merely the inevitable consequence of a new policy, in part expressed in the Neutrality Act of 1935 and in full measure apparently adopted by the present Administration. It is difficult to reconcile this policy with the spirit of the Paris Peace Pact which evidently makes of a nation having recourse to war an outlaw. A fear has been felt ever since the going into effect of the Covenant of the League of Nations that the application of sanctions, should they lead to such severe measures as blockade, might be paralyzed by the action of the United States in insisting upon the maintenance of its traditional neutral rights. This fear was recently expressed by the Prime Minister of Great Britain, Mr. Stanley Baldwin, who stated that he would be unwilling to favor any blockade measures which might bring Great Britain into conflict with the policy of the United States as to the freedom of the seas. T o the extent, therefore, that the Government of the United States will refuse to sanction or to protect any trade, direct or indirect, with the belligerent nations, this attitude may render the task of the League of Nations in enforcing its own penalties, whether by blockade or otherwise, much easier. T o this extent it may be said that the indirect result of the new policy of the United States will be to favor the workings of the collective system of penalties against the aggressor. It is, therefore, quite understandable that on September 13, 1935, Secretary of State, Mr. Hull, should have made a statement to the press which reads in part as follows: The Pact of Paris is no less binding now than when it was entered into by the sixty-three nations that are parties to it. By form and designation it constitutes a treaty by and among those nations. It is a declaration by the governments of the world that

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they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations with one another. Furthermore, it is an agreement and a solemn obligation that the settlement or solution of all disputes or conflicts among nations, of whatever nature or of whatever origin, shall never be sought except by pacific means. The United States and the other nations are interested in the maintenance of the Pact and the sanctity of the international commitments assumed thereby for the promotion and maintenance of peace among the nations of the world. A t the present moment it will be noted that legislation and the proposals now before Congress f o r a permanent neutrality legislation, sponsored by the present Administration, indicate a wholly new policy, to wit, the complete abandonment of all insistence upon the maintenance of neutral rights, and the disapproval, either by direct legislation or by withdrawal of all protection, of any commerce with belligerent nations, direct or indirect. This policy is designed to withdraw the nation from all trade contacts with warring nations, and it is thought b y so doing the United States may be kept out of war. It is also intended to prevent conflict with those belligerent measures of blockade and contraband which have in the past brought America into collision with nations, such as Great Britain, France, and recently Germany when carrying on belligerent operations on the High Seas. It is impossible to state whether this policy will prove to be a final expression of American opinion and whether, in the event that hostilities should spread to the Great Powers of the world, it could be maintained as against the interests of powerful American groups which profit b y the sale of raw material and against the large number of individuals and organizations who consider that justice demands that America should range itself against the aggressor and the violator of the Paris Peace Pact.

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A t the present time, it would appear that the isolationist's view has prevailed. However, it has not been sufficiently tested so that we can know whether the American people will definitely ratify it. In the event that great major interests such as producers of cotton, oil, and minerals should be affected, there may be a revulsion in favor of the traditional policy of the United States of insistence upon "neutral rights" and " T h e Freedom of the Seas." Moreover, there may be a sentimental reaction against the withdrawal of the United States, a nation of one hundred and twenty million people, within its own borders and the complete surrender of what many citizens may believe to be its dignity, as well as its duty. In any event, opinion on all these questions is divided in the United States, as is probably inevitable in any great democracy where complete freedom of speech prevails and where no invader is knocking at the door. It is thus impossible to obtain anything like unanimity of opinion. During the next session of Congress these problems will be very fully debated and doubtless any Congressional action will be influenced by the course of events consequent upon the present controversy between Italy and the League of Nations. It is impossible to say what effect these future events m a y have. T h e r e is a powerful segment of opinion insistent that the United States cannot avoid taking a position and fulfilling certain duties when world war threatens, and that the new policy of neutrality must fail when put to the test. It is certain that the last word has not been said and that we may expect interesting developments along this line in the very near future. T h e neutrality problem of the United States is almost wholly one which involves the ancient doctrine of " T h e Freedom of the Seas." T h e present tendency of opinion to shut off all trade, direct or indirect, with belligerent nations

