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Published May, 1914 


EVERY President of the United States 
can be quoted in favor of peace. From 
the first great Virginian to the last all 
have abhorred what Thomas Jefferson 
called "the greatest scourge of man- 

No President, however, has espoused 
the cause more unreservedly, has grasped 
its fundamental principles more thor- 
oughly or attempted to advance its prog- 
ress more directly than has Mr. Taft. 
This book is a demonstration of the fact. 

Mr. Taft has occupied the greatest po- 
litical office in the world. He has pre- 
sided over a confederation of nearly half 
a hundred sovereign States the greatest 
peace society known to history and a liv- 
ing example to the nations of the earth of 

[ v ] 


the way to obtain peace through political 
organization. Peace is the outcome of 
justice, justice of law, law of political or- 
ganization. Emanuel Kant proclaimed 
this as the true philosophy of peace, when 
in 1795 he wrote: We never can have 
universal peace until the world is polit- 
ically organized, and it will never be pos- 
sible to organize the world politically until 
the people, not the kings, rule. 

Peace hath her victories no less re- 
nowned than war. Perhaps the greatest 
victory yet achieved is the declaration 
of Mr. Taft, as President of the United 
States, that he was willing to refer all ques- 
tions, even those involving national honor, 
to arbitration. He attempted to negotiate 
treaties to this end with Great Britain and 
France. His hope was that the example 
thus afforded would be followed by other 
nations, until a general treaty could be 
formulated in which the peoples of the 

earth would agree to refer all their dis- 

[ vi] 


putes to a court of arbitral justice. This 
would be the doom of war. 

The attempt, though thwarted by the 
United States Senate, offers the nations a 
guiding principle which they will support 
with an ever-increasing favor and fervor 
until it is made a universal law. Mr. 
Taft's high statesmanship has inaugurat- 
ed a movement that will not end until, 
as Victor Hugo prophesied, "the only 
battle-field will be the market opening 
to commerce and the mind opening to 
new ideas." 

The present volume is the outcome of a 
suggestion made to Mr. Taft by the New 
York Peace Society, which has started so 
many good movements to further inter- 
national progress and comity. Its four 
chapters were delivered last winter as lec- 
tures under the auspices of the Society. 
They were also published as contributions 
to The Independent. A special impor- 
tance attaches to them in the fact that 



they were prepared by one who has been a 
supreme and responsible leader in na- 
tional and international politics. Thus 
the age-long dreams of the poets, proph- 
ets and philosophers have at last entered 
the realm of practical statesmanship. 

The first chapter deals with the Monroe 
Doctrine. This constitutes altogether the 
most important foreign policy of the 
United States. The second chapter dis- 
cusses the status of aliens under the con- 
flicting jurisdiction of the Federal and 
State Governments. This involves our 
chief danger of war. The third chapter 
completely refutes the claim of the Sen- 
ate that it has no power to consent to 
general arbitration treaties. This, if per- 
sisted in, will block all further participa- 
tion of the United States in the movement 
for extending the scope of arbitration. 
The fourth chapter elucidates the history 
and conception of a world federation in 
which is emphasized a court of judicial ar- 

[ viii ] 


bitration with jurisdiction of all disputes 
"the highest court of appeals this side 
the bar of Eternal Justice." Its realiza- 
tion is only a matter of decades. 

The one way for a man to rise above the 
presidency of the United States is to as- 
cend into the international realm and 
there work for peace through justice. Mr. 
Taft has taken this upward step. This 
book is a Declaration of Interdependence. 













IT is now ninety years since what the 
world has always called the Monroe Doc- 
trine was announced by President Mon- 
roe in a message to Congress. It was a 
declaration to the world that any effort 
on the part of an European government 
to force its political system upon a people 
of this hemisphere, or to oppress it, would 
affect the safety of the United States and 
would be inimical to her interests, and, 
further, that the subjecting to coloniza- 
tion by any European government of any 
part of the two American continents, all 

[ 1] 


of which was held to be within the lawful 
jurisdiction of some government, would 
be equally objectionable. The first part 
of the declaration was prompted by the 
fear that the then Holy Alliance of Rus- 
sia, Prussia, Austria, and France would 
attempt to assist Spain in reconquering 
the Central and South American repub- 
lics that had revolted from Spain and set 
up independent governments which had 
been recognized by the United States. 
The other part, against colonization, wa9 
prompted by certain claims that Russia 
was making to control over territory on 
the northwest coast of North America to 
which the United States then asserted 
title. There was expressly excepted from 
the doctrine thus announced any pur- 
pose to interfere with Spain's effort to 
regain her lost colonies or the continued 
exercise of jurisdiction by European gov- 
ernments over any colonies or territories 
which they then had in America. 



I have not space to give the details of 
the instances in which our Presidents, 
representing our country in its foreign 
relations, found it necessary to insist 
upon compliance with the Monroe Doc- 
trine. When Mr. Webster was secretary 
of state, he declined, in Mr. Tyler's name, 
to consider a proposition by England and 
France for a joint agreement with Spain 
as to the disposition of Cuba, stating that, 
while the United States did not intend 
to interfere with the control of Cuba by 
Spain, it could not consent to the owner- 
ship of the island by any other power. 
Again, when Yucatan had been tempo- 
rarily separated from Mexico by insurrec- 
tion, and the insurrecto leaders sought 
to dispose of the country to us, or to 
England, or to Spain, President Polk, in 
declining their offer to the United States, 
advised them that we could not consent 
to a transfer of dominion and sovereignty 
either to Spain, Great Britain, or any 



other power, because "dangerous to our 
peace and safety." 

Without directly citing the Monroe 
Doctrine by name, Mr. Seward protested 
against the occupation of Mexico by 
France during the Civil War with the 
purpose of colonizing or setting up a new 
government on the ruins of the Mexican 
Government. France denied having any 
other purpose than to collect its debts 
and redress its wrongs. Afterward the 
Mexican Government was overthrown 
and an empire established with an Aus- 
trian archduke at its head. The Ameri- 
can Civil War closed, the American troops 
were massed on the Mexican, border under 
Sheridan, and France was requested to 
withdraw her troops. She did so, and 
the collapse of the Maximilian govern- 
ment followed. 

President Grant, in sending the Santo 
Domingo treaty to the Senate, announced 
that thereafter no territory on the conti- 

[4 ] 


nent should be regarded as subject to 
transfer to an European power, and that 
this was an adherence to the Monroe 
Doctrine as a measure of national pro- 

Again, the policy was insisted upon 
and maintained by Mr. Olney and Mr. 
Cleveland in reference to England's dec- 
lination to arbitrate the boundary issue 
between Venezuela and British Guiana, 
in which Mr. Cleveland and Mr. Olney 
believed that they saw a desire on the 
part of Great Britain, through a boundary 
dispute, to sequester a considerable part 
of Venezuela, valuable because of the 
discovery of gold-mines in it. Mr. Cleve- 
land's position in the matter was sus- 
tained by a resolution which was passed 
by both houses. In this instance Mr. 
Olney used the expression: 

To-day the United States is practically 
sovereign on this continent, and its fiat is 
law upon the subjects to which it confines 
its interposition. 



The original declaration of the Monroe 
Doctrine was prompted by England's 
wish, when Canning was foreign minister, 
that England and the United States 
should make a joint declaration of such 
a policy. Since its announcement by 
President Monroe there have been fre- 
quent intimations by English statesmen 
while in office that they do not object to 
its maintenance. Whether the other gov- 
ernments of Europe have acquiesced in 
it or not, it is certain that none of them 
have insisted upon violating it when the 
matter was called to their attention by 
the United States. Every one admits 
that its maintenance until recently has 
made for the peace of the world, has kept 
European governments from intermed- 
dling in the politics of this hemisphere, 
and has enabled all the various Latin- 
American republics that were offshoots 
from Spain to maintain their own govern- 
ments and their independence. While it 



may be truly said that it has not made 
for peace between them, still, that was 
not within the scope of its purpose. It 
has, however, restrained the land-hun- 
ger and the growing disposition for colo- 
nization by some European governments 
which otherwise would certainly have 
carried them into this hemisphere. The 
very revolutions and instabilities of many 
of the Latin-American republics would 
have offered frequent excuse and op- 
portunity for intervention by European 
governments which they would have 
promptly improved. 

But now we are told that under changed 
conditions the Monroe Doctrine has be- 
come an obsolete shibboleth, that it pro- 
motes friction with our Latin-American 
neighbors, and that it is time for us 
to abandon it. It is said that it is an 
assertion of a suzerainty by the United 
States over both continents; that it seeks 
to keep under the tutelage of the United 



States great and powerful nations like 
the Argentine Republic, Brazil, and Chile; 
that its continuance as a declared policy 
of this government alienates these and 
other republics of South America, injures 
their proper national pride, creates a re- 
sentment against us which interferes 
with our trade relations, and does not 
promote the friendly feeling that strength- 
ens the cause of peace. 

Before we proceed to consider this 
proposition we ought to make clear cer- 
tain definite limitations of the Monroe 
policy that are not always given weight 
by those who condemn it. In the first 
place, the Monroe Doctrine is a policy 
of the United States and is not an obli- 
gation of international law binding upon 
any of the countries affected, either the 
European countries whose action it seeks 
to limit or the countries whose govern- 
ment and territory it seeks to protect. 
Nor, indeed, does it create an absolute 



obligation on the part of the United 
States to enforce it. It rests primarily 
upon the danger to the interest and safety 
of the United States, and, therefore, the 
nearer to her boundaries the attempted 
violation of the doctrine, the more di- 
rectly her safety is affected and the more 
acute her interest, and, naturally, there- 
fore, the more extreme will be the mea- 
sures to which she would resort to enforce 
it. While the assertion of the doctrine 
covers both continents, the measures of 
the United States in objecting to an in- 
vasion of the policy might be much less 
emphatic in the case where it was at- 
tempted in countries as remote as Ar- 
gentina, Brazil, and Chile than in the 
countries surrounding the Caribbean Sea, 
or brought close to the United States by 
the opening of the Panama Canal. It is 
well that the declared policy has in the 
past covered both continents, because this 
certainly contributed to the causes which 



made Argentina, Brazil, and Chile the 
powerful countries they have become. 
But, as Daniel Webster said in Congress 
in 1826, speaking of the plans of the Holy 
Alliance : 

If an armament had been furnished by the 
allies to act against provinces the most re- 
mote from us, as Chile or Buenos Ayres, the 
distance of the scene of action diminishing 
our apprehension of danger, and diminishing 
also our means of effectual interposition, 
might still have left us to content ourselves 
with remonstrance. But a very different 
case would have arisen if an army equipped 
and maintained by these powers had been 
landed on the shores of the Gulf of Mexico 
and commenced the war in our own imme- 
diate neighborhood. Such an event might 
justly be regarded as dangerous to ourselves, 
and on that ground call for decided and im- 
mediate interference by us. 

In other words, the extent of our inter- 
vention to enforce the policy is a matter 
of our own judgment, with a notice that 
it may cover all America. It therefore 
follows that the Monroe Doctrine, so far 



as it applies to Argentina, Brazil, and 
Chile, the so-called ABC governments 
of South America, is now never likely to 
be pressed, first because they have reached 
such a point that they are able to pro- 
tect themselves against any European 
interference, and, second, because they 
are so remote from us that a violation of 
the doctrine with respect to them would 
be little harmful to our interests and 

The second great limitation of the 
Monroe Doctrine is that it does not con- 
template any interference on our part 
with the right of an European govern- 
ment to declare and make war upon any 
American government, or to pursue such 
course in the vindication of its national 
rights as would be a proper method under 
the rules of international law. This was 
expressly declared to be a proper term 
in the statement of the Doctrine by Mr. 
Seward during our Civil War, when Spain 

[ 11 ] 


made war against Chile. He announced 
our intention to observe neutrality be- 
tween the two nations, and he laid down 
the proposition that the Doctrine did not 
require the United States, in a consistent 
pursuit of it, to protect any government 
in this hemisphere, either by a defensive 
alliance against the attacking European 
power or by interfering to prevent such 
punishment as it might inflict, provided 
only that in the end the conquering 
power did not force its own government 
upon the conquered people, or compel 
a permanent transfer to it of their ter- 
ritory, or resort to any other unjustly 
oppressive measures against them. And 
Mr. Roosevelt, in his communications to 
Congress, has again and again asserted 
that maintenance of the Doctrine does 
not require our government to object to 
armed measures on the part of European 
governments to collect their debts and 
the debts of their nationals against gov- 

[ 12] 


ernments in this continent that are in 
default of their just obligations, provided 
only that they do not attempt to satisfy 
those obligations by taking over to them- 
selves ownership and possession of the 
territory of the debtor governments or by 
other oppressive measures. It may be 
conceded that Mr. Olney used language 
that was unfortunate in describing the ef- 
fect of the Monroe Doctrine upon the 
position of the United States in this hemi- 
sphere. It is not remarkable that it has 
been construed to be the claim of suze- 
rainty over the territory of the two Amer- 
ican continents. Our fiat is not law to 
control the domestic concerns or, indeed, 
the foreign policies of the Latin-American 
republics or of other American govern- 
ments, nor do we exercise substantial sov- 
ereignty over them. We are concerned 
that their governments shall not be inter- 
fered with by European governments; we 
are concerned that this hemisphere shall 

[ 13] 


not be a field for land aggrandizement and 
the chase for increased political power by 
European governments, such as we have 
witnessed in Africa and in China and Man- 
churia, and we believe that such a condi- 
tion would be inimical to our safety and 
interests. More than this, where a con- 
troversy between an European govern- 
ment and a Latin-American republic is of 
such a character that it is likely to lead to 
war, we feel that our earnest desire to 
escape the possible result against which the 
Monroe Doctrine is aimed is sufficient to 
justify our mediating between the Euro- 
pean power and the Latin-American re- 
public, and bringing about by negotiation, 
if possible, a peaceable settlement of the 
difference. This is what Mr. Roosevelt 
did in Venezuela and in Santo Domingo. 
It was not that the use of force or threat- 
ened force to collect their debts by the 
European powers constituted a violation 
of the Monroe Doctrine that induced Mr. 

[ 14] 


Roosevelt to act, but only a general de- 
sire to promote peace and also a wish to 
avoid circumstances in which an inva- 
sion of the Monroe Doctrine might easily 

It is said and this is what frightens 
peace advocates from the Monroe Doc- 
trine that it rests on force and ulti- 
mately on the strength of our army and 
our navy. That is true, if its enforce- 
ment is resisted. Its ultimate sanction 
and vindication are in our ability to 
maintain it; but our constant upholding 
and assertion of the Doctrine have en- 
abled us, with the conflicting interests of 
European powers the support of some 
and the acquiescence of others to give 
effect to the Doctrine for now nearly a 
century, and that without the firing of 
a single shot. This has secured the Doc- 
trine a traditional weight that assertion 
of a new policy by the United States 
never could have. It is a national asset, 

[ 15] 


and, indeed, an asset of the highest value 
for those who would promote the peace 
of the world. The mere fact that the fur- 
ther successful maintenance of the Mon- 
roe Doctrine, in the improbable event 
that any European power shall deliber- 
ately violate it, will require the exercise 
of force upon our part is certainly not a 
reason for the most sincere advocate of 
peace to insist upon sacrificing its benefi- 
cent influence and prestige as an instru- 
ment of peace to prevent European inter- 
meddling in this hemisphere which a 
century of successful insistence without 
actual use of force has given it. 

Much as the Doctrine may be criti- 
cised by the Continental press of Europe, 
it is an institution of one hundred years' 
standing; it is something that its age is 
bound to make Europe respect. It was 
advanced at a time when we were but 
a small nation with little power, and it 
has acquired additional force and pres- 

[ 16] 


tige as we have grown to our present size 
and strength and international influence. 

Were we to abandon the Doctrine and 
thus, in effect, notify the European gov- 
ernments that, so far as our remonstrance 
or interposition was concerned, they 
might take possession of Santo Domingo, 
of Haiti, or of any of the Central Ameri- 
can republics, or of any South American 
republics that might be disturbed by rev- 
olution and that might give them some 
international excuse for intervention, it 
would be but a very short time before 
we would be forced into controversies 
that would be much more dangerous to 
the peace of this hemisphere than our 
continued assertion of the Doctrine prop- 
erly understood and limited. 

I fully sympathize with the desire to 
make such countries as the Argentine 
Republic, Brazil, Chile, and other pow- 
ers in South America that are acquiring 
stability and maintaining law and order 

[ 17] 


within their boundaries, understand that 
we do not claim to exercise over them 
any suzerainty at all and that we are 
not tendering our guardianship as if they 
were children or as if they needed it. 
We reserve to ourselves the right, should 
oppression or injustice be manifested in 
a warlike way by any of the European 
countries against them, and should they 
be unfortunate enough not to be able 
to give effective resistance, to determine 
whether it is not in our own interest to 
intervene and prevent an overturning of 
their government or an appropriation of 
their territory. But we recognize that 
this possibility is so remote that it prac- 
tically removes them from the operation 
of the Monroe Doctrine. I am glad to 
see that Mr. Roosevelt, in his visit to 
those countries, has sought to impress 
them with the same view of the Monroe 
Doctrine that I have thus expressed. 
Indeed, he would have helped them, and 

[ 18] 


us, too, far more if he had confined his 
teachings and lectures to explanations 
and limitations of the Monroe Doctrine 
and had not sought to destroy the inde- 
pendence of the judiciary and demoralize 
the administration of justice in two con- 

But it is said that we ought to invite 
in these so-called ABC powers of South 
America to assist us in upholding the 
Doctrine and also in doing what the Doc- 
trine, as well as neighborhood interests, 
may lead us to do with near-by coun- 
tries around the Gulf of Mexico and the 
Caribbean Sea. It is suggested that we 
ought to establish some sort of relation- 
ship with these great powers as members 
of a kind of hegemony to decide upon 
Latin- American questions and participate 
in intervention to help along the smaller 
countries, and thus put such powers on 
an equality with us in our American policy 
and give assurance of our disinterested- 

[ 19] 


ness. If we could do this I would be 
glad to have it done, because it would 
relieve us of part of a burden and would 
give greater weight to the declaration of 
the policy. I would be glad to have an 
effort tactfully made to this end and I 
don't want to discourage it; but I fear 
we should find that these Powers would 
be loath to assume responsibility or bur- 
den in the matter of the welfare of a gov- 
ernment like one of the Central American 
republics, or Haiti or Santo Domingo so 
remote from them and so near to us. 
We attempted, in case of disturbance in 
the Central American governments once 
or twice, to interest Mexico, when Mexico 
had a responsible government and was 
very near at hand, but President Diaz was 
loath to take any part with the United 
States in such an arrangement, and we 
found that whatever had to be done had 
to be done largely on the responsibility 
of the United States. 



