Chapter III: Part 3

Perchance we sniff complications with Japan. Yet we have received diplomatic assurances from that quarter which should leave us reasonably easy. But if our sense of prudence is so strong that we must provide for emergencies, let us cast about for means which do not spell danger We shall not have to look far, nor ponder much. For securing our country against future catastrophe, there is an obvious method, much cheaper, more effective, and less jeopardous than army-building. It is simply a promotion of that principle whose presence is really the cause of Germany’s greatness and whose decay is the most ominous of England’s menaces: national spirit. Let us not posit the safety of our country in the hands of 120,000 paid soldiers. As patriots, each and every one of us should keep the precious spirit of the nation aglow in his own breast. Then, if disaster threatens, we shall meet it in a phalanx against which it can but patter in vain. Millions, armed with disinterested love of country, are much more mighty than thousands, equipped with perfunctory training, brand new guns, and nicely burnished swords. For, the security of our land is in ourselves, not in our army. When the Spanish-American War burst upon us, we were, so far as militia goes, unprepared, but, in point of national spirit, we were practically a unit. Like magic, unity made soldiery appear. The call for volunteers was answered by many more than could be accommodated. If we are now as united as we were then, why are we fearfully clutching about for new defences? If we are not, let us earnestly endeavor to be. The condition of England is a darkly significant example to spur us on. In her hour of greatest trial, those on whom she chiefly relies for sustenance, her seamen, have leapt at her throat, demanding what she is ill able to give. They fervidly argue that their increased risks should and must be renumerated with increased salaries. They prefer a fat pay-roll to their country’s welfare. Much will England’s vast navy and great army avail her, if her children thus fall away from her best interest and from each other. Heaven forbid that any similar division should obtain in America during time of public distress! To prepare against it, is by far more prudent, serviceable, and necessary, than to rear armies.

In fine, let us not insult the Peace with which our land is blessed, by presenting it with arms!

THE WAR STATE

BY
WINTER RUSSELL

The war state stands before us to-day proud and unafraid. It is however self-conscious. To use the figures and similes of Carlisle in his “Characteristics” like Doctor Kitchener, it has a good system. It is not like the Indian war state that knew no other kind of state and therefore didn’t realize that it had a system nor was it like Countryman and “had no system.” The war state to-day has a system and it glories in it. Its rules are God’s laws and man’s vices and crimes are its virtues. It knows its purposes which it says are divine.

Those purposes are first to secure order within, second to make war without. It might almost say that its purpose is to make war without. In no sense of the word does it make war without so that it can keep order within. Its purpose therefore is to make war for it keeps order within so it can better make war without. It might almost say, in fact, it does say that if it did not make war it would have no right to exist. If it doesn’t make war better than another it has no right to exist. It makes war that it may grow, that it may develop, that it may progress, that it may enlarge itself. It ceases from war for the time being only that it may prepare to make war again. War is its health, its vocation. Its provisional peace is its novitiate, its apprenticeship, its years of training. Should it cease to grow and enlarge itself, it would thereby cease to be healthy and true to its main purpose.

An axiom with many people is that the truth or falsity of many if not all contentions can be found by magnifying them or trying to make them universal. If the contention of the world state is valid this axiom would seem to have found its Waterloo, for it is obvious that if the perfect war state is ever achieved it must constantly grow, it must extend its boundaries continuously. When the war state shall have reached its zenith it will fall into the inevitable decay and degeneration that comes with peace, unless it should divide the World state up into tiny and imperfect war states and begin over again the centuries which were spent in warfare, to see from which centre of the globe the new war state shall spread itself. For it is apparent that since war is necessary, a world of peace would almost be worse than no world at all.

If wars cannot come with the inevitableness with which astute ministers try to clothe them they must be consciously and openly caused merely for the sake of having war.

It may be said and it indeed often is that such a conclusion is impossible, that no constantly growing war state can evolve. War’s spokesmen say that power too widespread places the beneficent uses of conflict beyond the reach of the majority of such a state and malign peace causes inner decay. Eternal bloodshed it would appear is the price of national health. And several hostile war states must forever rock progress in its crimson cradle.

This presents to us the other horn of the logical dilemma. All states owe it to themselves and to the world to become thoroughly militarized. Hatred and rivalry must be constantly cherished. Socialism’s dream of an international brotherhood that has beguiled the hearts of many who fear most of its other principles is indeed only a dream to be dispelled when the State’s real function is exercised.