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and to surrender the High Seas completely to those who wish to fight and who are unable or unwilling to use the machinery of peace for compromising their difficulties appears to involve the surrender of the High Seas to those who wish, in contravention of solemn treaties, to carry on belligerent operations. Theoretically, it might be possible for the people of this great land to live wholly within their own borders and to adapt themselves to conditions which would destroy their external commerce and all the material welfare consequent thereon. In order to do this, it would be necessary for public opinion to remain indifferent to the issues involved in a general war and immune to those passionate sentiments and impulses that such a world catastrophe might involve. Assuming that the United States could sentimentally adopt this robot attitude and accept the sacrifice of the interests of all those who deal in raw material and manufactured goods going over the seas, it might be possible to remain immune from world conflict. Under present conditions of a free press and radio, and with our diversified population, such an attitude would appear to me so improbable as to be almost unthinkable. Any legislation passed upon any such assumption would be affected from the beginning with a very complete unreality, and the prospect of its really working may be held to be almost negligible, although it might tend to lull the nation to a sense of false security which could cost us dearly in time of crisis. Without, however, expecting to effect the impossible or to present legislation to control future action and emotion, we might, I think, enact a statute which would, 1. Embargo the export of arms and implements of war, as does the present emergency measure, and Provide that all commerce in contraband material, that

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is material essential to the conduct of war, should be at the risk of the shipper. We might also adopt a policy endeavoring to co-operate more completely with the nations of the world for the implementing of the Paris Peace Pact, so that any nation seeking redress "by other than pacific means" might be treated as an aggressor, and as such deprived of all benefits from commercial intercourse with the other nations. A policy so outlined will not guarantee certain peace, but it will, at least, not allure us into a false security—the assumption that this nation can live and prosper regardless of what is happening in the rest of the world—and it would at least embody an effort to bring about through collective action some regard for international law and treaty obligations, without the observance of which no continued peace is possible.

2

World Organization for Peace Still Essential ADDRESS B E F O R E T H E LEAGUE OF NATIONS ASSOCIATION JANUARY

29,

1940

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is no more melancholy satisfaction than that of saying, " I told you so." This organization throughout the years since the war has insisted that the world could go in but one of two directions, either collective security or general chaos. For that reason we endeavored to the uttermost to educate American opinion to the necessity for sustaining the work of the League of Nations. W e could not but foresee that, if that were to fail and ultra-nationalism given full reign, we were again headed for a world war. For a time the League appeared successful. Upon various occasions when smaller nations were upon the verge of war, the League processes of conciliation and understanding were successful in avoiding the outbreak of hostilities. It became evident, however, when the Japanese took over Manchuria, that the great powers would not use force to sustain League action when one or more of the other great powers was involved. When this became evident the use of the League in maintaining world peace became for the time being impossible, and the world began to tread the road that leads to general chaos and a breakdown of our modern civilization. HERE

Does this mean that collective action is impossible and that chaos must be permanent and irremediable? Is it possible that in the event of victory by the aggressive and systematic