If action in respect of any republic of 
South America were necessary under the 
Monroe Doctrine, the joining of the A 
B C powers with the United States 
might involve suspicion and jealousy on 
the part of other South American repub- 
lics not quite so prosperous or so stable 
as the ABC powers. Thus, instead 
of helping the situation, the participa- 
tion of part of the South American gov- 
ernments might only complicate it. I 
know something about the character of 
those countries myself, not from personal 
observation but from a study of the char- 
acter of Spanish-descended civilizations 
and societies, and I venture to say that, 
sensitive as they all may be in respect to 
suspected encroachments of the United 
States, they are even more sensitive as 
between themselves and their respective 
ambitions. During my administration 
Mr. Knox, the secretary of state, ten- 
dered the good offices of the United 



States as between South American gov- 
ernments who were bitter against each 
other over boundaries and other disputes, 
and successfully brought them to a peace- 
ful solution; but in those controversies 
it was quite apparent that whatever 
might be the general feeling against the 
United States, their suspicions of each 
other, when their interests were at vari- 
ance, were quite as intense. Indeed, it is 
not too much to say that the fear in the 
hearts of the less powerful peoples of South 
America of a South American hegemony 
is more real than any genuine fear they 
may have of the actual suzerainty of 
our government. My belief, therefore, is 
that unless we could organize a union of 
all the countries of two continents, which 
would be so clumsy as to be entirely im- 
practicable, the influence of the United 
States can probably be exerted in sup- 
port of the Monroe Doctrine more effec- 
tively and much less invidiously alone 

[ 22 ] 


than by an attempt to unite certain of 
the South American powers in an effort 
to preserve its successful maintenance. 
I hope my fear in this respect will prove 
to be unfounded and that the plan sug- 
gested may be successful. 

I have read with a great deal of inter- 
est the account given by Professor Bing- 
ham of South American public opinion 
toward the United States in his most 
interesting book, which he calls 'The 
Monroe Doctrine, an Obsolete Shibbo- 
leth." His views were based on an ex- 
tended and very valuable opportunity 
for observation in nearly all the South 
American countries. He pictures with 
great force the feeling that is cultivated 
by the press of those countries against 
the United States, the deep suspicion that 
the people of South America have toward 
her professions of disinterestedness in 
South American and Central American 
politics, and their resentment at what 



they regard as an assumption of guard- 
ianship and of suzerainty over them, and 
a patronizing attitude which they believe 
to be involved in the maintenance of the 
Monroe Doctrine. He sets out the con- 
struction put by them on the various 
acts of the United States, and the mean 
and selfish and greedy motives they at- 
tribute to her, judging from speeches by 
their statesmen and politicians and from 
editorials of their newspapers. I know 
something of the opportunity the Span- 
ish language affords to convey, with the 
most studied and graceful periods and 
with an assumption of courteous and im- 
partial treatment, insinuations and suspi- 
cions of the sincerity of a person or a gov- 
ernment against whom the writer desires 
to awaken the hostility of his readers. 
Professor Bingham, without discussing 
the merits of the acts of authorities 
of the United States, to which he in- 
vites attention, merely gives the view 

[ 24 ] 


that the South American press of different 
countries took of those acts. No one 
can read the book and not see how 
unjust is much of the criticism of the 
United States. Nevertheless, I quite 
agree that it is the bounden duty of this 
government and her people to avoid as 
much as possible those acts which can 
give rise to a misconstruction of her mo- 
tives, and to take a course which shall 
deprive them of any appearance of a de- 
sire to use her power in this hemisphere 
or to enforce and extend the Monroe 
Doctrine with a view to her selfish ag- 
grandizement. I know the attractive- 
ness of the Spanish-American ; I know his 
high-born courtesy; I know his love of 
art, his poetic nature, his response to gen- 
erous treatment; and I know how easily 
he misunderstands the thoughtless blunt- 
ness of an Anglo-Saxon diplomacy and 
the too frequent lack of regard for the 
feelings of others that we have inherited. 



I sympathize deeply with every effort to 
remove every obstacle to good feeling 
between us and a great and growing 
people, if only we are not called upon in 
doing so to give up something valuable 
to us and to the world. 

The injustice of the attitude which 
Professor Bingham and others who take 
his views describe as that of the South 
American press may be seen by one or 
two references. Our Cuban war was 
begun with the most unselfish motives 
on our part and with a self-denying 
declaration; but it has been flaunted in 
South America as a war for aggran- 
dizement and the exploitation of new 
territory, because the people of Porto 
Rico desired to come under our govern- 
ment and we accepted them, and because 
we found the Philippines in such a condi- 
tion of anarchy that we had to take them 
over. We have not exploited either Porto 
Rico or the Philippines. We have only 



given them a better government and 
more prosperity and individual liberty 
than they ever had. We have promised 
the Filipinos that when their people ac- 
quire sufficient education and knowledge 
to make their government stable we will 
turn over the government to them. 
Twice Cuba has been under our control, 
and twice we have turned the island back 
to the people to whom we promised to 
do so when we entered upon the war. 
It has cost us hundreds of millions of 
money and many valuable lives to give 
her her independence. Nevertheless, our 
conduct, as unselfish and self-sacrificing 
as history shows, is treated among the 
South American people as an indication 
of our desire to enlarge our territorial 
control. Had we desired to extend our 
territory, how easily we could have done 
it? How many opportunities have been 
presented to us that we have rejected? 
Now, is it a reason for us to give up a 

[ 27 ] 


doctrine that has for near a century 
helped along the cause of peace that our 
motives in maintaining it have been mis- 
construed by the peoples who have so 
much profited by our enforcing it? If 
we had entered upon the policy merely 
because those peoples asked us to assert 
it, and for no other reason, then their 
wish to end it might properly be given 
great weight, but the doctrine was orig- 
inally declared to be one in our own in- 
terest and for our own safety. True, it 
has greatly strengthened our insistence 
upon the doctrine that it helped these 
peoples to maintain their governmental 
integrity and independence. Neverthe- 
less, the question whether we shall con- 
tinue it ought not to be controlled by 
their unjust feeling that our continued 
maintenance of the doctrine, with its 
proper limitations, in our own interest 
is in some way or other a reflection upon 
their national prestige and international 

[ 28] 


standing. It has made for peace in 
ninety years. Why will it not make for 
peace the next one hundred years? 

But it is said that the doctrine has 
been greatly extended and that it has 
led to intermeddling by our government 
in the politics of the smaller countries 
like Santo Domingo and the Central 
American republics, and that we are ex- 
ercising a protectorate of a direct char- 
acter over some of them. What we are 
doing with respect to them is in the in- 
terest of civilization, and we ought to do 
it to aid our neighboring governments 
whether the Monroe Doctrine prevails or 
not. My hope, as an earnest advocate 
of world peace, is that ultimately by in- 
ternational agreement we shall establish a 
court, like that of The Hague, into which 
any government aggrieved by any other 
government may bring the offending gov- 
ernment before an impartial tribunal to 
answer for its fault and to abide the judg- 

[ 29] 


ment of the court. Now, it is utterly im- 
possible that the peace of the world may 
be brought about under such an arrange- 
ment as long as there are governments 
that cannot maintain peace within their 
own borders and whose instability is such 
that war is rather the normal than the 
exceptional status within their territory. 
One of the most crying needs in the cause 
of general peace is the promotion of sta- 
bility in government in badly governed 
territory. This has been the case with 
Santo Domingo and Haiti. It has been 
true in a majority of the republics of Cen- 
tral America and until recently was true 
in the northern part of South America. 
Revolutions in those countries have been 
constant, peace has been the exception, 
and prosperity, health, happiness, law and 
order have all been impossible under 
such conditions and in such governments. 
The nearer they are to our borders the 
more of a nuisance they have become to 



us and the more injurious they are to our 
national interests. It was the neighbor- 
hood nuisance that led to the Cuban war 
and justified it. Now, when we properly 
may, with the consent of those in au- 
thority in such governments and with- 
out too much sacrifice on our part, aid 
those governments in bringing about sta- 
bility and law and order, without involv- 
ing ourselves in their civil wars, it is 
proper national policy for us to do so. 
It is not only proper national policy but 
it is international philanthropy. We owe 
it as much as the fortunate man owes aid 
to the unfortunate in the same neighbor- 
hood and in the same community. We 
are international trustees of the prosper- 
ity we have and the power we enjoy, and 
we are in duty bound to use them when 
it is both convenient and proper to help 
our neighbors. When this help prevents 
the happening of events that may prove 
to be an acute violation of the Monroe 

[31 ] 


Doctrine by European governments, our 
duty in this regard is only increased and 
amplified. Therefore it was that Mr. 
Roosevelt mediated between Venezuela 
and the governments of England, Ger- 
many, and Italy, as I have already ex- 
plained. So it was in the case of Santo 
Domingo, where a similar situation was 
foreshadowed, and in which, in order to 
relieve that situation, we assumed the 
burden of appointing tax-collectors and 
custom-house officials who were under our 
protection and who were saved from rev- 
olutionary attacks. We thus took away 
any motive for revolution, because it 
could not be successful without the funds 
which the seizure of custom-houses and 
the instrumentalities for the collection of 
taxes would furnish. This arrangement 
has been most profitable to the people of 
Santo Domingo and has relieved them 
from a succession of revolutions that had 
been their fate before it was adopted. 



The policy does not involve and ought 
not to involve a protectorate or any 
greater intervention in their internal 
affairs or a control of them than this 
power to protect custom-houses may 
involve. This is ample to secure pacifi- 

We cannot be too careful to avoid 
forcing our own ideas of government on 
peoples who, though favoring popular 
government, have such different ideas as 
to what constitutes it, and whose needs 
in respect to the forms of government 
that promote prosperity and happiness 
for them are widely variant from our 
own requirements. 

Arrangements similar to that made 
with Santo Domingo were sought from 
the United States by the governments 
of Honduras and Nicaragua, and treaties 
were made, but they were defeated by 
the Senate of the United States without 
good ground, as it seems to me. I am 



glad to note that the present administra- 
tion is looking with more favor upon 
treaties of this kind than its present sup- 
porters in the Senate were willing to give 
them when they were tendered to them 
for ratification by a Republican adminis- 

When we come to Mexico, where an- 
archy seems now to reign, the question 
is a most delicate one. Intervention by 
force means the expenditure of enormous 
treasure on our part, the loss of most val- 
uable lives, and the dragging out of a te- 
dious war against guerillas, in a track- 
less country, which will arouse no high 
patriotic spirit and which, after we have 
finished it and completed the work of 
tranquillity, will leave us still a problem 
full of difficulty and danger. All that 
those of us who are not in the govern- 
ment can do is to support the hands of 
the President and the secretary of state, 
and to present to the European powers 



and the world a solid front, with the 
prayer that the policy which is being 
pursued, whatever it may be, will be a 
successful one and relieve us from the 
awful burden of such a war as that I have 
described. In spite of the discouraging 
conditions in Mexico, however, the pres- 
ent situation illustrates the influence of 
the Monroe Doctrine on the attitude of 
the European powers, which, in spite of 
the injury to the property and persons of 
their nationals, look to the United States 
as the guide whom they are willing to 
follow in working out a solution. The 
condition of Mexico is bad enough, to be 
sure, but if it had involved us in European 
complications, such as would have been 
likely to arise had there been European 
intervention, its consequences might have 
been a great deal worse. 

Exception is taken to the resolution 
which the Senate adopted in August, 
1912, in which it was declared: 



That when any harbor or other place on 
the American continents is so situated that 
the occupation thereof for naval or military 
purposes might threaten the communications 
or the safety of the United States, the gov- 
ernment of the United States could not see 
without grave concern the possession of such 
harbor or other place by any corporation or 
association which has such a relation to. an- 
other government, not American, as to give 
that government practical power of control 
for national purposes. 

It suffices to say that this is not an 
enlargement of the Monroe Doctrine. It 
only calls special attention to a way of 
indirection by which it can be violated. 
The policy of making this announce- 
ment at the time may perhaps be ques- 
tioned, but that such an indirect method 
of securing a military outpost threaten- 
ing to the safety of the United States 
would be injurious to her interests does 
not admit of doubt. 

I do not intend here to go into the 
question of the merits of the controversy 



over the justice of our acquisition of the 
Canal Zone, enabling us to construct the 
Panama Canal. It would involve too 
long a discussion and is not relevant to 
the subject-matter of this chapter, be- 
cause what was done in that case by our 
government was not any assertion of the 
Monroe Doctrine, was not justified on 
the ground of the Monroe Doctrine, and 
our right to do what we did was based on 
very different principles. Earnest and 
sincere efforts were made in my adminis- 
tration to satisfy the United States of 
Colombia. A treaty was made with her 
representative, in Mr. Roosevelt's ad- 
ministration, which seemed fair, but it 
was immediately rejected. All efforts to 
secure an adjustment of her grievances 
have failed, and recently negotiations were 
postponed by her, with the belief that 
the incoming administration, of different 
political complexion, would be more will- 
ing than mine to do what she regards as 



exact justice to her. We should, there- 
fore, await with hope that the present 
administration may solve what for us 
was an insoluble difficulty. 

Mr. Root, whose great constructive 
labors in the cause of world peace have 
just received most just recognition in the 
Nobel Prize, in his visit to South Amer- 
ica attempted to convince the people of 
those republics that we wish no more ter- 
ritory and that we wish only the pros- 
perity of all our neighbors. And Mr. 
Knox, in his visit to Venezuela and to 
all the republics of the West Indies and 
Central America, made the same effort. 
I hope that Mr. Roosevelt may carry the 
same message to South America. Doubt- 
less, he is doing so. 

After some years I hope that a con- 
sistent course on our part may effect an 
abatement of the present feeling described 
by Professor Bingham and others. But, 
however that may be, and whatever in- 



justice the South American peoples may 
do us in suspecting us of selfish plans 
against them and their territory, we ought 
not to allow the present expressed hostil- 
ity to the Monroe Doctrine, which really 
involves no assertion of suzerainty or sov- 
ereignty over them, to change our course. 
The doctrine is based on a wise policy in 
our own interest to exclude from this 
hemisphere the selfish political interfer- 
ence of European governments and their 
appropriation of territory, not for the 
purpose of increasing our power or terri- 
tory, but for the purpose of promoting 
the prosperity, independence, and happi- 
ness of the peoples of these two conti- 
nents and so of insuring our own peace 
and safety. 




THE spread of democracy throughout the 
world and the influence that each people 
has in determining the foreign policy of 
its government have necessarily affected 
the discussion of useful agencies for the 
avoidance of war. Before the nineteenth 
century, wars largely turned upon the 
interests of dynasties and the ambitions 
and hatreds of kings, but now wars 
between countries having stable govern- 
ments are rarely begun without the wish 
of the majority of their respective peo- 
ples. Even a country like Russia, in 
the government of which the people are 



not supposed to have a great voice, was 
obliged to make peace in the Japanese 
war largely because her people opposed 
its continuance. Therefore, it becomes 
important, in the maintenance of peace, 
that each stable government representing 
its people in its foreign relations, and 
being answerable for them to another 
people, should be able to perform its 
promises promptly, and should certainly 
not keep them only to the ear and break 
them to the hope. Nice distinctions 
based on precedents in international law 
have more weight with learned states- 
men representing a dynasty than with an 
angered people. When they suffer in- 
justice they look to the substance of the 
international contract for their protec- 
tion, and if that is not performed, and 
the breach is an outrage upon their own 
race and their own kith and kin, their 
indignant feeling is dangerous to the 
peace between the two nations. 

[41 ] 


In one of my visits to Japan, as secre- 
tary of war, I had the pleasure of meeting 
and talking with Count Hayashi, one of 
the great statesmen and diplomats of that 
wonderful empire, and recently deceased. 
We were discussing very freely the re- 
lations between Japan and the United 
States, and he said that he felt confident 
that I was right in saying that the United 
States had no desire for a war with Japan, 
but, on the contrary, wished to avoid it 
by every honorable means. He expressed 
the hope that I credited his statement that 
the empire of Japan and those responsible 
for its government were equally anxious 
to make the peace between the two coun- 
tries permanent and abiding. "But," 
said he, "my people have grown much in 
national stature. They have won suc- 
cesses, civil and military. They have a 
deep love of their country and of their 
fellow countrymen, and perhaps they 
have what you will call 'patriotic self- 



conceit.' However this may be, their 
sensitiveness as a nation has increased, 
and it makes them deeply resent an in- 
justice or an invidious discrimination 
against them in a foreign country or by 
a foreign people. The only possible dan- 
ger of a breach between our two nations 
that I can imagine would be one growing 
out of the mistreatment of our people, 
living under the promised protection of 
the United States, through the lawless 
violence of a mob directed against them 
as Japanese." 