Iron, hinting its own scarcity, must be primarily used for Busy Berthas, submarines and breast piercers. Motor trucks which it was hoped were to be the disseminators of food and strength are to become the swift germs of international disease.

Much of the ever-growing spring of inventive geniuses must be turned from its natural channel of construction to flow through the ways of death and destruction. The works we glory in in times of peace must become the enemies of life. Ships that float upon the bosom of the air deal their horrible and flaming shafts. The dove-like aeroplane becomes the eye of the army dragon.

War states shall build this commerce but to destroy it as children knock down their toy houses. Philanthropists shall attempt to soften and heal the sore spots of society but to see the nations’ statesmen tear and rend the living flesh, leaving ulcers that cannot close for years.

The war state of course has satisfactory reasons for making war for growth and development. It must make war to spread its civilization and destroy other civilizations. There could be no concert or symphony of civilizations properly speaking. Civilizations serve their purposes only as they die and pass away. The myriads of philanthropists, social workers, statesmen and jurists in various states that have not received the gospel of war are not building for all time. They are building primarily to render more glorious the victory of the war state. Artists that create, architects that build are only making structures whose rôle in man’s history is to be noble ruins.

Physicians and scientists shall study man’s body, make warfare upon his unseen enemies, plan and plot the life of health, spend years in study and research, that they may save a few from the plagues of typhoid, of pneumonia, consumption and the other afflictions of man’s body only to see man’s latest death dealing toy destroy in seconds the healthful tissues it has taken years to build. They shall see their systems of sanitation and hygiene fall like a phantom castle in the air. Disorder, rapine and lust shall spread more disease than health boards could cure or prevent in a decade, and last of all they shall find themselves marshalled and arrayed as one of the brigades in the cohorts of death.

The students of sociology and of economic reform will plan and contrive systems of life that shall create and preserve the rights and property of all only to see them swept away as the tidal wave sweeps away a city in its ruthless coming on. Education realizing as it does that its purpose is not only to instruct but to nourish and tutor the soul, to win the mind to love and inspiring thoughts, sees its gentle years made worse than wasted by the hours of passion and hatred that lengthen into weeks, months and years of war. It sees its histories made hateful and horrid with the tales of grief and death. Seeking in some small way to assist the church in its work of winning love for one’s neighbor, it has to place upon its shelves the stories that engender hate and fear. Not the good things that our neighbors have done us but the ill that we have done to them and they have done to us are made the subject of story and glory. Art is conscripted to herald forth the might, majesty and mystery of hell, caparisoned in all the trappings of death’s glitter and brandishing the latest implement of pain. Poetry’s sweet notes become rasping and strident as they reiterate the tales that should only be told or sung by the furies and witches of Hades.

Two thousand years ago we were told that no man could serve two masters and yet the apologists of war tell us with astounding frankness that the morals of the state and of the individual not only can but should be different. Man can at the behest of state, wound, maim, tear, and kill, he may commit rape, robbery, arson and murder and yet be virtuous. He can do this and still be expected to go back to his home and be as noble and loved a rational creature as he was before. While he is doing this and spreading misery, those whom he has left behind for a time or forever are also ennobled and inspired and those to whom he comes, whose villages are crushed by shot and shell and rendered a flaming sacrifice on the altar of war, are taught the power of godlike soldiers. The time will come, however, when we shall realize that man cannot serve not only God and Mammon but he cannot serve God and Mars. Who knows but we are simply awaiting the scientist who shall show the unerring and uninterrupted flood from the horrors of war to the criminal years of peace. The seeds that we sow in the years of hatred and pain bring forth the fruit that fill our prisons and render our normal life so fretful and feverish.

The war state tells its people to forgive and forget, to coöperate, to sacrifice, to be unselfish and yet it says to its people: “You as a unit shall not coöperate, you shall fight, you shall not forgive and forget, you shall cherish revenge and nourish the passion to retaliate. You shall not as a people make sacrifices, you shall take from others and make others sacrifice.” Either Mars or God, must and will at length prevail. The world cannot forever serve them both.