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violence of the Russian and German policy a universal State or Empire based upon force will bring about a semblance of peace, even though one without liberty and free institutions? Can Hitler and Stalin succeed in bringing about what the great Napoleon hoped for but failed to achieve under even more favorable conditions? N o , the universal State based upon force will not supplant a world of free nations and would be little if any improvement over the chaos of today. If nationalism and the rights of small nations defeated Napoleon, so it must save Europe at least from a brutal imperialism recognizing only force; yet national sovereignty —unfettered and irresponsible—brought about the Great W a r in 1914. In 1918 the League was created to deal with the situation brought about by that ultra-nationalism which recognized no higher law. T h e League for the moment failed to maintain peace because, while it could curb the little nations when acting alone, it could do nothing when the great powers did not agree or used the quarrels of the smaller for their own sinister purposes. The League fiction of the equality of States was like the fiction as to the equality of man—a fine theory, a noble ideal, but unfit to produce the solution of practical problems. The great nations will not substitute law for force unless the preponderance of opinion in those nations so wills. All claim to desire peace, but while some are satisfied with the present distribution of wealth, power, and territory, others are dissatisfied and seek to win their ends through forceful domination of smaller nations. N o nation really desires chaos, but the conflict of desires brings chaos. Must this situation remain permanent? Is there no w a y out? Must the great national States continue their conflict, either actual or continually threatened, so that our present civilization ceases to develop? Yes, that situation will remain as long as the conflict of desires between peace and

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predatory purpose remains in great nations like Germany and Russia. If we can place no fetters upon national sovereignty, anything like stable pcace is impossible. T h e old maxim that the King can do no wrong has been transferred to the modern State. T h a t State when completely militarized becomes a danger to the world. W e must admit, first, the failure of the doctrine of national sovereignty. W e then must admit that it cannot be replaced by an imperialism based upon force and subjugated nations. W e are thus confronted with the stark necessity of federalism if we are not to g o backward in the direction of the cave man. Only under such a limitation of national sovereignty can the smaller states exist and can chaos on the one hand or imperialism on the other be avoided. T o have created a beginning of such a regime in the League of Nations was in itself a high achievement. At least a landmark in history has been reached. T r u e , " i t has not succeeded in accomplishing what we had hoped, but let us not forget that it could be only a beginning. Man's progress from barbarism has required countless generations. It is much that one generation at least has been given to understand the necessity for federation. T h e League idea, whatever may be the defects in detail of the actual organization, must be and is eternal. It will require higher courage than ever of the present generation and of those to come if we are to achieve the desired end of a federal system among the great powers. A system which, while guaranteeing to each economic opportunity and legal freedom, will also protect the weak against the strong. This present war may firmly demonstrate that there is no other road that man can tread if he wishes to survive as a rational creature on this earth, developing the possibilities with which nature has endowed it. It is for this reason that I say to you, be of strong heart for you here have «•

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all been among "the workmen of the first hour."

3 Should the T^eutrality Law Be Amended? ADDRESS BEFORE THE SECTION OF INTERNATIONAL AND COMPARATIVE L A W OF T H E AMERICAN BAR ASSOCIATION SEPTEMBER

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so FREQUENTLY HAPPENS, the subject that we are discussing today is one far more of policy than of law. International law is so completely a by-product of international relations that the two cannot be discussed apart. I am tempted to think that in the long run one's opinions on this and kindred questions are determined by one's views as to national and international policy. These views may differ so widely, ranging from that of complete so-called "Isolationism" or "Going it Alone for America" to international world federation, that opinions vary in wide diversity. Let me say at the outset that I am and always have been opposed to our so-called "Neutrality Legislation," which is in effect an attempt to legislate American policy in the presence of not only a European but a world-wide conflict. T h e policy that dictated it was the emotional state of public opinion which dreaded war. Of course, let me say here, no sane man, and least of all a lawyer, can wish for or believe in war, other than if it be necessary in defense of his country, his liberty, and his most sacred institutions. The difference of view between us is predicated upon the question of what is the best method for averting this terrific scourge. At the time the Neutrality Laws were passed it was believed that not only strict neutrality as heretofore defined