Now, what is true of the relation of 
these two countries is likely to be true 
of the relation between the United States 
and peoples of other countries. With al- 
most every nation we have a treaty in 
which each contracting party agrees that 
the nationals of the other party may re- 
side within its jurisdiction and, comply- 
ing with the laws, may legally pursue 
their vocations or business and enjoy the 



same protection to life, liberty, and prop- 
erty that the citizens of the contracting 
country enjoy. This is, perhaps, the most 
common clause in the many treaties of 
amity and commerce that now control 
the relations between the nations of the 

Since 1811 there have been many cases 
of mob violence against aliens, in which 
they have been killed or grievously in- 
jured. And while in all these cases we 
denied any liability, Congress has gen- 
erally made payments to those who were 
injured and to the families of those 
who were killed. In some cases the 
amount paid was recited in the act of 
appropriation to be a gratuity without 
admission of liability. In other cases the 
amount was paid without such reserva- 
tion. In no case that I have been able 
to discover have the perpetrators of these 
outrages been punished. In all the cases 
the local authorities have evidently sym- 

[ 44 ] 


pathized with the mob spirit and pur- 
pose or have been so terrorized by it as 
to avoid making a judicial investigation 
of real thoroughness. The results have 
thus been: first, the mob; second, the 
felonious assault, or murder, and destruc- 
tion of property; third, the farce of a 
State investigation; fourth, the indem- 
nity to the injured and the family of the 
dead; and, fifth, the complete immunity 
of the guilty. Such a list of outrages, 
reaching clear from 1811 down to 1910, 
without punishment, is not a record in 
which we can take pride. 

I propose to consider here whether any- 
thing can be done to change this state 
of affairs so long continued that recurring 
incidents of the same kind constitute it 
a custom. I feel confident that some- 
thing effective can be done to this end 
through valid federal legislation confer- 
ring on the federal government and courts 
executive and judicial jurisdiction to pre- 

[ 45 ] 


vent and punish these crimes against 
aliens in violation of their treaty rights. 
In some of such cases the feeling be- 
tween the countries involved has run 
high, and with the increased popular con- 
trol of foreign policies we may expect 
these incidents to become more dangerous 
to our peace. In letters of our secretaries 
of state, in answer to complaints of for- 
eign governments in such cases, attention 
is called to the fact that our general 
government has no jurisdiction to direct 
the prosecution under federal law of the 
perpetrators of these outrages, and the 
secretaries have been content with the 
statement that the persons killed or in- 
jured have had the same protection that 
citizens of this country have had, which, 
I may add, in all the instances under ex- 
amination, was no protection at all. The 
secretaries have pointed out that if pro- 
tection was needed or punishment was 
to be inflicted, it was the duty of the 

[ 46] 


State authorities to give it, as would 
have been the case had the persons killed 
or feloniously assaulted been American 
citizens. We make a promise and then 
we let somebody else attempt to perform 
it, and when it is not performed and it 
never is, we say : ' * We are not responsible 
for this. It is somebody else's failure, 
and, besides, you are not suffering any 
worse than our own citizens in this mat- 
ter, because they enjoy the same absence 
of protection extended to your people. 
However, say no more about it. We'll 
salve your feelings by a little money, the 
amount of which we'll fix." Now, we 
know the fact to be from this history 
that in such cases generally there is not 
the slightest hope through the State 
courts of having proper punishment in- 
flicted, or even attempted. In such cases 
the juries are generally drawn from the 
immediate neighborhood of the county 
and town in which the outrage is com- 



initted, and the case ultimately reduces 
itself to the result that the grand jury, 
or, if an indictment is found, which is 
almost as rare as a conviction, the petit 
jury, will be composed of either the 
criminals themselves or of their relatives 
and neighbors and sympathizers, and the 
prosecution is a farce. 

It does not soothe one's pride of coun- 
try to note the number of lynchings of 
our own citizens that go unwhipped of 
justice and that are properly held up to 
us with scorn whenever we assume, as 
we too frequently do, a morality higher 
than, and a government better than, that 
of other peoples. Nor is our feeling in 
this regard rendered less acute by hear- 
ing from the governors of some of our 
States expressions brazenly defending and 
approving such lynchings. Still more em- 
barrassing is our situation, when we are 
called upon to explain to a government 
with which we have made a solemn cove- 



nant to protect its citizens or subjects in 
their right of peaceable residence here 
and in the enjoyment of business and 
happiness under the aegis of the United 
States, that, while we did make a cove- 
nant, it ought to have known that under 
our system we as a government had 
no means of performing that covenant or 
of punishing those who, as our citizens, 
had grossly violated it. For lynchings of 
our own citizens within the jurisdiction 
of the State we can say to ourselves, 
for we have no other plea, that under 
the form of our government such crimes 
are a State matter, and if the peo- 
ple of a State will not provide, for their 
own protection, a machinery in the ad- 
ministration of justice that will prevent 
such lawless violence, and a public opinion 
to make it effective, then it is for them to 
bear the ignominy of such a condition. 
But when, in the case of the lynchings of 
aliens, whom we have plighted our na- 



tional faith to protect, the fact is that 
the Federal Government has the power to 
enact legislation to set its own adminis- 
tration of justice going by its own prose- 
cuting officers and through its own courts, 
and has not done so, we may well hang 
our heads in the face of adverse criticism. 
Such legislation need not find its only 
reason in our pride of country and our 
commendable desire to be considered in 
the first rank of civilized nations, obser- 
vant of treaty obligations and earnest in 
the protection of the rights both of our 
own citizens and our foreign guests. A 
much stronger reason for such legislation 
is in the Federal Government's taking 
over the right to protect itself and all the 
people against the danger of war that 
may be thrust on us by the lawless, cruel, 
prejudiced action of the people of a town, 
a city, or a county in dealing with sub- 
jects or citizens of other countries. It 
might well be that the race prejudice of 



such a community would carry us into 
war, and thus sacrifice thousands of val- 
uable citizens drawn from the whole 
country, and consume hundreds of mil- 
lions of treasure, to be met by taxation 
upon all the people of the United States. 
Ought not the government, therefore, to 
insist, should not all the people of the 
United States require, that their execu- 
tive at Washington, with a full knowledge 
of our delicate relations to the foreign 
sovereign whose subjects have been mur- 
dered, should have power enough to set 
the whole prosecuting and detective ma- 
chinery of the government at work to 
bring the ringleaders of such mobs to 
trial before juries summoned from a wider 
vicinage than that of the local commu- 
nity in which the outrage was committed, 
and free from the sympathy and terror- 
ism there likely to exist? 

But it is said that the dead are not 
protected or restored to life by punish- 

[51 ] 


ment of the malefactors, that those who 
are injured have no right to criminal 
prosecutions, which are matters of State 
concern only, and that, as the injury has 
been done, if pecuniary indemnity is 
granted by the general government, all 
that the victims can properly demand is 
given them. I am not discussing this from 
the standpoint of the victims at all. I am 
discussing it from the standpoint of our 
own governmental self-respect, safety, and 
freedom from international offence. It 
is true that the only punishment of per- 
petrators to such an outrage must come 
after the outrage; but if the ringleaders 
of one mob in a United States court 
were hanged for murder, the number 
of future lynchings of foreigners would 
be reduced in direct ratio to the cer- 
tainty of a repetition of that kind of jus- 
tice. I have had occasion to say before, 
and I say again, that the manner of trial 
in the Federal courts, in which the judge 



has the same control of the trial that he 
has at common law, can assist the jury 
in its investigation of facts, and can take 
charge of the trial out of the hands of 
the counsel for the defence, is a terror to 
evil-doers. While in the Eastern State 
courts, justice in crimes of violence is 
generally meted out with even hand, 
in the Western and Southern State courts 
this is not true, and the difference be- 
tween the administration in the Federal 
courts and in the State courts in such 
States is well known to those who are 
likely to become criminals. The cer- 
tainty with which mail robbers have been 
brought to justice makes every man who 
thinks of robbing the mail consider the 
chances of escape from Uncle Sam. In- 
deed, cases have occurred in which train 
robbers have religiously refrained from 
sacking the mail-car in order to avoid 
the federal jurisdiction. Moreover, in 
cases of mob violence against aliens, the 



direct energetic action of the National 
Government under the eye of the com- 
plaining foreign ambassador at Washing- 
ton would itself take the sting out of the 
incident, and minimize its danger as a 
cause for bad feeling between the two 

Of course, every one recognizes that the 
government of the United States cannot 
guarantee the detection and arrest of the 
criminals in such cases, or contract that 
when they are caught and tried, convic- 
tion will necessarily follow. In no civilized 
country can this be assured, and this cir- 
cumstance is an implied term of every 
treaty promise of this sort. But that 
uncertainty does not prevent courage, 
promptness, and energy on the part of the 
marshals and detective agents of the gov- 
ernment in efforts to identify and arrest the 
offenders and to find the evidence against 
them, or efficiency on the part of the 
prosecuting officers in properly preparing 



the case for the grand and petit juries. 
It is the utter absence of any sincere ef^ 
fort of the local authorities in such cases 
to bring the criminals to justice that nat- 
urally angers foreign peoples when they 
are asking reparation for the awful results 
of mob violence. It is our actual help- 
lessness, and our hopelessness of any re- 
medial measures to prevent a recurrence 
of such outrages, that give the futile ne- 
gotiation such a deplorable color in the 
eyes of the injured nation. 

We can all remember the deep feeling 
aroused in our whole people over the 
massacre of the Jews in parts of Russia 
and the intense indignation that mani- 
fested itself among their coreligionists in 
this country, and how sceptical all our 
people were concerning official denials of 
governmental responsibility for such out- 
rages. Let us try to look at lynchings 
of aliens in this country from the stand- 
point of their fellow countrymen at 



home. In the utter absence of protec- 
tion or attempted punishment of the 
murderers, can we wonder that there 
should be a deep-seated suspicion on 
their part that the bloody riots have been 
with either the connivance or acquiescence 
of our authorities? 

Federal legislation which would remedy 
the present great defect in the powers of 
the National Government to protect aliens 
in their treaty rights has been proposed to 
Congress a number of times and has en- 
countered serious opposition. The ques- 
tion was submitted to a committee of 
the American Bar Association that made 
a report in 1892, in which the constitu- 
tionality of such legislation was doubted 
and its wisdom was vigorously denied. 
We must assume that the reasons stated 
by the committee in that report are those 
which have moved Congress to withhold 
the action for which, in my judgment, 
there is a crying need. It is greater now 
than ever it was. It cannot be said that 



respect for the law or constituted author- 
ity has increased in this country. Espe- 
cially has it been weakened in those com- 
munities where class or race feeling seeks 
expression. Nor is the administration of 
criminal justice in the States in such cases 
likely to be more prompt or certain in the 
future than in the past. It is in such juris- 
dictions that the innovation of recall of 
executive officers is in vogue a device 
which is not calculated to make gover- 
nors or sheriffs or prosecuting attorneys 
more active in their arrest and prosecu- 
tion of mob leaders, who are too often 
only exponents of local feeling and have 
the sympathy of the vicinage. When we 
add, as we may, that in many such States 
the recall of judges also has just come 
into use, we can understand how utterly 
futile it is to expect that there will be any 
improvement in making good the gov- 
ernment's promise to aliens through such 
official agencies. 

In order to meet the arguments of those 



who oppose this legislation, I shall run 
over the objections that were presented 
by the committee of the American Bar 
Association to whose report I have re- 
ferred. I ought to say in advance, with 
respect to the committee, that it was ev- 
idently composed of strict construction- 
ists of the Constitution, that their re- 
port was not adopted by the American 
Bar Association, but that instead they 
were discharged from the consideration 
of the subject, and, because of divided 
views in the association, a resolution was 
adopted declaring it inexpedient for the 
association to make any recommendation 
to Congress on the subject. The refer- 
ence of the subject to the committee was 
prompted by the then recent lynching of 
nine Italians confined in a New Orleans 
jail. A bill had been introduced into 
Congress to confer on Federal courts 
jurisdiction to try and punish perpetra- 
tors of such outrages. 



The first reason given as against such 
legislation was that outrages equally 
shocking as that at New Orleans had oc- 
curred in the past without suggesting any 
necessity for interfering with the powers 
of the States to punish crime. It might 
have been added that no one had ever 
been brought to justice for the commis- 
sion of any of the outrages of a similar 
character that had been committed since 
1811. Just because a glaring defect has 
been allowed to exist for a century, is 
that any reason why we should not now 
take steps to remedy it? 

The second objection was that in more 
than a century only seven cases have 
occurred to which by any possibility this 
legislation could apply. 

In answer to this, I can o^y set out 
an official list of the outrages committed 
in recent years. 

At Rock Springs, Wyoming, on No- 
vember 30, 1885, there was an armed at- 



tack by one hundred men on a Chinese 
settlement in a mining town, in which all 
the houses were burnt, and in which 
twenty-eight Chinamen lost their lives, 
sixteen were wounded, and all their prop- 
erty was destroyed. 

In a similar attack in Squak Valley, 
Washington, three Chinamen were killed 
and four wounded. 

At Orofino, in Idaho, five Chinese were 

At Anaconda, in Montana, four China- 
men were killed. 

At Snake River, Oregon, ten Chinamen 
were killed. 

In Juneau, Alaska, one hundred Chi- 
nese were expelled by lawless violence 
from their homes and the territory. 

In an official note of February 15, 1886, 
riots were reported at Bloomfield, Red- 
ding, Boulder Creek, Eureka, and other 
towns in California, involving murder, 
arson, and robbery, and it was added that 



thousands of Chinese had been driven 
from their homes. 

Nine Italians were lynched in New 
Orleans in 1891. 

In August, 1895, one Mexican was 
lynched in California. 

In October, 1895, one Mexican was 
lynched in Texas. 

In 1895 three Italians were lynched at 
Walsenberg, Colorado. 

In 1896 three Italians were lynched at 
Hahnville, Louisiana. 

In 1899 three Italians were lynched at 
Tallulah, Louisiana. 

In 1901 three Italians were lynched at 
Erin, Mississippi. 

In 1910 one Italian was lynched in 

This list, it seems to me, is a sufficient 
answer to the suggestion made by the 
committee that such events do not occur 
with sufficient frequency to require re- 
form, especially when we consider in con- 



nection with these cases the recent very 
acute feeling over the treatment of Japa- 
nese subjects in California. 

The third objection by the committee 
to Federal control of such prosecutions 
was that two of the outrages against aliens 
were in territories in control of the Fed- 
eral Government, and no better enforce- 
ment of the law was shown there than 
in State jurisdiction. They were in terri- 
tories under the control of territorial gov- 
ernments, with the same weaknesses that 
a State government has, with prosecutions 
in a county, with the jury drawn from 
the immediate vicinage and under the 
terrorism of a small locality, which is a 
very different thing from prosecutions in 
the regular Federal courts. 

The committee's fourth objection was 
that the suggestion of this legislation has 
not come in any case from a foreign power 
with whom we are in treaty relations, and 
that the demands pressed upon the United 



States Government have been almost uni- 
formly not so much for punishment of 
the assailants as for pecuniary indem- 
nity, which the injured parties had al- 
ready the right to seek in the United 
States courts. 

This statement is inaccurate. In many 
of the instances in which extended corre- 
spondence was had with our State de- 
partment by the diplomatic representa- 
tive of the foreign governments whose 
subjects had been killed or injured there 
were demands for punishment, and there 
were suggestions that the promise of pro- 
tection was made by the United States in 
the treaty and that the foreign countries 
looked to the United States and not to 
the subordinate States for compliance 
with treaty obligations. 

The fifth objection was that our secre- 
taries of state, in their correspondence 
with complaining foreign representatives, 
have uniformly insisted upon the com- 



mon-law principle that the punishment 
of crime must be left to the ordinary and 
orderly administration of justice by the 
State courts in like manner as in similar 
cases affecting our own citizens. 

Of course our government has taken 
that position. The secretaries of state 
found themselves in such a position that 
they had to. It is not to be expected 
that they would have made prominent 
our failure to legislate when we might 
have legislated to give us the proper 
means of discharging our obligations. 

In his annual message of December 
5, 1899, President McKinley used these 

For the fourth time in the present decade 
question has arisen with the Government of 
Italy in regard to the lynching of Italian 
subjects. The latest of these deplorable 
events occurred at Tallulah, Louisiana, 
whereby five unfortunates of Italian origin 
were taken from jail and hanged. . . . The 
recurrence of these distressing manifestations 

[64 ] 


of blind mob fury directed at dependents or 
natives of a foreign country suggests that 
the contingency has arisen for action by Con- 
gress in the direction of conferring upon the 
federal courts jurisdiction in this class of in- 
ternational cases where the ultimate respon- 
sibility of the Federal Government may be 

And he refers to a recommendation of 
President Harrison made in this matter 
in 1891, just after the Mafia case, in 
which President Harrison said: 

It would, I believe, be entirely competent 
for Congress to make offenses against the 
treaty rights of foreigners domiciled in the 
United States cognizable in the federal courts. 
This has not, however, been done, and the 
federal officers and courts have no power in 
such cases to intervene either for the pro- 
tection of a foreign citizen or for the punish- 
ment of his slayers. 

President McKinley then said: 

I earnestly recommend that the subject be 
taken up anew and acted upon during the 
present session. The necessity for some such 
provision abundantly appears. 



In his message of 1900 the same Presi- 
dent made another urgent recommenda- 
tion of the same kind. 

President Roosevelt, in his annual 
message of December, 1906, in dealing 
with our relations with Japan, which 
were then of much public concern, said: 

One of the great embarrassments attend- 
ing the performance of our international 
obligations is the fact that the statutes of 
the United States are entirely inadequate. 
They fail to give to the national government 
sufficiently ample power, through United 
States courts and by the use of the army 
and navy, to protect aliens in the rights se- 
cured to them under solemn treaties which 
are the law of the land. I, therefore, ear- 
nestly recommend that the criminal and civil 
statutes of the United States be so amended 
and added to as to enable the President, act- 
ing for the United States Government, which 
is responsible in our international relations, 
to enforce the rights of aliens under treaties. 
There should be no particle of doubt as to 
the power of the national government com- 
pletely to perform and enforce its own obliga- 
tions to other nations. The mob of a single 



city may at any time perform acts of law- 
less violence against some class of foreigners 
which would plunge us into war. That city 
by itself would be powerless to make defense 
against the foreign power thus assaulted, and 
if independent of this government it would 
never venture to perform or permit the per- 
formance of the acts complained of. The 
entire power and the whole duty to protect 
the offending city or the offending commu- 
nity lies in the hands of the United States 
Government. It is unthinkable that we 
should continue a policy under which a given 
locality may be allowed to commit a crime 
against a friendly nation, and the United 
States Government limited, not to preventing 
the commission of the crime, but, in the last 
resort, to defending the people who have 
committed it against the consequences of 
their own wrong-doing. 