The war state is to its neighbor as the robber is to the unprepared banker. The war state says: “You have had years to prepare for war and you have not prepared. You have put your strength to the uses and arts of peace, you have developed the mind and the spirit of your people and since you have neglected its iron body you must render tribute unto me.” So a robber might say to a bank president: “You have had time to build your vault of steel and install your burglar alarms yet you have not prepared and I have come with my revolver and lantern to deprive you of your well earned gain. I shall deprive you even of the earnings of the poor that have been entrusted to you, for might makes right and force is the power that rules the world.” The pugilist might as well say to the college president: “You have had years to develop your muscles, and to perfect yourself in the art of fisticuff and self-defense and you have neglected it, therefore I shall assume your position and if you like it not I shall give you a knockout blow and drag you from your college office.”

A world of harmony, a world that shall in truth know the music of the spheres will not be known until it becomes a world of forgiveness, of international coöperation and sacrifice. As difficult as it was and long as it took, the modest forgiveness that has marked the relations of the North and South and the wholeness that has blessed that forgiveness and coöperation is an unquestionable witness to the virtue and necessity of applying to peoples and states the same virtues and the same ethics that we apply one to another. We have got to limit not only the war state but the war man. We have got to realize that not only as individuals but as states, we are all members one of another. Nationalism is in its best sense, a virtue just as individualism is in its best sense a virtue. The individual should give to the world the best that is in him and so should the state, but no more can a state give it by making war than can a man by being an enemy of his fellows.

Much of the nationalism that we hear about is worse than useless because it engenders hatred and nourishes pride. Who to-day thinks that Hayne’s ideal was higher than Webster’s? What is there in being a South Carolinian, or of the State of Massachusetts, so important as being a citizen of the United States or what is there about being a citizen of the United States so glorious as being a brother of all mankind?

PEACE THROUGH ECONOMIC PRESSURE

HOW COMMERCE CAN BE AN EFFECTIVE FORCE BEHIND THE WORLD
COURT—ADDRESS DELIVERED BEFORE THE WORLD COURT CONGRESS
IN CLEVELAND ON MAY 14TH

BY HERBERT S. HOUSTON

DELEGATE TO THE CONGRESS FROM THE CHAMBER OF COMMERCE OF THE
UNITED STATES

The President of the United States has spoken in strong, sane words, in the message to Germany published this morning, and the country will be behind him and with him to a man. In the clear logic of a great mind the distinction is made that no agency of warfare should be employed that, by its own limitations, cannot respect the accepted rules of war. That argument I believe will be accepted by the neutral nations and ultimately by the world. In effect, it is a declaration that if there is to be war it must be conducted according to the rules of the game, according to the rules and limitations which Germany and the other nations of the world have set up through the centuries.

TO ESTABLISH A WORLD COURT

But, gentlemen, this Congress stands for a bigger thing than the rules of war—it stands for the rules of peace. It represents a serious endeavor to establish a World Court that shall ultimately bring about the end of war. The thing that has struck me in this Congress from the opening day is its upright downright seriousness. It is essentially a Congress of ways and means. The desirability of peace, the absolute necessity of peace in a world that claims to be civilized is taken for granted—no one discusses it. What everyone is discussing instead is a sane, wise plan of securing peace. Ex-President Taft in his unusually able state-paper has proposed a plan for a World Court; Judge Parker has endorsed it in his address; a great banker like Emerson McMillan has outlined a plan by which the members of such a Court can be chosen; William Dudley Foulke in his scholarly paper last night proposed a plan of orderly progress for a League of the Nations, following the analogy of our own Confederation and our own Constitution; and James Brown Scott, in the able address we have just heard this morning, has pointed out the present status of the Hague Tribunal and shown how we can go forward from the point of great accomplishment that the world has already reached.

THE FORCE TO PUT BEHIND THE COURT

In much of this discussion reference has been made to the power to put behind a World Court in order to make it effective. Now I wish to speak briefly of economic pressure as the most truly international force and as the most efficient possible force to put behind this proposed World Court. That great leader and teacher of Ohio and the country, Dr. Washington Gladden, said to me yesterday, “The world on the old basis is bankrupt. It must be reorganized on a new basis.” Appreciation of that fact, it seems to me, is the chief significance of this Congress. And the world can be reorganized on a new basis if it will avail itself of one of its greatest forces, the force of international commerce, which can be applied as economic pressure to establish justice and to serve civilization.