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by general international agreement but a kind of ultra neutrality, in which we should de facto surrender our rights upon the High Seas, would prove necessary as a still more effectual safeguard against involvement in general war. The experience of the last four years, since the enactment of our first neutrality statutes induced by this belief, has seemed to me to demonstrate pretty effectively the erroneous nature of any such hope. Norway, Belgium, Holland and Denmark—small but independent countries—cherished the same belief. They practiced the strictest neutrality. When Belgium was attacked half of its army was on the French frontier where it had been sent to prove to Adolf Hitler and his friends the very real neutrality of Belgium. A great nation under a government believing that war is its cardinal instrument of public policy will not be deterred by any neutrality policy in other nations from effecting its objective. The question in the light of all this is whether our policy was wise. Has it worked? Will it keep us out of war, and if so for how long? We have but to look at the daily newspaper. We are making the most gigantic preparation for war that this nation or almost any other nation has as yet seen. We are overwhelmingly unneutral in thought. W e have not hesitated to give to Hitler's Germany far greater provocation than any other neutral would have dared to give. Have we relied at all upon our own neutrality legislation to keep us out of war? Not in the slightest degree. Why? Because we know that our laws will not protect us and that we must rely wholly upon our own preponderance of force if this hemisphere is to be kept free of the scourge of war. The instinct of the people has been far wiser than the Byzantine reasoning of those publicists who believed that our neutrality legislation could possibly keep us immune from the hideous aggression which with calculated scientific system was turning Europe and now Asia and Africa into a charnel-house.

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Forgetting national dignity in an ardor for peace, which is in itself praiseworthy, we surrendered the freedom of the seas upon which we had insisted since the time when America was a little nation with three or four million people. In so doing we surrendered national rights, and in my opinion a good deal of national dignity, for less than a mess of pottage. Not only that, we encouraged the aggressors. T h e fact that the greatest neutral was the first to capitulate before the threat of war and the philosophy of organized and scientific savagery led to the surrender of neutral rights by all the lesser nations. T h e action of America thus encouraged aggression and turned the High Seas over as a playground exclusively for belligerents. N o great nation can hope to survive which surrenders before the military threats and might of nations not afraid to fight. What is the status of our neutrality legislation at the present time? It stands in ridiculous contrast to what we are actually doing. T o exclude our ships from the High Seas, to insist upon the payment of cash for belligerent purchases and the other limitations upon our national rights, is a little absurd in view of the fact that we are now taking definite and positive steps to defend one of the principal belligerents— Canada. Not only that. W e have obtained cessions of leases for military posts which can only be useful in the event that Great Britain is beaten. W e have given in exchange a part of our navy, and we have promised every aid in our power, qualified by the ambiguous term "Short of war." I am not disapproving of this policy. I approve it as necessary to the safety of America and the only policy in any way calculated to save us from actual war. I am merely calling attention to its utter inconsistency with our actual neutrality legislation. Can we be said in any way to be neutral when we are arranging to co-operate in the defense of one of the belligerents? Whether our attitude can be termed a state of

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war or not I do not propose here to discuss. This might turn upon certain subtle distinctions as to what constitute acts of war. I do say that it is in flagrant conflict with the whole spirit of our neutrality legislation, which was predicated upon a renunciation of those national rights which might possibly cause resentment in the aggressor nations. W i t h the encouragement of the government, billions of dollars' worth of war material are being sent to England and to Canada. That material is being paid for in cash because our neutrality legislation demands it. Can any sane man believe that if the cash gave out and England needed credit in this hour when she alone is stopping an insanely aggressive Germany we should refuse to modify this legislation? Is it possible that we will help all we can with the right hand while we will hinder with the left? T h e answer may be " Y e s " momentarily, but when England can buy no more planes to repel the great air invasion, and Canada has insufficient rifles for the fine soldiers that she sends abroad, does anyone really believe that all this will be stopped because the United States, which is spending billions of dollars to defend itself against Britain's chief enemy, will not allow its nationals to extend any credit? Of course not. Having gone so far, we must continue. America believes her vital interest lies in preserving the British fleet and Empire. Since the time of Canning and Monroe, America together with the sea power of Great Britain has maintained the integrity of this continent and its freedom from foreign war. Jefferson understood and pointed out to Monroe that his message could safely be delivered because of the acquiescence of Great Britain in the American policy. It is so obvious as to seem axiomatic that if Britain is saved we need not fear the intrusion of alien systems in South America. With Britain destroyed, our navy for the next