And in my Inaugural address, March 
4, 1909, I brought the subject to the at- 
tention of Congress as strongly as I could, 
as follows: 

By proper legislation we may, and ought 
to, place in the hands of the federal execu- 
tive the means of enforcing the treaty rights 



of such aliens in the courts of the Federal Gov- 
ernment. It puts our government in a pu- 
sillanimous position to make definite engage- 
ments to protect aliens and then to excuse 
the failure to perform those engagements by 
an explanation that the duty to keep them 
is in States or cities, not within our control. 
If we would promise we must put ourselves 
in a position to perform our promise. We 
cannot permit the possible failure of justice, 
due to local prejudice in any State or mu- 
nicipal government, to expose us to the risk 
of a war which might be avoided if Federal 
jurisdiction was asserted by suitable legisla- 
tion by Congress and carried out by proper 
proceedings instituted by the executive in 
the courts of the national government. 

These citations would seem to refute 
any suggestion that those having official 
responsibility for our foreign relations 
have not realized the crying need for 
such legislation. 

The committee's sixth objection was 
that upon this basis all complaints aris- 
ing out of such cases have been settled 
through the ordinary diplomatic chan- 

[ 681 


nels and without any loss of self-respect 
to our government 

That is a matter of opinion. If one 
can judge from the communications from 
some of the secretaries of state to Con- 
gress and the messages of the Presidents 
just quoted, they feel very deeply the 
loss of self-respect that their enforced 
attitude and their inability to take ac- 
tion involves. Indeed, it is impossible 
to explain the payment by the Con- 
gress of the United States, on the rec- 
ommendation by the executive, of an 
indemnity in every case of these interna- 
tional outrages, unless there has been a 
real feeling on the part of the authorities 
of this government that we are at fault 
and that we intend to do something to 
save, as much as possible, the blame that 
is properly chargeable to us and our gov- 
ernment. The position of the govern- 
ment usually is that we do not owe any- 
thing as a matter of right. If so, and 



if it is sound doctrine that we must treat 
equally the citizens of our own country 
and citizens of a foreign country, why 
should we discriminate and pay an in- 
demnity to the foreign citizens or sub- 
jects who were injured or killed and not 
pay a similar indemnity in cases of lynch- 
ings of our own citizens? Our position 
and our action are not consistent and the 
reason why they are not consistent is be- 
cause we have made the promise and are 
not in a position to perform it, and there- 
fore we do the next best thing and try to 
salve the wounds of our sister nations by 
money payments. 

The committee's seventh objection was 
that the method of dealing with such 
cases in England, the other great com- 
mon-law country, is precisely analogous 
to our own. 

This is inaccurate because in England 
the initiation of the administration of 
justice, the detection of criminals, and 

[ 70] 


the control of their prosecution is with 
the law officers of the crown. 

Then the learned committeemen went 
into a consideration of the possible anom- 
alies that would arise were felonious as- 
saults upon foreign subjects or citizens 
made a federal offence. It was said that 
it might involve double jeopardy. Well, 
there are a great many instances in which 
just such double jeopardy, if it can be 
called such, occurs in respect of acts that 
constitute an offence against both State 
and Federal sovereignties. In view of the 
fact that such offences are never brought 
to trial in a State, much less to conviction, 
the practical danger of double jeopardy, 
if it be such, is most remote. 

Then it is said that it will produce 
great confusion because there are so many 
aliens in this country that the assaults 
upon whom would crowd the Federal 
courts and introduce a deplorable delay. 

Even if there were some delay in fi- 



nally disposing of such cases, their ener- 
getic initiation is much to be preferred to 
that kind of despatch of the business in 
State courts which results in a report of 
the coroner and grand jury that the perpe- 
trators are unknown. Nor is it true that 
such cases would clog the Federal courts. 
Those courts can take care of many more 
criminal cases to-day than in 1891, and 
the discretion of the attorney-general or 
the prosecuting officer of the Federal Gov- 
ernment can well be trusted to leave to 
the jurisdiction of the State courts those 
crimes of violence against aliens that are 
in ordinary course and do not really in- 
volve race or national feeling or interna- 
tional complications. There are many 
classes of offences cognizable in both Fed- 
eral and State jurisdictions in which such 
comity of arrangement exists and is sat- 
isfactory in its operation. 

But it is suggested that in some way 
or other we are putting the foreigners 

[ 72] 


into a privileged class by providing for 
their protection by the United States 
courts and United States officers. Don't 
we do so by paying indemnities? But, 
more than this, the suggestion is be- 
side the mark. Criminals have no vested 
rights to trial in a jurisdiction where con- 
viction is impossible, or to object to a 
jurisdiction which is likely to convict 
them when they assault those whom the 
plighted hospitality of the nation ought 
to protect. We are not putting the vic- 
tims in a privileged class solely or chiefly 
for the purpose of giving them any bene- 
fit, but rather for the purpose of protect- 
ing the Federal Government from just 
complaint by a sister nation and from 
being possibly involved in war by the 
lawlessness and selfishness of local com- 

The reasons of legislative policy ad- 
vanced by the committee against the bill 
were thus, in the highest degree, techni- 



cal and entirely without weight, and the 
lamentable occurrences since their report 
emphasize their error. 

Finally, the committee intimated that 
such legislation as proposed would be in 
violation of the Constitution. They do not 
argue this out. They only suggest that it 
would be an invasion of the police power of 
the States, and they assume a construction 
of the Constitution that would have done 
in the days of Chief Justice Taney and the 
strict construction period of the Supreme 
Court before the war. They ignore a 
specific declaration by the Supreme 
Court that such legislation would be 
valid and a long series of cases by that 
tribunal which by analogy leave not the 
slightest doubt of the power of the gov- 
ernment not only to assume such judi- 
cial jurisdiction after the offence, but 
also to take preventive executive mea- 
sures before the offence to stop such out- 



The bill proposed to give jurisdiction 
of such cases to the federal courts is as 
follows : 

Be it enacted by the Senate and House 
of Representatives of the United States of 
America, in Congress assembled, that any 
act committed in any state or territory of 
the United States in violation of the rights 
of a citizen or subject of a foreign country 
secured to such citizen or subject by treaty 
between the United States and such foreign 
country, which act constitutes a crime under 
the laws of such state or territory, shall 
constitute a like crime against the peace and 
dignity of the United States, punishable in 
like manner as in the courts of said state or 
territory, and within the period limited by 
the laws of such state or territory, and may 
be prosecuted in the courts of the United 
States, and, upon conviction, the sentence 
executed in like manner as sentences upon 
convictions for crimes under the laws of the 
United States. 

The question of the validity of this 
proposed legislation under the Consti- 
tution involves a consideration of the 
treaty-making power of the Federal 

[ 75] 


Government and the powers necessarily 
resultant from that and incident to it. 

The treaty-making power of the United 
States is the widest power that it has. 
The executive power in our domestic 
field of government is divided between 
the general government and the State 
governments, between the President and 
other executive officers of the United 
States, on the one hand, and State gov- 
ernors and other executive officers of the 
States on the other. The legislative pow- 
er is divided between Congress and the 
legislatures of the States. The judicial 
power is divided between the Federal 
courts that exercise the jurisdiction ex- 
tended to them by the Federal Constitu- 
tion and laws and the courts of the States. 
But all governmental power exercised by 
the country in dealing with foreign gov- 
ernments is exercised by the Federal Gov- 
ernment alone, and the only limitation 
upon that power is that in treaty making 



the President and the Senate shall not 
violate any prohibition of the Constitu- 
tion and shall exercise that power within 
the limits which international practice 
normally imposes as to the subjects to 
be included in a treaty. This wide and 
exclusive power of the central govern- 
ment in treaty making is easily to be 
inferred from the fact that by the Con- 
stitution the States are expressly forbid- 
den to enter into any treaty, alliance, or 
confederation, to grant letters of marque 
and reprisal, unless Congress consents, 
to lay any duty of tonnage, to keep 
troops or ships of war, in time of peace, 
to enter into any agreement or com- 
pact with another State or with a for- 
eign power, or to engage in war unless 
invaded; while the general government 
is expressly empowered to make trea- 
ties, to regulate commerce with foreign 
nations, to establish a uniform rule of 
naturalization, to define and punish pira- 



cies and felonies committed on the high 
seas, and offences against the law of 
nations, to declare war, grant letters of 
marque and reprisal, and make rules con- 
cerning captures on land or water, to 
raise and support armies, to provide and 
maintain a navy, to make rules for the 
government and regulation of the land 
and naval forces, to provide for the call- 
ing forth the militia to repel invasions, 
to appoint ambassadors and other pub- 
lic ministers and consuls, and to adjudi- 
cate causes arising under treaties and all 
cases affecting ambassadors, other public 
ministers, and consuls, causes of admi- 
ralty and maritime jurisdiction, and cases 
between a State or the citizens thereof, 
and foreign states, citizens, and subjects. 
And, further than this, the treaties made 
by the authority of the United States are 
expressly declared to be the supreme law 
of the land and the judges in every State 
are to be bound thereby, anything in the 



Constitution or the laws of any State to 
the contrary notwithstanding. 

It would be difficult to make clearer 
the intention of the framers of the Con- 
stitution and the people who ratified it 
to give over to the general government the 
executive power to control foreign affairs 
and to give to the treaty-making power 
as wide a scope as treaties between in- 
dependent governments are wont to have. 
As already said, one of the most com- 
mon provisions in treaties between civi- 
lized countries is that which reciprocally 
binds each of the parties to give an op- 
portunity for peaceful residence and pur- 
suit of business in its territory to the citi- 
zens or subjects of the other. 

Unlike treaties in most countries, a 
treaty made by the United States has a 
double aspect. It is not only a contract 
between the two countries, as it is in 
England and in other jurisdictions. It 
is that and more, because in so far as its 



provisions in their nature can have oper- 
ation in the United States as municipal 
law, they are statutes. They are equiv- 
alent to a law passed by Congress, and as 
such they repeal a previous inconsistent 
law of Congress, on the one hand, and 
can be repealed by a subsequent incon- 
sistent law of Congress on the other. It 
follows, therefore, that aliens living in 
this country, whose sovereign has made 
a treaty with the United States in which 
the United States guarantees protection 
to life and property to such aliens during 
their residence within the jurisdiction of 
the United States, have a right under the 
federal Constitution and law to be secure 
against any invasion of their peaceable 
residence and the holding of property. 
Under the eighteenth clause of Section 
VIII of Article I of the Constitution, 
Congress has power to make all laws 
which shall be necessary and proper for 
carrying into execution all powers vested 



by this Constitution in the government 
of the United States. It needs no strain- 
ing of logic, but only the use of the rea- 
soning pursued by the Supreme Court in 
hundreds of similar cases, to deduce the 
power of Congress under that clause to 
enact legislation to carry out and execute 
such an agreement by the United States 
to protect aliens from lawless violence. 
Therefore, it would be entirely compe- 
tent for Congress to pass the bill I have 
quoted above. 

Now, if the committee of the Bar Asso- 
ciation, to which I have referred, had not 
expressed some doubts as to the power 
of Congress to pass such a law, I would 
not have thought it necessary to argue 
it. The power has been expressly af- 
firmed by the Supreme Court. The case 
of Baldwin vs. Franks, 120 U. S. 678, 
involved the punishment of a man for 
using lawless violence against Chinese 
aliens resident in California, driving them 

[81 ] 


from their residence and depriving them 
of their legitimate business, contrary to 
a treaty made between the United States 
and China in 1881. 

The Supreme Court said: 

That the treaty-making power has been 
surrendered by the States and given to the 
United States is unquestionable. It is true, 
also, that the treaties made by the United 
States and in force are part of the supreme 
law of the land, and that they are as binding 
within the territorial limits of the States as 
they are elsewhere throughout the dominion 
of the United States. 

The court then recites the clause of 
the treaty and continues: 

That the United States have power under 
the Constitution to provide for the punish- 
ment of those who are guilty of depriving 
Chinese subjects of any of the rights, privi- 
leges, immunities, or exemptions guaranteed 
to them by this treaty, we do not doubt. 
What we have to decide, under the questions 
certified here from the court below, is whether 
this has been done by the sections of the re- 
vised statutes specially referred to. 



But they found no law on the statute 
book with language which embraced such 

This decision was rendered in 1887 
and the report of the Bar Association 
committee was in 1891, and the report, 
so far as I can find, does not mention 
the decision of the court in Baldwin vs. 
Franks. As the committee of the Bar 
Association had no jurisdiction to reverse 
the views of the Supreme Court, I assume 
that we can treat the constitutional con- 
struction declared by the Supreme Court 
as still in force. 

But such punishment of crime in the 
federal courts and by the authority of 
the United States against those who vio- 
late the treaty rights of aliens is not the 
only thing that can be done. One of the 
ideas that it took a long time to get into 
the heads of strict constructionists of 
the Constitution was that there is not 
only the peace of a State, but there is 



also, on the same soil, the peace of the 
United States; that while the breach of 
State law by violence is a breach of the 
peace of the State, breach of Federal law 
by violence is a breach of the peace of 
the United States. 

In the case of Ex Parte Siebold, 100 
U. S. 371-394, the court was considering 
an objection, very similar to the one made 
here, against a law providing for the pro- 
tection of a citizen of a State in his rights 
under the Federal Constitution against 
assault. They said: 

It is argued that the preservation of peace 
and good order in society is not within the 
powers confided to the government of the 
United States, but belongs exclusively to 
the States. Here again we are met with the 
theory that the government of the United 
States does not rest upon the soil and ter- 
ritory of the country. We think that this 
theory is founded on an entire misconception 
of the nature and powers of that govern- 
ment. We hold it to be an incontrovertible 
principle that the government of the United 
States may, by means of physical force, exer- 



cised through its official agents, execute on 
every foot of American soil the powers and 
functions that belong to it. This necessa- 
rily involves the power to command obedi- 
ence to its law, and hence the power to keep 
the peace to that extent. 

In the Debs case, reported in 158 U. S. 
564, Mr. Justice Brewer said: 

The entire strength of the nation may be 
used to enforce in any part of the land the 
full and free exercise of all national powers 
and the security of all rights entrusted by 
the Constitution to its care. ... If the 
emergency arises, the army of the nation, 
and all its militia, are at the service of the 
nation to compel obedience to its laws. 

This language has exact application to 
the protection of the treaty rights of 
aliens. Therefore, not only ought the 
bill to be passed which I have read above, 
providing for a punishment of lawless 
violence directed against the rights and 
welfare of aliens guaranteed in a treaty 
of the United States, but express statu- 
tory provision ought also to be made en- 



abling the President, in his discretion, to 
act directly, and without reference to 
State action, in protection of such aliens 
when their safety and peaceable residence 
are threatened. Such executive power 
would doubtless be implied if Federal 
court jurisdiction were given, but it 
would be greatly better to make it ex- 
press. Then the President could move at 
once to the protection of aliens living in 
settlements where mobs threaten attack, 
and practical results might be expected, 
making the protection of the United States 
a real thing. Then the secretary of state 
could look in the face the ambassador of 
the country whose subjects or citizens are 
threatened with a gross violation of their 
treaty rights, and point to the effective 
measures of protection taken to vindi- 
cate the honor and the plighted faith of 
the United States. 

Now, if such legislation is so plainly 
needed, why has it not been enacted? 



This is a hard question for me to answer 
except by suggesting that aliens are not 
voters and their rights are not a polit- 
ical issue. Both parties are at fault in 
this matter. When I was President, as 
quoted above, I urged the adoption of 
such legislation, and then took such steps 
as I could in other ways to secure its en- 
actment. At my suggestion, Mr. Swagar 
Sherley, a leading Democratic member of 
the House, from Louisville, Kentucky, 
attempted to introduce such legislation 
into the revision of the judicial code, but 
objection was made on the ground that 
it would introduce new legislation into a 
code that should be only a revision of 
existing legislation. The separate bill for 
the purpose which was introduced, I 
could not, in the pressure of other legis- 
lation, induce either House to take up. 
There seemed to be the strong opposi- 
tion not only of Democrats from the 
South but of Republicans from the far 



West, and this prevented its consider- 

May we, therefore, not ask from this 
administration, in the course of which 
there has been exhibited, under the ad- 
mirable leadership of the President, such 
wonderful party discipline in the pas- 
sage of legislation, that action be taken on 
this important matter? The negotiations 
with Japan would, I am sure, be greatly 
assisted by giving such an earnest of the 
sincerity of our government in protecting 
her people in the rights we assure them. 
If it be said that the party in power 
is traditionally opposed to giving the 
Federal Government more functions and 
to concentration of power in Washing- 
ton, we may well urge that when the 
party in power has swallowed camels in 
the passage of a law giving the largest 
government control of banking and cur- 
rency known in our history, and in pro- 
jecting a law vesting the widest Federal 



power in respect to corporations doing 
interstate business, and another looking 
to Federal regulation of presidential pri- 
maries, the party leaders should not strain 
at the gnat of Federal performance of 
Federal promises, even if it may involve 
the transfer to the jurisdiction of Federal 
courts of a comparatively few cases which 
are now in theory triable in State courts 
but in fact are never tried there. 