GREAT POWER OF ECONOMIC PRESSURE

Let us briefly examine economic pressure. Of what does it consist and how could it be applied? The most effective factors in world-wide economic pressure, such as would be required to compel nations to take justiciable issues to a World Court for decision and to submit to its decrees, are a group of international forces. To-day money is international because in all civilized countries it has gold as the common basis. Credit based on gold is international. Commerce based on money and on credit is international. Then the amazing network of agencies by which money and credit and commerce are employed in the world are also international. Take the stock exchanges, the cables, the wireless, the international postal service and the wonderful modern facilities for communication and inter-communication—all these are international forces. They are common to all nations. In the truest sense they are independent of race, of language, of religion, of culture, of government and of every other human limitation. That is one of their chief merits in making them the most effective possible power, used in the form of economic pressure to put behind a World Court.

INTERNATIONAL CLEARING HOUSE PROPOSED

Business to-day is really the great organized life of the world. The agencies through which it is carried forward have created such a maze of interrelations that each nation must depend on all the others. A great Chicago banker, John J. Arnold, Vice-President of the First National Bank of that city, said to me this week that so closely drawn and interwoven had become the economic net in which the world was immeshed that if the great war could have been postponed four or five years it would never have swept down upon men like a thunderbolt of destruction. As an additional strand of great strength in the warp and woof of modern progress, Mr. Arnold believes that an International Clearing House will come—in fact that it is an inevitable development in international finance. It was my privilege to hear him make a notable address before the last meeting of the American Investment Bankers’ Association in Philadelphia in which he proposed such a Clearing House for settling balances between nations, just as our modern Clearing Houses now settle balances between Banks in cities in which they are located. Beyond question such an International Clearing House, when established, would quickly become an invaluable auxiliary to a World Court, helping to give it stability and serving, when occasion arose, as a mighty agency through which economic pressure could be applied.

And I believe Mr. Arnold is right in his view that an International Clearing House is bound to come. Business, finance and commerce are now so truly international that there is a manifest need of it. As a strong proof of this let me remind you that when this war broke, forty per cent. of the securities of the world were held internationally.

HOW ENGLAND AND FRANCE PREVENTED WARS

Now economic pressure is not a new thing in the world. It has been used before by one nation against another and usually with tremendous effectiveness. When Philip was organizing the great armada the merchants of London persuaded the merchants of Genoa to withhold credit and moneys from the Spanish King. The result was that the armada was delayed for over a year, and then the English were prepared to meet the shock. What could be done three centuries ago for a year to delay a Power so great as Spain then was could be done in this century far more effectively. And it has been employed in this century. When the German Emperor dispatched the gunboat to Agadir bringing on the acute crisis with France, I happened to be in Paris. On the fourth day of the crisis I was having luncheon at the Grand Hotel with a young French banker of the Credit Lyonnais. I remarked on the fact that the crisis was becoming less acute and inquired the reason. “We are withdrawing our French investments from Germany,” was the rejoinder, “and that economic pressure is relieving the situation.” As we all know, it not only relieved the situation but it served as a definite means to prevent a war that seemed imminent. Now I submit that a force which England could use against Spain in the Sixteenth Century and that France could use against Germany in the Twentieth Century—in each case let me remind you a single nation was applying force against another single nation and that nation its enemy—I submit that that force can be applied by all nations collectively against another nation that refuses to settle in a World Court a justiciable issue.

THREE WAYS TO APPLY ECONOMIC PRESSURE

Economic pressure could be applied in three ways:

First: To compel nations to submit justiciable questions to the
World Court.

Second: To compel nations to submit to the decrees of the World
Court.

Third: To serve as a penalty against an offending nation for
breaking a Hague Convention.

A nation that should decline to take justiciable questions to the World Court, after having agreed with other nations to do so, would manifestly become an outlaw. Why shouldn’t other nations immediately declare an embargo of non-intercourse with an outlaw nation, refusing to buy from that nation or sell to that nation or have any intercourse whatsoever with that nation? In this connection I should like to read the resolution that I offered yesterday.

Believing that commerce as the organized business life of the
world is interdependent because international, and believing that
it can become a great conservator of the world’s peace, therefore
be it

RESOLVED, by this World Court Congress that the next Hague
Conference be urged in the interest of peace, to provide as a
penalty for the infraction of its conventions or for a refusal
to submit all justiciable issues to arbitration, that an embargo
shall be declared against the offending nations by the other
signatory nations, as follows:

1—Forbidding an offending nation from buying or selling within
their territory or territory under their control.