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five years would be inferior in strength to the sea power of the aggressors both in the Pacific and in the Atlantic. Our policy and vital interests in both of these oceans might thus be at the mercy of the conquering aggressors. Is it possible to suppose that we will take this risk in order to comply with a policy embedded in our statutes at a time when the public did not foresee the situation that has now arisen? The experiment of renouncing rights and shutting ourselves up in our own borders, "Living like Lotus Eaters on the hills, careless of mankind," has been one of the great legislative failures in our history. It will, to my mind, rank with the prohibition laws as something placed in the statute books by well-meaning people who did not grasp the great human elements in a situation. These laws must go into the limbo of deserved oblivion. Born of fear of war, they have encouraged war. Strictly observed in their spirit, they would make us defenseless against aggression. In the cause of continued peace and of national security, they should be repealed and forgotten.

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A Stand against Aggression Required to Vindicate International Law FROM T H E A M E R I C A N J O U R N A L OF INTERNATIONAL JULY

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HE American Society of International Law celebrated last week its thirty-fifth anniversary. It can, therefore, scarce claim the prestige of an ancient and time-honored institution. Notwithstanding this fact, however, in the thirtyfive years of its existence the international law which it was founded to promote, to expound and to develop, has had an extraordinarily dramatic existence. Let us look at some of the high lights on this law during its historic years from 1907 to the present time. Perhaps as a charter member, despite a memory none too good, I may be pardoned for running over the history of those years. Our first period was one of enthusiasm for the settlement of international controversy by arbitration. The great success of the Bering Sea arbitration, the Venezuelan controversy, and the Fisheries arbitration had lifted that method of solution into the front rank. It was permitted us to believe, especially since the second Hague Conference establishing an International Arbitration Tribunal, that the future of arbitration was a rosy one, indeed, and that the lawyer might in great measure, if not completely, supersede the soldier • This article originally appeared under the title "International L a w and American Policy During the Last Thirty-five Years."

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in the settlement of disputes between nations. Arbitration appeared a fruitful policy and was ardently advocated b y the first and great president of the Society, Elihu Root. It was the subject chosen in 1911 for an address before this association b y the then President of the United States and future Chief Justice, William H o w a r d T a f t . It was therefore a good deal of a jolt to most of us lawyers when the proposed general arbitration treaties with France and with G r e a t Britain were turned d o w n b y the Senate of the United States, or at least so amended that the President refused to resubmit them. A n incident of that time was the riot at Carnegie Hall when a great meeting over which Mr. Choate, the Dean of the American Bar, presided, was broken up b y violence instigated b y organized ruffians apparently hostile to Great Britain. It was at this period that Admiral Mahan, master historian of the role of sea power, expressed the opinion that general arbitration treaties were dangerous in view of the fact that w e were probably destined to have w a r with G e r m a n y and Japan. I think, however, that w e might rather easily have recovered our complacency and faith in the future of arbitration had not the year 1914 brought the W o r l d W a r with its consequent shattering of illusions and death to so many pious endeavors for universal peace through arbitral adjustment. T h e great war period left little for the international l a w y e r save discussion of the laws of war, especially maritime w a r with all its difficulties and complexity. T h e legal mind was able to revel in subtle distinctions concerning continuous voyage and ultimate destination. T h e legal duels between our State Department lawyers and the legal advisers of the Foreign Office over these many intricate questions furnish an arsenal to any lawyer interested in any phase of such matters. Finally, the activities of the submarine, dealing death wherever its periscope appeared above the calm surface of