THE war between Italy and Tripoli, the 
war in China, the war between the Bal- 
kan States and Turkey and then the sub- 
sequent war between the Balkan States 
themselves, the war in Haiti, and finally 
the war in Mexico, all are contemporary 
and convincing evidence that the dawn 
of universal peace is not immediately at 
hand. It is true that these are nearly 
all of them civil wars or revolutions, 
and that the restoration of peace in 
most of them requires only the estab- 
lishment of stable governments. It is 
very certain that in such cases, treaties 
of arbitration, whatever their terms and 



however solemnly entered into, are not 
a practical means of settlement. Many 
countries in the last century suffered from 
the disease of revolution. Looking back 
over half a century, we can properly say 
that in the countries subject to such out- 
breaks there has been great improvement; 
and, while Mexico shows retrogression in 
this regard, most of the South American 
countries have grown stronger in the 
maintenance of law and order and the 
preservation of constituted authority. 

I think it is our duty, as a great, strong, 
powerful nation, when we can easily do 
so without involving ourselves in costly 
or dangerous war, to promote the cause 
of peace and order in any of our less 
stable neighbors through treaty arrange- 
ments with them, and this wholly with- 
out regard to the Monroe Doctrine. We 
have had such an opportunity with Nic- 
aragua, with Honduras, with Santo Do- 
mingo, and we may possibly have the 



same kind of an opportunity with other 
states similarly conditioned. They all 
owe what to them is a large amount 
of money to European creditors. Their 
creditors are willing to scale down the 
debts, which in justice ought to be sub- 
stantially scaled, if they can be given 
greater security. The governments of 
these countries, confident that we are 
disinterested in the matter, have mani- 
fested a desire to have American bankers 
finance the readjustment of their obliga- 
tions if our government will only consent 
to a treaty in which there is reserved to 
us the right to nominate collectors of 
their customs revenues and to protect 
such collectors against lawless violence. 
The amount of force necessary to ex- 
tend this protection is almost negligible. 
Indeed, it is not more than the show 
of force that we usually make to protect 
American interests in the breaking out of 
a revolution in these countries. I never 

[ 92 ] 


have been able to understand the argu- 
ment against such treaties. They do not 
involve the Monroe Doctrine at all. They 
merely involve the obligation of a strong 
and powerful neighbor to help a weak 
one. They are in the interest of peace 
and good order and make for the just 
settlement of debts. In some way or 
other, such treaties are supposed to be 
a recognition of the right of European 
governments to collect the debts of their 
nationals by force; but I am unable 
to see why. They constitute merely 
a friendly act, and furnish a means to 
these governments of settling their past 
obligations and obtaining a much-needed 
sum of money to be expended in helping 
their people in education and in the de- 
velopment of their rich natural resources. 
In Central America the difficulty has 
been that a dictator in one republic has 
intrigued against his neighbors. He be- 
came a disturbing factor for all the rest. 



The treaties with Honduras and Nica- 
ragua would give the United States an 
opportunity to exert a direct influence 
to prevent the consummation of such in- 
trigues and to maintain a peace in that 
region of North America essential to the 
happiness of its people. Their trade is 
naturally of great value to us, and would 
be of much greater value if the arts of 
peace were pursued. 

But the subject of this chapter is not 
that of specific treaties. It is the ques- 
tion of the relation of the Senate to gen- 
eral arbitration treaties. I understand 
a general arbitration treaty to mean a 
treaty by which the nations who are 
parties to it agree that they will in the 
future submit to arbitration all future 
differences which come within a class 
of issues defined in the treaty. What I 
propose to discuss here is whether the 
President and the Senate have the power 
to make such treaties in a form that will 



really bind them and the government to 
anything substantial. 

In Mr. Roosevelt's term there were a 
number of arbitration treaties negotiated 
and signed by Mr. Hay and submitted 
to the Senate, in which it was agreed 
between the United States and the other 
treaty-making party that all questions 
:>f a legal nature, not including those of 
national honor or vital interest, would be 
submitted to The Hague tribunal, and 
that when any difference arose a spe- 
cific agreement of submission of the issue 
tvould be entered into. The Senate in- 
sisted that for the words "specific agree- 
ment," "treaty" should be substituted, 
in order that no specific agreement could 
be submitted under the treaty except 
with the advice and consent of the Sen- 
ate. Mr. Roosevelt declined to ratify 
treaties with this limitation, on the ground 
that the treaty thus limited did not bring 
the country any nearer to arbitration 

[95 1 


than if no treaty was made. On the 
other hand, the Senate insisted that it 
had no power to ratify such a treaty 
because it would be an unlawful delega- 
tion to the President alone of the treaty- 
making power. 

The treaties thus drawn either at- 
tempted to describe a class of questions 
which the government bound itself to 
arbitrate or they did not. If not, then 
they were not treaties at all, and there 
was no occasion to discuss what the 
Constitution required with reference to 
treaties. In that view they were a mere 
general declaratory expression of a hope 
that the parties might make a treaty in 
the future. If, however, the treaties did 
define a class of issues which the United 
States agreed to arbitrate, then whether 
an issue thereafter arising came within 
the class or not was a matter of construc- 
tion of the treaty. The agreement would 
then be nothing more than the framing 



of the specific issue which came within 
the general class as defined. It is a well- 
understood incident of the treaty-making 
power that in a treaty there may be re- 
served, without an unlawful delegation 
3f power, to the President, or to some 
3ther agent, the power to execute its 
provisions. As the Supreme Court said 
in Tong Yue Ting vs. the United States, 
149 U. S. 698 and 714: 

It is no new thing for the law-making 
3ower, acting either through treaties made 
3y the President and the Senate, or by the 
nore common methods of the acts of Con- 
gress, to submit the decision of questions not 
iccessarily of judicial cognizance either to 
:he final determination of executive officers, 
)r to the decisions of such officers in the 
irst instance, with such opportunity for ju- 
licial review of their action as Congress may 
see fit to authorize and permit. 

It was, therefore, entirely within the 
mthority of the treaty-making power, 
ifter having laid down a general rule 
)f jurisdiction fixing a definite class of 



questions which might be arbitrated be- 
fore the stipulated court, to leave the 
formulation of the specific issue coming 
within that class for the executive. 

The police power of Congress to regu- 
late the rates on interstate commerce 
railroads is exercised by laying down 
some very general rules that rates shall 
be reasonable, and shall not be unduly 
discriminatory, and by then giving to 
the Interstate Commerce Commission 
the power under those general rules to 
decide what rates are unreasonable or 
discriminatory, and indeed to fix rates 

In the argument by senators against 
the power of the Senate to agree that 
the President alone might formulate the 
specific agreement, much reliance was 
placed on the decision of the Supreme 
Court in Field against Clark, 145 U. S. 
In that case the Supreme Court merely 
laid down the general rule that Congress 



could not delegate legislative power, and 
then held valid a provision in the Mc- 
Kinley tariff act which authorized the 
President to apply one or another set of 
duties to the imports from a foreign 
country as he decided whether the cus- 
toms laws of that country were "recip- 
rocally unreasonable" toward us. The 
case, instead of helping the contention of 
the Senate, made strongly for the view 
that giving the President the power to 
make the specific agreement was not an 
unlawful delegation. 

The Hay treaties of general arbitration, 
as I have said, excepted from the issues 
of a legal nature to be arbitrated "ques- 
tions of national honor and vital inter- 
est." Who could tell what were not 
questions within these exceptions? It 
left a discretion in each party to insist 
that any question concerned its honor or 
vital interest. Lord Russell, when first 
approached as to the possibility of arbi- 



trating the issue growing out of the Ala- 
bama claims and the mulcting of Great 
Britain for her failure to perform her 
international duties, said that she could 
not admit that she had ever failed in 
that regard, and that it was a question 
of national honor which she would not 
submit to arbitration. And yet she did, 
and not only did she submit it to arbitra- 
tion, but she paid the judgment of $15,- 
500,000 rendered against her by an in- 
ternational tribunal. 

The exceptions of the Hay treaties were 
so broad and general that the action 
of the Senate in declining to allow the 
President to make the specific agree- 
ment under them could be strongly de- 
fended on the ground that the treaties 
did not sufficiently define any class of 
questions and therefore that the specific 
agreement would be the only real treaty. 

A treaty of arbitration is for the pur- 
pose not only of settling disputes, but 

[ 100] 


its main function is to prevent those 
disputes from resulting in war. A coun- 
try is not likely to go to war except on 
an issue that involves its honor or its 
vital interest. Therefore, a treaty that 
excludes such questions from arbitration 
is not a treaty that covers the critical 
issues from which wars spring. I there- 
fore determined, if I could, to negotiate a 
treaty that would leave out those excep- 
tions and include all questions that could 
be arbitrated. 

There are many questions between na- 
tions that concern the welfare of both, 
with respect to which, under any system 
of international justice, a nation must 
have absolute discretion and control of 
its own conduct. Take, for instance, the 
question whether England shall take part 
in our Panama Exposition. That may 
cause bad feeling in California or in this 
country generally, but no court of arbi- 
tration would make a ruling that En- 

[ 101 ] 


gland was obliged to take part in our 
exposition. That is not a justiciable ques- 
tion. If, however, England had agreed 
by treaty to take part in our exposition, 
then a right would be created by contract, 
and it would properly become the sub- 
ject of arbitration and decision. 

You cannot bring all subjects of dif- 
ference between individuals into a mu- 
nicipal court. A man may be unneigh- 
borly; he may not call on his neighbor, 
he may notify his neighbor that he does 
not propose to have the latter' s children 
come into his place ; he may do a lot of un- 
kind things that arouse the indignation of 
his neighbor and show he is a very mean 
man. But these do not give any cause 
for a suit. One cannot compel his neigh- 
bor to be generous and good and courte- 
ous by a lawsuit. In other words, there 
is a field into which courts of justice 
cannot enter, whether they be municipal 
courts in a State, or arbitral courts be- 

[ 102 ] 


tween nations, and that distinction must 
be just as clear in an international court 
as in one of our domestic tribunals. 

In the formulation of our treaties it was 
necessary to hit upon some term which 
would define, as a class, those causes of 
difference between nations that would 
constitute, under the principles of inter- 
national law, an infringement of the le- 
gal rights of another nation analogous 
to rights remediable in municipal courts 
of justice between individuals. The de- 
scription must exclude those obligations 
of courtesy and good-will that are en- 
forced only by the sanction of a national 
conscience or by the influence of inter- 
national public opinion, or by what Lord 
Haldane has referred to as Sittlichkeit, or 
international "Good Form." The anal- 
ogy between matters of domestic judicial 
cognizance and those proper to be con- 
sidered in international law tribunals is 
quite close. Mr. Knox found a phrase 

[ 103] 


that seemed to me to be most happy in 
the description of the character of ques- 
tions that should be arbitrated between 
the United States and other established 
governments if negotiation failed. He 
found it in an opinion of Chief Justice 
Fuller in a case in which the Supreme 
Court was acting as a quasi-international 
tribunal. One of the great examples of 
successful international arbitration is the 
arrangement for the jurisdiction of the 
Supreme Court under our Constitution 
in settling the controversies between 
sovereign States. It furnishes a model 
that in future generations will, I hope, 
prove to be useful in the formation 
of a general arbitral court for all the 
stable nations of the world. This case 
to which I refer was a controversy be- 
tween Kansas and Colorado as to the 
water-rights of the two States and their 
respective residents and landowners in 
a stream which began in one State and 

[ 104 ] 


ran into the other. The Chief Justice, 
speaking of the effect of the Constitution, 

Undoubtedly, as remarked by Mr. Justice 
Bradley in Hans vs. Louisiana, 134 TJ. S. 1, 
15, the Constitution made some things jus- 
ticiable, "which were not known as such at 
the common law; such, for example, as con- 
troversies between States as to boundary 
lines, and other questions admitting of judi- 
cial solution." And as the remedies resorted 
to by independent States for the determina- 
tion of controversies raised by collision be- 
tween them were withdrawn from the States 
by the Constitution, a wide range of matters, 
susceptible of adjustment, and not purely 
political in their nature, was made justiciable 
by that instrument. 185 U. S. 125, 141. 

Mr. Knox used in the treaties the 
word justiciable to describe the differ- 
ences which the parties bound themselves 
to arbitrate. Those controversies only 
would come within the term which were 
just cause for reprisal by the complain- 
ing State according to international law. 
That law grants a reprisal only when 

[ 105 ] 


a positive wrong has been inflicted or 
rights stricti juris are withheld. The rule 
which controls foreign and independent 
states in their relations to each other 
is that the primary and absolute right 
of a state is self-preservation. The im- 
provement of her revenues, arts, agricul- 
ture, and commerce are incontrovertible 
rights of sovereignty. She has domin- 
ion over all things within her territory, 
including all bodies of water, standing 
or running, within her boundary-line. 
Her moral obligation to observe the de- 
mands of comity, that is, of good neigh- 
borly feeling, cannot be made the sub- 
ject of legal controversy. In the light of 
such limitations fully recognized in inter- 
national law, the definition of those is- 
sues intended to be arbitrated is easily 
applied. The language of the treaties is: 

All differences . . . relating to interna- 
tional matters in which the high contracting 
parties are concerned by virtue of a claim of 

[ 106] 


right made by one against the other under 
treaty or otherwise, and which are justiciable 
in their nature by reason of being susceptible 
of decision by the application of the principles 
of law or equity. 

First, the differences must relate to in- 
ternational matters; second, they arise 
upon a claim of right, i. e., a right under 
a treaty or under principles of interna- 
tional law of one against the other; third, 
they must be justiciable, i. e., capable of 
judicial solution by application of the 
principles of law or equity. Those prin- 
ciples, of course, are principles of interna- 
tional law or equity. As this phrase is 
used not only in an English treaty but 
in a French treaty, the words are not to 
be confined to the technical meaning of 
law and equity as those words are under- 
stood in the jurisprudence of England 
and the United States. Still, the terms 
law and equity have a similar significa- 
tion in many countries. Ancient sys- 
tems of law grown rigid have been modi- 

[ 107 ] 


fied by applying more liberal principles 
in reaching justice. Equity has amelio- 
rated and mitigated the severity of the 
law. The two words used together, there- 
fore, were intended to comprehend all 
the rules of international law affecting 
the rights and duties of nations toward 
each other which are not mere rules of 
comity but are positive and may be 
properly enforced by judicial action. 

The first clause of the Knox treaties 
provides that such questions shall be 
submitted to the Permanent Court of 
Arbitration established at The Hague, or 
to some other tribunal agreed to by the 
parties by special agreement, which shall 
be made on the part of the United States 
by the President of the United States, 
by and with the advice and consent of 
the Senate. The second clause provides 
for the appointment of a Joint High Com- 
mission of Inquiry to investigate any 
controversy between the two parties, 

[ 108] 


whether within or without Article I, 
which investigation may be postponed 
for a year by either party in order to 
give an opportunity for negotiation and 
settlement. The Joint High Commission 
is to be constituted by each party's des- 
ignating th,ree of its own nationals to sit 
therein, with authority to vary the char- 
acter of its appointees. The action of 
the Joint High Commission is to be re- 
garded merely as advisory except in one 
case. If either party contends that the 
difference is not arbitrable by the terms 
of the treaty, the Joint High Commis- 
sion, by a vote of five to one, may de- 
cide that it is arbitrable within the 
treaty, and the decision is to bind the 
parties. Thereafter, the arbitration is to 
proceed before The Hague or other tri- 
bunal as provided in the treaty. Good 
faith under the treaty would require, in 
the event of such a decision, that the 
President and the Senate make the spe- 

[ 109] 


cific agreement required in the first sec- 
tion and proceed to carry out the arbitra- 
tion. Of course it would be within the 
power of the Senate, as, indeed, it would 
be within the power of the President, to 
decline to make such a specific agree- 
ment and thus to break their obligation 
and that of their government. 

I suggested to Mr. Knox a form of 
treaty under which either party might 
submit to the permanent court at The 
Hague its complaint against the other, 
and the court after objection and hearing 
should first decide whether the complaint 
constituted an arbitrable case within the 
first clause of the section, and if it so 
found, it should then proceed to hear and 
decide the issue made. But Mr. Knox 
felt that the time had not arrived when 
so radical a proposition as that would be 
approved by the Senate or possibly by 
the country, and therefore he suggested 
a preliminary decision as to jurisdiction 

I HO] 


by this Joint High Commission to be 
composed of three Americans and three 
Englishmen, or three Americans and three 
Frenchmen, as the case might be. I re- 
garded this as a very mild provision, be- 
cause at least two Americans out of three 
must concur in holding that the differ- 
ence in question was within the descrip- 
tion of the general class of questions 
agreed to be arbitrated before the judg- 
ment could be binding on both parties. 
The suggestion of possible danger of in- 
justice to the interests of the United 
States arising from the decision by a 
majority of five to one of a tribunal 
composed half of Americans and half of 
the nationals of the other treaty -making 
power is chimerical and imaginary. 

Such objections grow out of the un- 
willingness of the men who suggest them 
to enter into any arbitration by contract 
or treaty in advance of the happening 
of the event which gives rise to the dif- 

[ mi 


ference. Consciously or unconsciously, 
they are not sufficiently in favor of a ju- 
dicial decision of questions between na- 
tions to be willing to lay down a general 
law for arbitration or to make a general 
classification of subjects for arbitration 
and abide by it. They insist on knowing 
all the circumstances with reference to 
a particular issue before they are will- 
ing to bind themselves to arbitrate it 
at all. 