2—Forbidding an offending nation from raising money through the
sale of bonds, or of any other forms of debt, within their
territory or territory under their control. Be it further

RESOLVED that the President and officers of this World Court
Congress be instructed to take all possible and proper means to
secure the adoption by the next Hague Conference of this proposal
to apply the economic pressure of commerce as the most efficient,
humane and civilized means of insuring the world’s peace by
making the proposed World Court effective.

ADVANTAGES OVER INTERNATIONAL POLICE FORCE

One of the great advantages of economic pressure is that it can be applied from within, rather than from without. You will recall that Mr. Marburg, in his very interesting address yesterday, spoke of the question that has arisen in many minds as to whether military force should be put behind a World Court. As you know there has been a standing proposal for an international police force. Colonel Roosevelt has often urged the necessity for such a force with his wonted vigor. But after all isn’t this proposal, stripped, likely to turn out to be merely militarism masquerading under another name? The fighting armies abroad are composites from different countries, an actual and destructive international police force in operation right now. No gentle euphemism can disguise the grim front of Mars. Unless an international police force is subjected to the most drastic control and used under the most compelling limitations it is in danger of provoking the very war it is organized to avoid. War breeds war, as all history shows. The epigram of David Starr Jordan in a speech at the Economic Club in New York a few weeks ago, envisaged a fact, for it is true, as he said, that “when every one is loaded, some one is going to explode.” I will admit that an international police force may serve some good purpose as an international sheriff to aid in carrying forward the due and orderly processes of a World Court. But when it comes to enforcing the decrees of such a Court, I would set over against an international police force, as being incomparably more powerful and of incomparably greater ease in use, the compelling and world-wide force of commerce. Economic pressure touches the war chest of every country. Instead of fighting with bullets let us fight with the money and credit that must be behind bullets. And the world can fight in that way to protect the civilization that has been slowly and painfully built up through the centuries if it will use the force of commerce that stands ready to its hand. This force of commerce can be applied from within. Nations can declare an economic embargo against an offending nation. Or it is more accurate to say the offending nation raises an economic embargo itself by its own act in breaking its pledge to other nations and placing itself outside the pale of civilization by becoming an outlaw.

THE QUESTION OF PROFIT OR LOSS

Or course, the one apparently strong and valid argument to be brought against economic pressure is that it would bring great loss to the commerce of the nations applying it. But that loss would be far less than the loss brought by war. And there would be no loss whatever if war were avoided. Still to the automobile factories in these great Lake Cities, working over time on war contracts, to the farmer enchanted with the magic of “dollar wheat” and to those especially affected by mounting export balances an economic pressure that resulted in smaller trade may seem an astonishing measure to adopt. But ask the cotton growers who had their market cut from under them by war; consider the virtual moratorium in this country when the exchanges closed, bringing an incalculable loss in shrinkage in security values and affecting all business; consider the industrial survey made in New York and other cities during the past winter showing that unemployment had increased threefold; listen to the poignant human appeal from our Charity Organizations; at least one must grant that the shield of Mars has two sides. And it has always had two sides. But the burnished side is not that which reflects the ghastly image of war.

WHAT A TRIAL BALANCE OF COMMERCE SHOWS

If a balance could be rightly struck in this country is there any one who believes that our interests would be best served by war in some other country? This is quite apart from any question of humanity or civilization. Let it be a trial balance of commerce alone and it will show a heavy debit against war. And an accounting will show the same result in all other countries. If this be true, with only current commerce entering into the equation, how staggeringly true it becomes when the piled up debts caused by war are considered. Economists who have examined the matter state that this war has already cost over forty billions of dollars. And the end is not yet.

So why shouldn’t business, which has been binding the world more closely together for centuries, be employed to protect the world against the waste and loss of war? Hague Conferences have sought earnestly for penalties that would save their Conventions from being treated as mere “bits of paper.” Penalties that every nation would be bound to respect could be enforced through economic pressure. The loss in trade would be small or great in proportion to the amount and duration of the pressure; but it would be at most only an infinitesimal fraction of the loss caused by war.