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the broad ocean, precipitated America's entry into the war and for the moment terminated the lawyers' controversies. These controversies after the war were not submitted to arbitration and remain as open today as they were then. When the diplomats assembled at Versailles for the postwar discussions the lawyers could then honestly believe and rejoice in the belief that a method was found by which law could be substituted for force among the nations. The creation of the League, despite all the controversy to which it gave rise, caused widespread hope that war would be minimized, and with the founding of the World Court many lawyers felt that again international law had come into its own and that its life was to be more vigorous and productive than ever before. The movement to codify international law so that it might become more definite and certain took considerable extension; a special committee of the League was created for that purpose. Many of us believed that a collective system for the prevention of war would supersede the old law of neutrality, and controversies, learned and sometimes rather bitter, ensued between those who believed in the new dispensation and those who still thought resort to the ancient rules of neutrality the best preservative of peace. The Harvard Research in International Law, a body of capable professors and lawyers interested in that study, did a great work toward the standardization or in fact codification of many of the branches of international law. This work was intended, among other things, to aid in the work undertaken by the League of Nations committee for the development and codification of international law through treaties and mutual understanding. It is interesting to note that when it came to the code for rights and duties of neutral states in naval and aerial wars, two draft conventions were prepared. One was on the rights

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and duties of neutral states as they appeared to be at the present time, as derived from the applicable precedents. Simultaneously, however, with this interesting and valuable draft, it was thought wise to prepare another draft pertaining to the rights and duties of states in case of aggression. This other draft represented the newer phase of international law derived not only from the fact that the League of Nations had been organized and the Permanent Court of Justice created but by reason of various treaties containing provisions against resort to war. In all some seventy-nine states had accepted such obligations, but of all these treaties the most important was the so-called Pact of Paris for the "Renunciation of W a r as an Instrument of National Policy," and this important and novel pact was signed by sixty-three nations, including Germany, Italy and Japan. It was, therefore, natural to draw a line of distinction between the character of the parties at war and to differentiate between a treaty violator and one who was resisting aggression. This new view of international law has indeed some resemblance to the ideas of Grotius and the early international law writers who differentiated between just and unjust wars. It is a distinction certainly founded upon respect for moral principles and for the plighted national word. It was decried by those who believed man was incorrigible and that his inheritance of original sin precluded him from pursuing his ends continuously through pacific means. It is significant that these two drafts were thus presented to the world by an American body of lawyers. It emphasizes the fact of the difference of opinion which then existed as to the future of international law. I am frank to state that at the time when this admirable draft was presented by the learned reporter, Professor Philip Jessup, many of us felt that its base was theoretical rather than actual and that it would

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be many years, perhaps some generations, not only before it was adopted by the nations but even before it was accepted b y the United States of America as the legal basis for its foreign policy. T h e other tendency was strongly manifested in the new legislation beginning with the A c t of Congress of 1935, the so-called Neutrality Legislation. T h e underlying thought was that war often grew out of conflicts over rules relating to the rights and duties of neutrals. T h e United States had upon two occasions (1812 and 1914) fought for the freedom of the seas. Therefore it was urged that we should abandon, at least in all practical effect, our national neutrality rights and surrender the seas to those w h o wished to carry on their belligerent operations. W e were thus attempting to inaugurate a kind of "fool-proof neutrality" which might keep us safe, happy and prosperous, even though the rest of the world in defiance of all law and morality was agonizing in the throes of general war. Much of this legislation stands upon our books today and great hope was entertained that although w e had surrendered, in practice at least, national rights and had probably lost national dignity, w e might escape from the perils of the impending new world war. It was, therefore, in this state of incoherent and divided public opinion in America that the war arose when Germany invaded Poland. T h e partisans of ultra-neutrality had been triumphant. T h e international laws concerning war had been confined in a strait jacket. Many of us did think that this system, born as it were in the abdication of national dignity and in fear of war carried to the limits of national cowardice, would be a failure. That it became a failure was evident when the people of the United States demanded that the embargo on arms and munitions be repealed so that the hard hit and embattled democracies, unprepared for war, might

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