As in the consideration of the Hay 
treaties, so here it was argued that the 
President and the Senate would unlaw- 
fully delegate their treaty-making power 
if they agreed that a tribunal should 
finally adjudge that a specific difference, 
subsequently arising, was in the class of 
differences covered by the treaty. It is 
very difficult to argue this question be- 
cause the answer to it is so plain and ob- 
vious. The question whether a specific 
case arising after the general treaty is 


made comes within the language of the 
treaty is a question of the construction 
of the treaty and its application to events 
subsequently arising. Construction of a 
treaty is the issue more frequently arbi- 
trated between nations than any other. 
It is true that the question here is one 
of jurisdiction rather than one upon the 
merits of the controversy, but both arise 
in the construction of a treaty and both, 
therefore, are the normal subjects of ar- 
bitration. To leave a question arising 
in our foreign relations to arbitration is, 
of course, not a delegation of power at 
all. Delegated power is conferred on an 
agent. The tribunal does not act as 
agent but as a court deriving its power 
not from either party but from the agree- 
ment of both. The view that makes a 
submission to a tribunal a delegation of 
power to an agent would prevent the 
President and Senate from agreeing to 
arbitrate anything at all. And yet we 



have made arbitration treaties since the 
Constitution was adopted and before. 
The rightfulness of the power exercised 
under these Knox treaties to submit the 
question of jurisdiction to the arbitral 
tribunal is much clearer than was the 
power of the Senate to consent that the 
President might make the specific agree- 
ment in the Hay treaties; and this for 
two reasons; first, because in the Knox 
treaties the classification is one of clear 
definition as it was not in the Hay trea- 
ties; second, in the Hay treaties the 
President was an executive agent and 
the question of unlawful delegation to 
him alone of the treaty-making power 
fairly arose. But here the objection is 
a plain confusion of conferring power on 
an agent with submitting a judicial issue 
to a court. The only logical position 
that could defeat the right of the Presi- 
dent and the Senate to agree to submit 
to a tribunal the question whether a 


subsequent difference comes within the 
general but definite classification of ar- 
bitrable issues in a general arbitration 
treaty is the utterly untenable one that 
the President and the Senate have no 
right to submit to an international tri- 
bunal at all the decision of those inter- 
national matters that the President and 
the Senate under the Constitution are 
given power to deal with in our interna- 
tional relations. 

Nevertheless, the Senate struck out 
the provision for a decision by the Joint 
High Commission. I considered this 
proposition the most important feature 
of the treaty, and I did so because I felt 
that we had reached a time in the making 
of promissory treaties of arbitration when 
they should mean something. The Sen- 
ate halted just at the point where a pos- 
sible and real obligation might be created. 
I do not wish to minimize the importance 
of general expressions of good-will and 

[ 1151 


general declarations of willingness to set- 
tle everything without war, but the long 
list of treaties that mean but little can 
now hardly be made longer, for they in- 
clude substantially all the countries of 
the world. The next step is to include 
something that really binds somebody 
in a treaty for future arbitration. The 
treaties of arbitration are not going to 
accomplish substantial progress unless we 
enter into them with a willingness and 
a consciousness that they may involve us 
in decisions to our detriment. We can- 
not win every case. Nations are like 
individuals; they are not always right, 
even though they think they are, and 
if arbitration is to accomplish anything, 
we must be willing to lose and abide by 
the loss. If we are to establish real ar- 
bitral courts which shall be useful as a 
permanent method of settling interna- 
tional disputes, we must agree in advance 
what the jurisdiction of those courts shall 

[ 116] 


be, and then abide by their holding as to 
that jurisdiction and perform the judg- 
ments that are made against us. But 
if we assume that it is dangerous for us 
to consent to go into any arbitration, lest 
the court make gross errors in interna- 
tional law and may decide contrary to 
the principles of the law as we entertain 
them, then let us take some other method 
of settling international disputes. 

The Senate, in its conditional concur- 
rence in the arbitration treaties prepared 
by Secretary Knox, made certain reser- 
vations. The first limitation was that 
they should not authorize the submission 
to arbitration of any question affecting 
the admission of aliens into the United 
States. If there are not treaties on the 
subject, the rule of international law is 
clear and specific that no aliens can be 
admitted into a country without the con- 
sent of its government, and that no other 
nation can justly claim the right to have 



her nationals admitted to such territory. 
Why is it necessary to insert in a treaty 
of arbitration the principles of interna- 
tional law which must necessarily guide 
the action of an arbitral tribunal? If so, 
then every treaty must be an interna- 
tional code. But if the exception meant 
to exclude every question under a treaty 
affecting the admission of aliens, as it 
probably did, then it was most indefen- 

T 1 *" 

sible. If we have agreed to let in En- 
glishmen or Frenchmen or Japanese or 
Chinese by treaty, on what ground ought 
we to evade or avoid the effect of the 
plighted faith of the nation to do so? 
Why should we be afraid to have our 
promises in this regard construed by an 
impartial tribunal? In other words, is 
not this a reservation of a right to vio- 
late our own plighted faith imposed by 
the Senate as a condition of its concur- 
rence in the treaties? Was not the char- 
acter of this condition a sufficient reason 

[ 118] 


for the executive to refuse to ask the 
other powers to consent to it? 

The second condition of exclusion is 
very like the first. It eliminates from 
arbitration any question of the admis- 
sion of aliens to the educational institu- 
tions of the several States. We have 
made treaties in which we have agreed 
that the children of aliens resident in 
this country may enjoy the educational 
advantages of the children of the citizens 
of the States in which they live. Now, 
this condition was an attempt to reserve 
from arbitration the judgment of a high 
tribunal upon the question whether we 
should comply with our treaty obliga- 
tions in that regard. Why shouldn't we? 
If we make the treaty, why shouldn't we 
fulfil it? What is the object of making 
a treaty if it is not to perform it? If 
there were not a treaty giving the right 
to the children of aliens to take advan- 
tage of our educational privileges, inter- 

[ 119] 


national law would impose no obliga- 
tion on our government, or on the State 
governments either, to furnish such priv- 

The third exclusion was of any ques- 
tion of :< the territorial integrity of the 
several States or of the United States." 
Well, suppose a question of boundary 
had arisen and the issue was whether 
land claimed by a State or the United 
States under a previous treaty belonged 
to us or belonged to the other country, 
why should it not be made the subject 
of arbitration? Didn't we arbitrate the 
Alaska boundary? If we have some- 
body else's land, if it does not belong 
to us and a correct construction of the 
treaty shows that it does not belong to 
us, what objection is there to our part- 
ing with it under a judgment of the 

The fourth class of questions excluded 
was of the alleged indebtedness or mon- 

[ 120 ] 


eyed obligation of any State of the United 
States. I agree that a sovereign State 
is not obliged to allow a suit against her- 
self by any citizen or any individual, and 
that immunity from such a suit is one 
of the attributes of sovereignty. But 
the very object of international arbitra- 
tions and of general treaties to provide 
them is to do away with such immu- 
nity as between the parties. The com- 
monest form of litigated questions in an 
international arbitration is a question of 
liability of a debt of one of the parties to 
the other. 

Why should the indebtedness of the 
separate States be excluded in an arbi- 
tration by the United States with for- 
eign countries? The United States is 
the representative of the States. Under 
the Constitution the United States acts 
for and represents the whole country, 
States and all. The Federal Government 
is the only one the other nations know. 

[ 121 1 


That was what our Constitution was in- 
tended to effect. If we are in favor of 
settling controversies between sovereign- 
ties by arbitration, in order to avoid 
war, the only way we can make our 
States parties to such arbitration is 
through the National Government. It is 
said that the United States is not liable 
internationally for the debts of the States. 
That may or may not be true, but if it 
is not liable, then the arbitral tribunal 
may say so. If it is liable in interna- 
tional law then it should pay the debts 
of the States and it would have a right 
of action against the States, which it 
might enforce because it has the right to 
sue a State. Why should the sovereign 
States of our nation be represented as 
complainants by our central government 
in arbitration and not be made defen- 
dants through the same representation? 
Even the Senate did not attempt to ex- 
clude debts of the United States from 

[ 122 ] 


such arbitration. Why should the debts 
of the States be excluded? Of course, 
the treaties only affected controversies 
thereafter arising, so that past indebted- 
ness was not included within their first 
clause. I am not at all sure that it 
would not be a very wholesome arrange- 
ment to fix some responsibility upon the 
States and to give them more motive 
than they have had in the past to avoid 
repudiation of their just obligations. The 
necessary exclusion of such indebtedness 
from questions that might be arbitrated 
seemed to me to be both unnecessary and 

The final exclusion was that the sub- 
ject-matter of arbitration should not in- 
clude any question dependent upon or 
involving the maintenance of the tradi- 
tional attitude of the United States con- 
cerning American questions commonly 
described as the Monroe Doctrine or 
other purely governmental policy. John 

[ 123] 


Bassett Moore, late counsellor to the De- 
partment of State, and an international 
lawyer of profound ability and acumen, 
pointed out that the Monroe Doctrine, 
or other governmental policy of like char- 
acter, could not be made the subject of 
arbitration under the general clause of 
justiciable questions to be settled on prin- 
ciples of law or equity, and that no ex- 
ception was necessary. I did not have 
the slightest objection, however, to in- 
cluding such a restriction in the ratifica- 
tion of the treaty, and, had the condi- 
tions been limited to it, I would have 
attempted to induce France and England 
to consent to it. They had consented to 
it in other treaties, and I presume they 
would have done so here. Had this been 
the only condition imposed by the Sen- 
ate, I believe the treaties might have 
gone through. Senator Root and Sen- 
ator Cullom urged the confirmation of 
the treaties with only this condition, and 

[ 124 ] 


Senator Burton was in favor of concur- 
ring in the treaties as they were presented, 
and so was Senator Raynor; but Sena- 
tor Lodge and Senator Bacon and the 
majority of the Committee on Foreign 
Relations took the view that in some way 
or other there was an unlawful delega- 
tion of the treaty-making power to a ju- 
dicial tribunal appointed to construe a 
treaty and determine its application to 
particular facts. 

A fair argument against the wisdom 
and justice of the conditions that the 
Senate of the United States insisted upon 
in its concurrence in the treaties is the 
fact that England and France imposed 
no such conditions, and their interests 
were just as much at stake as ours in 
the making and performance of the trea- 
ties. To this Senator Lodge answers 
that we have greatly more interests than 
they have to be affected by arbitration. 
I confess I do not understand the force 

[ 125 ] 


of his argument. The border between 
Canada and ourselves is one of four 
thousand miles, and there are just as 
many legal questions affecting Canada 
as the United States, and the questions 
that affect Canada affect Great Britain. 
We have many questions with France 
and with Great Britain directly. Indeed, 
we have as many with them as they 
have with us, and, if they are willing 
to submit matters to arbitration, why 
shouldn't we? 

TVith deference to those who oppose 
these treaties I must be allowed to say 
that the real reason for defeating them 
was an unwillingness to assent to the 
principle of arbitration without knowing 
something in advance of whether we were 
going to win or lose. That spirit is not 
one that will promote the cause of arbi- 

I cannot say how much good the sign- 
ing of the treaties did. Had they gone 

[ 126 ] 


through, I believe they would have been 
beneficial in the cause of peace. The 
agitation in their favor sowed some seed 
in the minds of the American people 
that may sprout and grow into useful 
plants; but, however this may be, those 
of us who believe in arbitration as the 
means of bringing about a general arbi- 
tral court which shall settle all issues 
between nations capable of judicial solu- 
tion must continue the struggle, because 
it is right and its success will measure 
the progress of civilization. 

I have been criticised for not going 
ahead with the treaty as provided by 
the Senate's proposed amendments, and 
I am quite willing to admit that there 
is room for discussion upon that point. 
I can only say why I did not. I was anx- 
ious to make a substantial step forward 
in the matter of arbitration treaties. I 
was anxious to give a model to the world 
of a treaty that meant something in the 



matter of arbitration. A treaty grid- 
ironed with such specific and numerous 
conditions as the Senate imposed, and 
emasculated by striking out its really 
binding feature, would not offer to the 
world such evidence of progress as to 
encourage the making of similar trea- 
ties between other countries. Of course, 
neither with England nor with France 
was there need for such a general arbitra- 
tion treaty. It is hardly conceivable, 
when we consider the respective relations 
between the two countries and ourselves, 
that any difference could arise which 
would not be settled by arbitration. 
Therefore, the mere fact of making a 
treaty of arbitration with either had lit- 
tle practical or intrinsic importance upon 
the issues likely to arise between us and 
them. The treaties were important only 
as an encouragement to other nations in 
the settlement of their differences. Such 
a treaty, if really comprehensive, would 

[ 128] 


have been thus useful and influential. 
As mutilated by the Senate, it seemed 
to me it would not effect any helpful 

The discussion by senators of this 
question shows that many of them 
thought that such a proposition as that 
which I submitted to the Senate would 
in some way minimize the importance 
of the Senate in treaty making. Every 
senator alluded to the fact that in the 
constitutional convention Mr. Madison 
proposed that the Senate should make 
the treaties of the government, but that 
ultimately it was thought better to give 
the President the initiation and require 
a concurrence of the Senate by two 
thirds in treaties. Now, I am the last 
one to seek to minimize the importance 
of the Senate in either the treaty-making 
power or as a co-ordinate branch of the 
legislature. I regard the Senate as one 
of the most important and valuable fea- 

[ 129 ] 


tures of the government. With the ten- 
ure of six years for each senator, with 
the equal representation for the large 
and small States, it furnishes a check 
against too rapid and radical action. It 
has served the country well in times past, 
and will, I doubt not, continue to be of 
the utmost benefit in keeping the course 
of our government along safely progres- 
sive lines. What ought to be done by 
arbitration treaties is to bind the Presi- 
dent, the Senate, and the country to 
abide by the judgment of an impartial 
tribunal in as many cases of interna- 
tional difference as possible. 

Mr. Bryan is now engaged in making 
a number of treaties which will facili- 
tate inquiry and investigation and ad- 
visory report into differences of nations 
before war comes, and which are so framed 
as to delay hostilities though they do not 
provide for arbitration. I am glad that 
such treaties are being made. I think 

[ 130] 


that the preparation of such a report will 
furnish useful delay while it will stimulate 
the negotiation of a settlement. Of course, 
the step is a small one, but as far as it 
goes it helps. The truth is that the pro- 
vision with respect to the postponement of 
a year in the general arbitration treaties 
with France and Great Britain, which I 
have been discussing, was suggested to 
me by Mr. Bryan himself, though the 
provision for investigation and report was 
taken from The Hague conventions. 

The ideal that I would aim at is an 
arbitral court in which any nation could 
make complaint against any other na- 
tion, and if the complaint is found by 
the court to be within its jurisdiction, 
the nation complained against should be 
summoned, the issue framed by pleadings, 
and the matter disposed of by judgment. 
It would, perhaps, sometimes require an 
international police force to carry out 
the judgment, but the public opinion of 

[131 ] 


nations would accomplish much. With 
such a system we could count on a grad- 
ual abolishment of armaments and a feel- 
ing of the same kind of security that the 
United States and Canada have to-day 
which makes armaments and navies on 
our northern border entirely unnecessary. 

[ 132 ] 



THE federative trend in international 
affairs has a distinct bearing upon the 
movement toward universal peace, al- 
though, of course, the federative trend has 
been more manifest in the formation of 
governments than in its effect upon the 
settlement of international disputes. In 
respect to the formation of governments 
this trend is the tendency, on the part 
of peoples under independent sovereign 
governments fearing foreign aggression 
and wishing to avoid difficulties with their 
neighbors, to associate themselves with 

[ 133 ] 


their neighbors in the establishment of a 
common and central agency of govern- 
ment to which each is to delegate and con- 
vey part of its sovereignty. The control 
thus delegated usually covers foreign re- 
lations and the making of war and peace, 
and sometimes a part of the jurisdiction 
of internal matters. Whether the dele- 
gation of power and the structure upon 
which the federation is founded includes a 
formal means of settling differences be- 
tween the members of the confederation 
or not, it incidentally and necessarily has 
this effect. We may well emphasize the 
importance of federation in bringing 
about world peace and the utility of 
studying the historical instances of its 
application as a model for a plan by 
which independent powers shall consent 
to abide the judgment in proper cases of 
a great, permanent, impartial interna- 
tional court of skilled and just judges. 
The subject of this chapter was sug- 

[ 134 1 


gested by Mr. Holt, the editor of The 
Independent and one of the strongest 
advocates of world peace that I know. 
He thought an examination of historical 
precedent and the application of it to 
the problem he has so much at heart 
might be useful. 