THE WORLD COURT CAN BE ESTABLISHED

The Chairman reminds me that my twenty minutes is expiring. So let me briefly refer in conclusion to that wonderful address made by Rabbi Silverman yesterday. In it he seemed to say that religion had broken down because the war had come. As he spoke I was reminded of going across Illinois a week ago this morning. I lifted the curtain of my sleeper berth and there in a little town we were passing through stood a church with the cross shining above it in a golden radiance across the great green stretches of the valley—a scene of peace. Then I thought how the cross and the temple and the mosque were looking down that very May morning in the valleys of the Vistula, the Marne and the Rhine on guns, on soldiers and armed camps—a scene of war. Then I thought that the other strong spiritual forces of the world had not been sufficiently powerful to bring wars to an end. In the great Public Library here in Cleveland and in the Libraries of all the warring nations are the works of Goethe and Schiller, of Hugo and Balzac, of Shakespeare and Milton, of Tolstoi and Turgenieff—all imperishable contributions to the world’s intellectual life, but still they have not ended war. Your orchestras as well as those of Paris, Berlin and London, play the music of Beethoven, Tschaikowsky, Berlioz and Haydn, and music is one of the most spiritual of the arts, but it has not ended war. Painting and sculpture are part of the common heritage of mankind but they have not ended war. Isn’t it possible that the world has depended too much on these spiritual forces? By that I mean, the world has not yet been brought to the stage of civilization by these forces where it can depend on them wholly to end war. The world has had churches and schools and libraries and galleries—but the world like this great city and this country and every other city and country needs a Court House. To my mind, all these spiritual forces have been working through the generations toward a time, toward this very time, when the world would be ready for a World Court. That Court is within our grasp. What is needed is to give it force and power through economic pressure that will compel its use and it will forthwith become a mighty bulwark of civilization, protecting the world from the waste and futility and the utter tragedy of war.

THE WORK OF THE WORLD COURT CONGRESS

CONDENSATION OF AN ARTICLE BY JEREMIAH W. JENKS OF THE NEW YORK
UNIVERSITY, IN THE JUNE “REVIEW OF REVIEWS”

One of the catchwords of the great World Court Congress held in Cleveland in May was “In time of war prepare for peace.” There can be no doubt that the accumulating horrors of the present war are turning the minds of the people of all countries, neutral as well as belligerent, toward peace as never before. As the war drags on and it becomes more and more evident that there is to be no crushing victory for either side, belligerent and neutral nations alike are casting about for methods, other than the absolute weakness of a vengeful or greedy rival, that should be sure decidedly to lessen, if not absolutely to prevent, the evils of war in the future.

Mr. John Hayes Hammond, as chairman of the one hundred distinguished leaders of thought, business and government, has taken up the idea of an International Court before which the governments of the world may appear to find a solution for their international justiciable problems. It seems eminently reasonable and probable that plans well thought out may be not only acceptable, but welcomed at the close of the war, by a sufficient number of states to insure a permanent establishment of such a Court, whose decisions would settle finally all questions of a justiceable nature.

In the great meeting at Cleveland Judge Alton B. Parker, in a significant address lauded the patriotic endeavors of Former President Taft to forward the movement toward the lessening of war by arbitration treaties, and introduced Mr. Taft, whose learned and eloquent address made the plan for a World Court appear eminently practicable through its close analogy to the United States Supreme Court and that court’s treatment of the questions that are justiceable.

In subsequent meetings of the World Court Congress the growth of the judicial element in international arbitration was carefully traced. The much-disputed question of the composition of the World Court and the best form for the organization were fully treated, by Theodore Marburg, the former United States minister at Brussels, and by Mr. Emerson McMillin, of New York City, who presented a detailed plan providing for the selection of judges by an electoral college to be chosen by the different nations who should have an equal representation as regards their sovereignty, but have further representation in the electoral college in proportion to their population and the extent of their commerce.

The eloquent addresses not only stirred the enthusiasm of the great audiences, but men of statesmanlike minds were looking forward to practical definite results. Before the World Court Congress adjourned steps were taken to make the Committee of One Hundred a permanent body, and so to organize public opinion, with the aid of other associations, of legislative bodies, and of the press, that it will prove of distinct assistance to the administration at Washington, which has seemed ready at any fitting moment to support the movement practically.