The adoption of the principle of fed- 
eration in political government dates far 
back in Grecian history. Its best ex- 
ample is found in the Achaian League in 
the Peloponnesus of Greece, which, be- 
ginning in the small territory of Achaia, 
gradually grew in extent of constituent 
cities until it included most of the Pelo- 
ponnesian cities and a number of others 
in the northern peninsula. In its sec- 
ond and more perfect form, it was re- 
organized in 280 B. C. and lasted about 
one hundred and twenty-five years. It 
was formed for the purpose of resisting 
the dominion of Macedon. The mem- 
bers of it were independent municipal 

[ 135 1 


sovereignties and, in coming into the 
league, delegated to the executive and 
legislative authorities of the league, whom 
they chose, control over their foreign 
relations and the making of war and of 
peace. The historian Freeman finds many 
similarities between our Federal Consti- 
tution and that of the Achaian League. 
He points out the fact that Hamilton and 
Madison, although they studied Grecian 
history, were uninformed as to what he 
thinks the remarkable resemblance be- 
tween the federal structure of govern- 
ment in this league and that which those 
statesmen did much to frame in our fun- 
damental law of 1789. They were mis- 
led, he says, through the inaccuracies of a 
French historian, and instead of looking 
to the Achaian League, as they well 
might have done, they derived com- 
fort and suggestion from erroneous ac- 
counts of the nature of the Amphictyonic 
League as a federal council of Greece. He 

[ 136 ] 


points out, and other historians sustain 
him in the view, that the Amphictyonic 
League was nothing but an association 
of the various tribes of Greece, which, 
through their tribal representatives, met 
in a council at Delphi, where was the 
Oracle of Apollo, and there, in the in- 
terest of religion, adopted measures look- 
ing to its promotion and the preservation 
of the shrine. It was really nothing 
more than an ecclesiastical synod. Like 
not a few religious conferences, however, 
it occasionally adopted resolutions that 
touched matters that were hardly within 
its religious jurisdiction. It undoubtedly 
at times had some political influence 
through its religious importance. The 
kings of Macedon subsequently used it 
as an instrumentality in the politics of 
Greece, but it has no bearing, as Hamil- 
ton and Madison thought it did, upon 
the use of the federative principle in the 
formation of governments. Mr. Freeman 

[ 137 ] 


says: 'It is clear that Hamilton and 
Madison knew hardly anything more of 
Grecian history than what they had 
picked from the 'Observations' of the 
Abbe Mably. But it is no less clear that 
they were incomparably better qualified 
to understand and apply what they did 

The constitution of the Achaian League 
did not provide for a federal tribunal, and 
I cannot find in the somewhat lengthy 
volume of Mr. Freeman any reference 
whatever to judicial matters in the his- 
tory of federation in Greece and Rome. 
Mr. Freeman says that it was the custom 
among Grecian cities, when the inter- 
national rights of one were broken by 
another, to submit the issue to the ar- 
bitrament of a third city. Probably in 
this way the differences between the 
members of the Achaian Federation w r ere 
settled when they arose. But it is a 
thing that we must realize, though it is 

[ 138 ] 


a little hard to do so, that courts and 
judges as such having only judicial 
functions are a comparatively modern 
invention. The Book of Judges in the 
Old Testament suggests the idea that 
they must have had judges in Israel, but 
while these judges heard judicial contro- 
versies, as we know, they were really 
civil patriarchal rulers who exercised ex- 
ecutive and legislative as well as judicial 

Even in the golden era of the Roman 
Empire, when the rule of law was being 
established by law-writers and juris- 
consults, in the four centuries before the 
Code of Justinian, there were no judges 
as such. There was an executive officer, 
called the Praetor, whose business it was 
to execute the law. He was not gener- 
ally a lawyer. When he had a case in 
the execution of the law that involved a 
judicial inquiry he formulated his case 
and submitted it to a referee, who was 

[ 139 ] 


not necessarily a jurisconsult or learned 
in the law. He was called a Judex, and 
from the title given him W T C get the 
name of judge. The Prsetor was elected 
every year, so that, in spite of the great 
debt that we owe to republican and 
imperial Rome for the supremacy that 
they gave to law and its administration 
and the symmetry that they gave to 
jurisprudence, we cannot say that we 
owe to them a judicial system of perma- 
nent, learned, and independent courts. 
For that we must look to the history 
of Anglo-Saxon civil liberty, because it 
is in English history that we find the 
ultimate division of governmental func- 
tions between the executive and legisla- 
tive on the one hand and the judicial on 
the other. The term "court" is a late 
word derived from the fact that the hear- 
ing of the tribunal was heard in a court 
or courtyard. This failure to recognize 
a difference between the executive, leg- 

[ 140 1 


islative, and judicial functions manifests 
itself even now when we come to con- 
sider international relations and tribu- 
nals for the settlement of international 
disputes. I shall refer to this later. 
After the ancient local proprietary or 
manorial courts lost their jurisdiction, 
the King of England in council or in 
Parliament became the seat of all gov- 
ernmental power, executive, legislative, 
and judicial. Parliament was not only 
a legislative body but it was a court. 
Lords and Commons met originally in 
one body. Now the two bodies are sep- 
arated; the judicial function is still exer- 
cised by the House of Lords. The King 
sat in his ow^n court, which gave it the 
name of "King's Court." Edward IV 
was the last king to do so in person. 
Then the King delegated this judicial 
duty to his justiciaries, who held the 
King's Court, and attended the King 
wherever he went. This caused great in- 

[ 141 ] 


convenience in private cases, and, finally, 
in the Magna Charta that was extorted 
from King John by the Barons at Runny - 
mede, that monarch agreed that the as- 
sizes should be held at certain times in 
every county of his realm by his judges, 
so that individuals might not be put to 
the trouble of following the King about 
in his travels in order to get justice. The 
use which the Stuart kings made of the 
judges to sustain their arbitrary course 
led to a change in their tenure after the 
revolution of 1688 and the Bill of Rights, 
so that early in the reign of Queen Anne 
they ceased to hold office at the pleasure 
or during the life of the King and be- 
came judges for life and independent of 
his control. We have thus inherited our 
conception that a court is a body that 
decides cases according to the law and 
the fact, without influence by the ex- 
ecutive or even the legislative power ex- 
cept as the legislature enacts positive 

[ 142 ] 


law and the court construes and enforces 
it as a uniform rule of conduct. 

No such idea of a judicial tribunal, set 
apart and independent, prevailed either 
in Greece or in Rome, or during the 
Middle Ages, or during the Holy Roman 
Empire. It is a later conception in con- 
tinental countries. But it is most impor- 
tant that this idea of absolute justice and 
of having judges who in giving judgment 
are impartial and independent of political 
policy or legislative direction, should be 
recognized in our international relations. 

It is true that the Progressive party 
and its leaders are now seeking to destroy 
this conception, to take away the inde- 
pendence of the judiciary, to remove the 
idea of absolute justice which the inde- 
pendence of the judiciary is supposed 
to secure, and to mingle in its admin- 
istration of specific cases the desire of 
the sovereign electorate. Heretofore we 
have thought that in tracing back the 

[ 143] 


history of our liberties from Magna 
Charta through the Petition of Right and 
the Bill of Rights, the Declaration of 
Independence, which itself insists on the 
independence of the judiciary, and the 
Federal Constitution we have had some- 
thing to be grateful for in the judicial 
system which we have inherited. This 
seems a far cry from the Achaian League 
and the federative trend of government, 
but I think I can make it seem relevant 
before I get through. 

We find in the Grecian example the 
fact that men began to realize that while 
a Grecian city was capable of furnishing 
a useful and happiness-giving govern- 
ment, yet when it came to resist the ag- 
gressions of a stronger neighbor the peo- 
ple of the city must look for aid among 
those who were similarly circumstanced 
and yield something of their sovereign- 
ties to one joint federal authority for 
their protection. There have been in 

[ 144 ] 


history since that time many instances of 
federations. The Holy Roman Empire, 
theoretically and in the sonorous titles of 
the Emperor, began with Julius Caesar 
and lasted until Napoleon's time. It pre- 
sented at stages in its history an impor- 
tant phase of the federative principle for 
our present use. After the breaking up 
of the real Roman Empire by many dif- 
ferent barbarian invasions and migra- 
tions, and after the nationalizing spirit 
became stronger and before the Holy 
Roman Empire lost all its power, there 
were heated discussions as to the rela- 
tion of the Emperor to the government 
of men. The prevailing theory was that 
all secular government came from God 
through the people to the Emperor, and 
while kingdoms and dukedoms and prin- 
cipalities and the electorates whose chiefs 
elected the Emperor exercised indepen- 
dent government in their respective juris- 
dictions, they all seemed theoretically to 

[ 145 ] 


concede their subordination to the divine 
right of the Emperor in secular govern- 
ment. He was called the Emperor of 
Peace, and one of his recognized duties 
and powers was to keep the kings and 
dukes and other potentates who were un- 
der him from war. He was generally un- 
successful, but the high character of this 
duty on his part and the conception which 
the statement of the duty showed to be 
in the minds of men are interesting and 
significant. While it cannot be said that 
the Holy Roman Empire was the result of 
a federation, because in theory the Em- 
peror created Kings and princes, never- 
theless, as national life developed into dif- 
ferent sovereignties, the only relation that 
they had to the Emperor was a result akin 
to w r hat would have happened had they 
been separate entities and had then united 
in a federation for purposes that the main- 
tenance of the imperial power continued 
to serve. Mr. Bryce, in his history of the 

[ 146 ] 


Holy Roman Empire, speaking of this 
feature of the empire, says: 

With feudal rights no longer enforceable, 
and removed, except in his patrimonial 
lands, from direct contact with the subject, 
the Emperor was not, as heretofore, con- 
spicuously a German and a feudal king, 
and occupied an ideal position less marred 
by the incongruous accidents of birth and 
training, of national and dynastic interests. 

To that position three cardinal duties 
were attached. He who held it must typify 
spiritual unity, must preserve peace, must be 
a fountain of that by which alone among im- 
perfect men peace is preserved and restored 
law and justice. . . . And he was, there- 
fore, above all things, claiming, indeed, to be 
upon earth the representative of the Prince 
of Peace, bound to listen to complaints and 
to redress the injuries inflicted by sover- 
eigns or peoples upon each other; to punish 
offenders against the public order of Chris- 
tendom; to maintain through the world, 
looking down as from a serene height upon 
the schemes and quarrels of meaner poten- 
tates, that supreme good without which nei- 
ther arts or letters, nor the gentler virtues 
of life, can rise and flourish. The mediaeval 
empire was in its essence what its modern 

[ 147] 


imitators have sometimes professed them- 
selves the Empire of Peace; the oldest 
and noblest title of its head was "Imperator 
pacificus." And, that he might be the peace- 
maker, he must be the expounder of justice 
and the author of its concrete embodiment, 
positive law; chief legislator and supreme 
judge of appeal, like his predecessor, the 
compiler of the Corpus Juris, the one and 
only source of all legitimate authority. 

The result of this view of the position 
of the Holy Roman Empire in the Middle 
Ages and later on is seen in a number 
of conceptions published in those dark 
centuries. They are referred to by Mr. 
Thomas Willing Balch in a paper on 
"The Advance of International Peace 
through Legal and Judicial Means," 
which he read at the 1912 meeting of the 
Society for the Judicial Settlement of 
International Disputes at Washington. 
In 1306 a French barrister, Pierre Du- 
Bois, in a treatise entitled "De Recupe- 
ratione Terre Sancte," urged that the 
Catholic states of Europe should form 

[ 148 1 


an alliance, with the King of France at 
their head, in order to secure peace 
among themselves. Should trouble arise 
between any members of the proposed 
alliance, DuBois urged that their differ- 
ence be settled by a quasi-court ap- 
pointed ad hoc and composed of six 
members, and consisting of three eccle- 
siastics and ''three others from both 
parties." In each case the Pope was to 
be appealed to to review the decision. 
In 1461 King Podiebrad of Bohemia, 
adopting the plans of Antoine Marini, 
his chancellor, negotiated with other sov- 
ereigns for the establishment of a fed- 
eral state which was to have a federal 
congress composed of ambassadors to sit 
at Bale. And Henry IV proposed, at the 
suggestion of his minister, the Duke of 
Sully, what was called the Great Design. 
Though this was in the form of a feder- 
ation to avoid war, it was said to be not 
a genuine proposal of universal peace but 

[ 149 ] 


a plan to give France the leadership of 
Europe. Nevertheless, it seems to have 
suggested a good many real plans for the 
accomplishment of its avowed purpose. 
In 1623 a Parisian monk, Emeric Cruce, 
proposed that all sovereignties of the 
world should send ambassadors to some 
city like Venice, and that when two sov- 
ereign powers disagreed, the ambassadors 
should plead the cause of their respective 
sovereigns before the other assembled 
ambassadors, who should decide the issue, 
and the judgment was to be enforced by 
the combined power of the sovereignties 
represented in the court. Within two 
years after the publication of this plan, 
Grotius, in his epoch-making work on the 
'Law of War and Peace," urged upon 
sovereigns the convening of congresses 
for peaceable settlement of international 

For our purpose, perhaps, the most 
interesting instance of federation other 

[ 150] 


than that of our own country was the 
Swiss Republic. This federation is re- 
markable in that it was organized in the 
thirteenth century and has continued 
until to-day. It illustrates a continuous 
union of people who speak three different 
languages, in the very centre of Europe, 
and therefore in the centre of a continen- 
tal battle-ground. It was doubtless the 
result of the same desire for protection 
against foreign aggression that prompted 
the Achaian League, but it lasted longer. 
While the Swiss people differ in language 
they resemble each other in character, and 
there was a national spirit among them, 
early developed, that insisted on local 
self-government but on united action 
against invaders. Doctor Scott, in an in- 
teresting address before the last annual 
meeting of the Society for the Judicial 
Settlement of International Disputes, in- 
vited attention to the precedent of the 
Swiss Republic in the development of the 

[ 151 ] 


federation principle into a national court 
after centuries of association, and he 
quotes the following from M. Lardy, a 
Swiss diplomat, who presided in an arbi- 
tration between Russia and Turkey, 1911 : 

Is it improper for me to state that more 
than six centuries have passed since the 
first of August, 1291, when the Swiss burghers 
signed their first treaty of alliance on the 
shore of the Lake c" the Four Cantons, at 
the foot of our snow-clad Alps? On that 
memorable day which the Swiss people an- 
nually celebrate with bonfires on every 
mountain top, while all the church-bells call 
upon the Almighty to protect the Father- 
land, the Confederate Cantons made an 
arbitral pact with each other, binding them- 
selves to submit their differences to the more 
prudent inhabitants (prudentiores) of their 
valleys and creating the force needed to as- 
sure the execution of the award. For cen- 
turies Switzerland developed under the pro- 
tection of arbitration, until the day came 
when it was enabled to commit to its federal 
tribunal the decision of a large number of 
disputes of a public nature and to intrust 
the rights and liberties of its citizens to 
the federal tribunal. Will the court of The 

[ 152] 


Hague some day become the federal tribunal 
of the nations? In Switzerland, small as it 
is, centuries were required to create a per- 
manent federal tribunal and to secure its 
acceptance by public opinion. It is the part 
of wisdom to believe that many years must 
elapse before the basis of an agreement be 
found which will assure the independence of 
the various states and guarantee the moral 
heritage of every people in the universal 
concert of nations. 

It is remarkable that this system of 
arbitration, begun six hundred years ago, 
did not develop into a federal Supreme 
Court until 1845. We may sincerely 
hope that it will not take six centuries 
for the court of arbitration, established 
at the first Hague Conference, to develop 
into the arbitral court proposed in the 
second Hague Conference. 

The next federation in point of time 
for our consideration is that which we of 
the United States have offered as a model 
to the world. I pass it by, for the pres- 
ent, to come to some more recent. We 

[ 153 ] 


find in the relation of the Privy Council 
of England to three great governments 
that are an important part of the British 
Empire, instances of the trend toward a 
federal court whose authority and whose 
function are closely akin to what an in- 
ternational court should exercise. I refer 
to Canada, Australia, and South Africa. 
The compromises that were made and 
the statesmanship and patriotism that 
were shown in reaching an agreement for 
federation of the great English and 
French provinces in one Dominion of 
Canada, owning a half continent and 
containing now eight millions of people, 
form a notable history that parallels the 
struggle our ancestors made to frame and 
ratify our Constitution. Indeed, the 
framers of the Canadian federation prof- 
ited much by the lessons from our his- 
tory. The same thing is true of the for- 
mation of the Australian federation, with 
five millions of people, which in some 

[ 154 ] 


respects more resembles ours than does 
Canada. The South African federation, 
the last one formed, under the British Em- 
pire, has less of the federative principle 
and more of the direct government than 
either of the other two, or of our own. 

But in all these federations there is a 
Supreme Court which has the power of set- 
tling the questions arising under federa- 
tion law and determining the questions 
which may arise between the members of 
the federation. In each, these members 
are great states quite like our own, but 
called provinces in Canada, which carry 
on their local self-governments and ex- 
ercise an autonomy differing somewhat 
from that exercised by our States, but all 
illustrating, in a most satisfactory way, 
the value of the federative principle, by 
which the idiosyncrasies of locality and 
local tradition are given full scope in the 
provincial governments, while the general 
law of the federation, as a whole, is left 

[ 155] 


to the federative parliament, courts, and 
executive to prescribe, interpret, and exe- 
cute. Each has a supreme court which 
passes on the quasi-international relations 
between the members that go to make up 
the federation. And then what is even 
more important and more significant of 
the possibilities of a world federation is 
the judicial appeal that may be taken 
from the supreme courts of these Federa- 
tions to the Privy Council sitting in En- 
gland that acts as a supreme tribunal for 
all the quasi-independent governments of 
the entire empire. Sir Charles Fitzpat- 
rick, the Chief Justice of Canada, has 
been invited to sit in the Privy Council 
in the coming summer in a cause concern- 
ing the boundary between Newfoundland 
(which is a separate colony of Great Brit- 
ain) and the Dominion of Canada. In 
the decision of such a case it is inevitable 
that the high tribunal will administer 
the general principles of international law. 

[ 156 ] 


Coining now to our own government 
and its organization, it is entirely un- 
necessary for me to go into the general 
history of the organization of the original 
federation, the history of the adoption of 
the Articles of Confederation after the 
Declaration of Independence, or the or- 
ganization of our government under our 
present Constitution into a more com- 
pact union, making us a nation before 
the world. 

Under the Articles of Confederation, 
Congress was made the tribunal to settle 
controversies and differences arising be- 
tween the independent sovereign States 
that made up the Confederation. The 
name "Congress" indicated the charac- 
ter of the body. Congress, in the lan- 
guage of diplomacy, was a term applied 
to a meeting of sovereigns or of their am- 
bassadors for international action. Con- 
gress under the Federation was called 
upon to settle at least one State contro- 

[ 157] 


versy. That was the dispute between 
Pennsylvania and Connecticut as to the 
title of lands in the Wyoming Valley now 
in Pennsylvania. Congress selected from 
the different States a list of men from 
whom the parties were enabled to select 
a certain number to constitute the court. 
The court sat at Trenton, heard evidence 
for forty days, and decided the contro- 
versy in favor of Pennsylvania, and in 
this judgment the State of Connecticut 

In the Constitution of 1789 the judi- 
cial power of the United States was 
extended to controversies between two 
States and between a State and a foreign 
state. And these controversies were to 
be heard as original cases before the Su- 
preme Court. The Constitution also ex- 
tended the judicial power of the United 
States to any suit in which the United 
States was a party. This enables the 
United States to sue any State, and 

[ 158 ] 


the fact that the State is a party gives 
original jurisdiction to the Supreme Court 
to consider the cause. One such case has 
been tried growing out of a dispute in 
a boundary that involved the title of 
the State of Texas to Greer County. 
The question was whether Greer County 
belonged to the United States or whether 
it was a part of Texas. The Supreme 
Court heard the case and decided in 
favor of the United States, and Greer 
County subsequently became part of the 
new State of Oklahoma. It is unneces- 
sary to enumerate the number of cases in 
which the Supreme Court has been called 
upon to adjudicate between the sovereign 
States and to enforce international law 
in their controversies. Mr. Wickersham, 
when attorney-general, reviewed them at 
length in an interesting paper read by him 
before the 1912 meeting of the Society 
for Judicial Settlement of International 
Disputes. In my last chapter I referred 

[ 159 ] 


to the case of Kansas v. Colorado, 185 
U. S. 146, from the language of Chief 
Justice Fuller's opinion in which the 
term "justiciable" suggested its use in 
the general arbitration treaties to de- 
scribe the kind of controversies which 
might properly be arbitrated. In that 
case the chief justice said: 

Sitting, as it were, as an international as 
well as a domestic tribunal, we apply federal 
law, State law, and international law, as the 
exigencies of the particular case may demand. 

In the same case, reported again in 
206 U. S. 46, 97, Mr. Justice Brewer, de- 
livering the opinion of the court, says: 

As Congress cannot make compacts be- 
tween the States, as it cannot, in respect to 
certain matters, by legislation compel their 
separate action, disputes between them must 
be settled either by force or else by appeal 
to tribunals empowered to determine the 
right and wrong thereof. Force, under our 
system of government, is eliminated. The 
clear language of the Constitution vests in 

[ 160 1 


this court the power to settle those disputes. 
We have exercised that power in a variety 
of instances, determining in the several in- 
stances the justice of the dispute. Nor is 
our jurisdiction ousted even if, because 
Kansas and Colorado are States sovereign 
and independent in local matters, the rela- 
tions between them depend in any respect 
upon principles of international law. Inter- 
national law is no alien in this tribunal. In 
the Paquete Habana, 175 U. S. 677, 700, 
Mr. Justice Gray declared: 

"International law is part of our law, and 
must be ascertained and administered by 
the courts of justice of appropriate jurisdic- 
tion as often as questions of right depend- 
ing upon it are duly presented for their de- 

Mr. Wickersham calls attention to 
the fact that very few instances have 
occurred in which a foreign state has 
availed itself of the privilege of suing 
a State of the United States in the Su- 
preme Court, but he notes a case in which 
I had the honor to be of counsel, entitled 
"In re Cooper," 138 U. S. 404, in which, 
with the knowledge and approval of the 

[ 161 1 


Imperial Government of Great Britain 
and in the name of the attorney-gen- 
eral for the Dominion of Canada, an 
application was made to the Supreme 
Court to issue a writ of prohibition to 
prevent an admiralty court in Alaska 
from selling under a decree of forfeiture 
a Canadian schooner for alleged viola- 
tion of the statute of the United States 
against pelagic sealing, on the ground 
that this sealing was done beyond the 
jurisdiction of the government of the 
United States in the open seas. This was 
a very emphatic testimonial to the con- 
fidence which the British Government 
had in our Supreme Court, and the chief 
justice acknowledged it in the following 
language : 

In this case Her Britannic Majesty's 
attorney-general of Canada has presented, 
with the knowledge and approval of the im- 
perial Government of Great Britain, a sug- 
gestion on behalf of the claimant. He repre- 
sents no property interest in the vessel, as 

[ 1621 


is sometimes done by consuls, but only a 
public political interest. We are not insen- 
sible to the courtesy implied in the willing- 
ness thus manifested that this court should 
proceed to a decision on the main question 
argued for the petitioner; nor do we permit 
ourselves to doubt that under such circum- 
stances the decision would receive all the 
consideration that the utmost good faith 
would require; but it is very clear that, pre- 
sented as a political question merely, it would 
not fall within our province to determine it. 
We allude to this in passing, but not at all 
with the intention of indicating that the sug- 
gestion itself diminishes the private rights 
of the claimant in any degree. (143 U. S. 

This international recognition of our 
own Federal court brings us to the larger 
projects for world federation for judicial 
purposes which centre in The Hague. 

The federation in international matters 
took definite form in the invitation is- 
sued by the Emperor of Russia to hold 
the First Hague Conference. At that 
conference an agreement was entered 
into by the many nations that took part 

[ 163 ] 


in it, embracing all the important na- 
tions of the world, providing a so-called 
permanent court of arbitration for the 
settlement of international disputes. In 
a strict sense it is not permanent, nor is 
it a court. The agreement does invite 
each one of the signatory powers to fur- 
nish a list of competent persons from 
whom parties seeking the form of pro- 
cedure provided may select arbitrators. 
But it might better be called a perma- 
nent plan and form of procedure for 
temporary arbitrations in the settlement 
of international disputes. 

The Second Conference, however, made 
a great advance over this. It adopted 
a form for a permanent international 
prize court and framed a definite organi- 
zation of that court. It provided that 
the judges appointed by the following 
contracting parties, Germany, the United 
States of America, Austria, France, 
Great Britain, Italy, Japan, and Russia, 

[ 164 ] 


should always be summoned to sit, while 
judges appointed by the other contract- 
ing powers should sit in rotation as 
shown in the table annexed to the con- 
vention, and the same judge might be 
appointed by several of the powers. It 
provided for an appeal from the existing 
prize courts of any nation to this inter- 
national prize court and bound the pow- 
ers to abide by the result of the ap- 
peal. Of course, services of a prize court 
are called into requisition only during 
naval warfare. The prize jurisdiction is 
part of the system of legal piracy that 
continues to be recognized as within 
civilized warfare, by which private prop- 
erty of the citizens of an enemy, carried 
in trading vessels under the flag of the 


enemy, though harmless and unarmed, 
nevertheless may be captured as lawful 
prize and sold for the benefit of the offi- 
cers and men of the capturing war-vessel. 
By the present rules of naval warfare, the 

[ 165 ] 


prize has to be taken into a port of the 
country of the capturer, and there, in a 
proceeding before an admiralty court 
sitting as a prize court, the vessel and 
her cargo are adjudged lawful prize and 
sold and the proceeds distributed. It 
was impossible under our Constitution 
for us to agree to an appeal from the de- 
cision of our prize courts, whether dis- 
trict or supreme, to an international 
prize court, but instead of that we agreed 
to have the cause submitted to the in- 
ternational prize court, and if the de- 
cision of the Supreme Court or the local 
court was found to be wrong, to allow 
the international prize court to adjudge 
damages against the United States suffi- 
cient to compensate the person injured 
by the decision. Such a procedure had 
been foreshadowed in several cases in 
which the judgments of the Supreme 
Court in prize appeals had been held 
to be erroneous by an international arbi- 

[ 166 1 


tration, and an award on the basis of the 
arbitration had been made and paid by 
Congress. The international-prize-court 
provisions, although agreed upon in de- 
tail at The Hague Conference, have not 
been embodied in a convention between 
the powers because of a difficulty in set- 
tling what the law of prize is. In order 
to do this, a conference of the powers as- 
sembled in London and agreed to what 
was known as the Declaration of London, 
formulating a code of rules regulating 
the rights of neutrals and belligerents 
with respect to neutral commerce. I am 
sorry to say that England has not con- 
sented to that declaration, and her failure 
to do so has thus far made impossible the 
consummation of the very noteworthy 
plan for an international court of prize. 

But the international court of prize 
is important not for itself but because 
of what has grown out of it, to wit, 
the recommendation of the Second Con- 

[ 167] 


ference of The Hague that we shall have 
an arbitral court of justice permanent in 
its membership, with paid members, who 
shall take no part except as judges in any 
international dispute. This has failed of 
complete concurrence by all the powers 
interested, because every power wished 
to have a judge on this court, and, as 
there are forty-six signatory powers, such 
a court is impossible. Why they might 
not make the same arrangement that was 
made in the international prize court 
as to membership, is not quite clear. 
Probably a good many of the powers 
were not interested in naval warfare, and 
therefore not in the decisions of an inter- 
national prize court, while they might 
be in the decisions of an international 
court of more general jurisdiction. 

The recommendation of this Second 
Hague Conference of both courts, how- 
ever, is most gratifying, and if followed 
will constitute a long step forward in the 

[ 168 ] 


mode of settling international disputes, 
closely approximating that of settling 
controversies in our domestic tribunals. 
Attention has been called by a number 
of persons who have followed closely 
international arbitration, and who well 
understand municipal judicial systems, 
notably Mr. Knox and Mr. Root, to the 
difference between international arbitra- 
tion as it has been practised and the 
result of the submission of causes to a 
domestic court. The tribunal of arbi- 
tration has usually been composed of 
representatives from each party and an 
umpire or umpires from other countries. 
The decision resulting has too often been 
not a clean judgment of the facts and the 
law on the merits, but it has been a com- 
promise with the hope that each party 
may acquiesce in the suggestion of set- 
tlement. It is really a continuation of 
diplomatic effort to reach a settlement 
satisfactory to both parties with as much 

[ 169 ] 


gentle pressure as may be. The presence 
on the court of representatives of each 
party is calculated to bring about such 
a result. They fall into the attitude 
not of judges but of partisan claim- 
ants in the consultations of the tribunal; 
and apparently it is not expected that 
they will ever consent, or make themselves 
parties, to a judgment adverse to the seri- 
ous claims of the country which they are 
supposed to represent. I do not think it 
is too much to say that this has generally 
been the continental view. With En- 
glish and American jurists seated on the 
tribunal, exceptions have been known. 
They have generally approached ques- 
tions presented to them as members of a 
tribunal in the same way in which they 
would approach questions presented to 
them as judges in a municipal court. 
Thus, in the issue between Great Britain 
and the United States as to the Alaskan 
boundary, Lord Chief Justice Alverston 

[ 170 ] 


sat as one of the arbitrators and voted to 
decide the main question in favor of the 
United States. His attitude was very 
severely criticised, but he justified him- 
self as an English judge, and said if he 
was to be selected as a judge, he expected 
to act as a judge. So, in the seals con- 
troversy, Mr. Justice Harlan, while con- 
curring in the claim of the United States 
in one aspect, voted to reject the claim 
of territorial jurisdiction made on behalf 
of the United States and earlier set forth 
at great length by Mr. Blaine when sec- 
retary of state. 

But it may be asked why this method 
of compromise in arbitrations is not the 
best way of settling international dis- 
putes. Does it not prevent the feeling of 
bitterness that more drastic judgments 
might create in the minds of the defeated 
nations and thus will promote peace and 
good-will? I think not. A nation which 
has a good cause, or thinks it has, will hesi- 


tate to submit the cause to a tribunal that 
will in practice and by custom abate part 
of the claim, not on grounds of justice, 
but in order to satisfy the natural partisan 
feeling of the opposing party. It is a 
fearless, clear-headed, justice-loving court 
that will command the confidence of the 
nations and will induce the submission of 
claims to it. A permanent international 
court sitting with a permanent member- 
ship, and hearing case after case, will 
acquire not only a facility of decision but 
also will acquire the joint judicial spirit 
in approaching all kinds of questions. We 
cannot expect that in the beginning we 
shall have perfect results. We must an- 
ticipate the presence of prejudice in the 
court, but the longer that it exists and 
the more cases it has to decide and the 
more its decisions form a consistent sys- 
tem of law, the more confident may we 
be that it will grow into a great court for 
the consideration of international ques- 

[ 172 ] 


tions having the respect of the civilized 

The independence of the English and 
American judiciary has created I think 
it may be said without invidious distinc- 
tion a higher standard of judicial im- 
partiality because of the historical growth 
of our courts into their present attitude 
than prevails in any other countries, and, 
therefore, even in a case between England 
and the United States, I would quite as 
willingly submit the case to three English 
judges and two American judges sitting 
in a court of five as I would to a court 
consisting wholly of jurists from other 

It is very clear that if we can se- 
cure any system for a permanent court 
which shall sit to hear such cases as are 
presented to it, the number of cases 
which will be submitted and the de- 
cisions arising therefrom will be of suf- 
ficient influence to induce the submis- 

[ 173 ] 


sion of more and more cases to such an 
impartial tribunal as it will prove to be. 
The formation of the court is a most im- 
portant step, because, with the cases that 
are submitted to it, it will become an 
object-lesson. Time and time again the 
situation will arise when a government by 
public opinion of the world will be forced 
into some other method than defiant re- 
fusal to meet an equitable claim, and then, 
when such a court exists, it will propose 
submission to it of the pending question 
in order to escape from a more embarrass- 
ing solution. 

With the formation of The Hague 
Court of Arbitral Justice, as recom- 
mended by the Second Hague Confer- 
ence, for the consideration of all ques- 
tions arising between the nations of the 
world, I shall look forward with confident 
hope to the signing within a few decades, 
or a half-century (for what is such a pe- 
riod in the achievement of such a triumph 

[ 174] 


of righteousness?), of a general treaty or 
convention by all the great powers, in 
which they shall agree to submit all jus- 
ticiable controversies to this tribunal. I 
hope that they will make the convention 
in the form of a federal agreement by 
which this court shall be recognized as a 
federal court, with the right on the part 
of any nation aggrieved against another 
nation to bring its complaint into the 
court, have the court determine its juris- 
diction of the complaint in accord with the 
definition of its jurisdiction in the con- 
vention, and then summon the offending 
nation and require an answer, and after 
hearing enter judgment. Why do I hope 
for this? Amloverenthusiastic? It may 
take time, I admit, but not so many years 
as scoffers suppose. 

The usefulness of examining history 
with reference to the federative trend of 
government is to show that federation is a 
normal and natural method of taking care 

[ 175] 


of and settling, in an effective way, jus- 
ticiable questions between sovereignties. 
The theoretical power and duty of ad- 
justment of differences between nations 
by the Holy Roman Empire induced great 
conceptions such as I have described at 
a time when war was a normal condition 
between nations and peace was the ex- 
ception. It was such a conception that 
led to the urgent recommendation of 
that great international lawgiver, Grotius. 
The growth of arbitration into a federal 
court in the history of the Swiss Republic 
is another instance of the natural de- 
velopment from independence into federa- 
tion, and then from negotiation and ar- 
bitration into a federal court for settling 
differences between the federated sover- 
eignties. The international jurisdiction of 
the Supreme Court of the United States 
is another most significant model and 
points the natural historical way of set- 
tling international disputes both in the- 

[ 176] 


ory and in practice. The federative prin- 
ciple in the organization of the three great 
English federations, Canada, Australia, 
and South Africa, the establishment of 
a supreme court in each federation to 
decide between the members, and the real 
character of the Privy Council in En- 
gland in settling the judicial questions 
between^ members of the British Em- 
pire, all point more and more nearly to 
the goal we seek of a world federation 

But it is said: "If this federative trend 
of government has existed since Grecian 
times, and was recognized in the Middle 
Ages, in the days of Charlemagne and 
Henry the Fowler and Frederick Barba- 
rossa, why has it failed in the long time 
which has elapsed since then to develop 
into the court you seek? Why may you 
expect now more rapid progress after cen- 
turies of delay?" One reason is the suc- 
cess of the use of federal courts in settling 


differences really inter-sovereign, if I may 
coin a word, as seen in these modern fed- 
eral governments, and a further reason is 
that the whole world is aroused to the ad- 
vantage of peace, as it never has been be- 
fore. Nations of the world are growing 
closer and closer to each other. Facility 
of transportation and facility of commu- 
nication have developed a knowledge and 
an interest among the people of one coun- 
try in the doings of the people of another 
that was never known before. We fol- 
low with close attention the Ulster con- 
troversy, the political tragedy in France, 
the trial involving the military conduct 
of army officers in Alsace, the Jewish per- 
secution in Russia, the parliamentary 
proceedings in China, the overthrow of a 
party in the responsible parliamentary 
government of Japan. We may be sure 
that peoples of other countries, with equal 
facility, follow the important events in 

[ 178] 


this country. Money is being poured into 
the coffers of our missionary societies for 
the purpose of promoting Christian civ- 
ilization throughout the Orient and in 
Africa to give us in those countries ad- 
vance agents and pioneers representing al- 
truism and the promotion of true religion. 
The united spirit of search for truth and 
the promotion of world brotherhood shown 
in the universities the world over, and the 
gradual forming of a world public opin- 
ion, of higher moral standards, all create 
an atmosphere in which we may be sure 
this federative trend in international mat- 
ters will be fostered and encouraged to 
extend to the creation of a federal world 
court whose judgments nations will ulti- 
mately regard as binding in the same sense 
as those which domestic courts render. 

But the query is made: "How will 
judgments of such a court be enforced; 
what will be the sanction for their execu- 

[ 179 ] 


tion?" I am very little concerned about 
that. After we have gotten the cases 
into court and decided and the judgments 
embodied in a solemn declaration of a 
court thus established, few nations will 
care to face the condemnation of inter- 
national public opinion and disobey the 
judgment. When a judgment of that 
court is defied, it will be time enough to 
devise methods to prevent the recurrence 
of such an international breach of faith. 

Undoubtedly when such a court is es- 
tablished, and a series of judgments have 
been delivered, these will constitute great 
and valuable additions to international 
law. The controversies will invite appli- 
cation of recognized principles to new 
facts, and the variation that new applica- 
tions will involve will widen the law, and 
the court will be an authoritative source 
for its growth and development. It will 
be judge-made law, and the growth of the 

[ 180] 


international law will be as the common 
law has grown, adapting itself to new 
conditions and expanding on principles of 
morality and general equity. 

It is, therefore, federation to the extent 
of a permanent international court that 
offers the solution of the problem of how 
to escape war, how to induce nations to 
give up the burden of armaments, and 
how to broaden and make certain our 
system of international law. It will be 
natural with a court thus established, 
and with the closer union that it will 
necessarily bring between the various 
powers of the earth, that congresses of 
nations shall be called at convenient pe- 
riods, in which, by treaties, an interna- 
tional code may be adopted to meet the 
defects in accepted international law 
which the issues and judgments in the 
arbitral court may develop, and which 
the judicial discretion of such a tribunal 

[ 181 ] 


may not be broad enough to supply. 
Such a court and such a code will greatly 
promote justice in the world and the 
peace of nations. 

[ 182] 
















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