UNITED STATES SUPREME COURT THE PROTOTYPE OF A WORLD COURT

BY
HON. WILLIAM HOWARD TAFT

Institutional advances in the progress of the world are rarely made abruptly. They are not like Minerva, who sprang full-armed from the brain of Jove. If they are to have the useful feature of permanence they must be a growth so that the communities whose welfare they affect may grow accustomed to them as natural and so accept them. Our so-called Anglo-Saxon civil liberty with its guaranties of the Magna Charta, the Petition of Right, the Bill of Rights, the Habeas Corpus Act and the Independence of the Judiciary, constituting the unwritten British Constitution, made our American people familiar with a body of moral restraints upon executive and legislative action to secure the liberty of the individual. The written limitations upon Colonial legislative action in Colonial charters granted by the Crown and their enforcement by the Privy Council of England probably suggested to the framers of our Federal Constitution that the principles of British Constitutional liberty be given written form and be committed to a Supreme and Independent Court to enforce them as against the Executive and Congress, its coördinate branches in the Government. The step, epochal as it was, from judicially enforcing such limitations against a subordinate Legislature under a written charter of its powers, to a judicial enforcement of the limitations imposed by the sovereign people on the Legislature and Executive that they the people had created in the same instrument, was not radical but seemed naturally to follow. The revolted Colonies after the Revolution, though united by a common situation and a common cause in their struggle with Great Britain, and acting together through the Continental Congress in a loose and voluntary alliance, were sovereigns independent of each other. The Articles of Confederation, which declared their union to be permanent, were not agreed to and ratified in such a way as to be binding until some five years after the Declaration of Independence. Meantime it had become increasingly evident that, strong as were their common interests, they had divergent ones, too, which might embarrass their kindly relations. The leagues of Greece had furnished an example of confederations of small States, forced together by a common oppressor and foe, which had found it wise to settle their own differences by some kind of arbitral tribunal. The office which the Privy Council and the Crown had filled in settling inter-colonial controversies suggested an analogy less remote than those in Grecian history and prompted the adoption of a substitute. So there was inserted in the Articles of Confederation a provision for a “court to determine disputes and differences between two or more States of the Confederation concerning boundary jurisdiction or any other cause whatever.” The complainant State was authorized to present a petition to Congress stating the matter in question and praying for a hearing. Notice of this was to be given by order of Congress to the other State in the controversy, and a day was assigned for the appearance of the two parties by their lawful agents who should agree upon judges to constitute a court for hearing the matter in question. If they could not agree, Congress was then to name three persons out of each of the thirteen States. From this list each party was required alternately to strike out one until the number was reduced to thirteen, and from these thirteen not less than seven nor more than nine names, as Congress should direct, were in the presence of the Congress to be drawn by lot, and the persons whose names were so drawn, or any five of them, constituted the court to hear and finally determine the controversy.

Proceedings were instituted under this provision before the Constitution by New Jersey against Vermont, by New York against Vermont, by Massachusetts against Vermont, by Pennsylvania against Virginia, by Pennsylvania against Connecticut, by New Jersey against Virginia, by Massachusetts against New York, and by South Carolina against Georgia. Only one of these cases came to hearing and decision by a court selected as provided. That was the case of Pennsylvania against Connecticut, involving the governmental jurisdiction over the valley of Wyoming and Luzerne county. The court met and held a session of forty-one days at Trenton in New Jersey. Able counsel represented the parties, and the court made a unanimous decision in favor of Pennsylvania, without giving reasons. A compromise is suspected, because Connecticut promptly acquiesced, and soon thereafter, with the approval of the Pennsylvania delegation, Congress passed an act accepting a cession by Connecticut of all the lands claimed by it west of the west line of Pennsylvania, except the Western Reserve, now in Ohio, which Connecticut was thus given ownership of, and which it sold and settled. A number of the other cases were compromised, and in some no proceedings were taken after the initial ones.

In the Constitutional Convention the necessity for some tribunal to preserve peace and harmony between the States was fully conceded by all, but the form of court was the subject of some discussion. One proposal was that the Senate should be a court to decide between the States all questions disturbing peace and harmony between the States, while the Supreme Court was given only jurisdiction in controversies over boundaries. Ultimately, however, the judicial power of the United States exercised through the Supreme Court was extended to “controversies between States,” without exception.

To those who do not closely look into this jurisdiction of the Supreme Court it seems no different from that of the ordinary municipal court over controversies between individuals. The States are regarded merely as municipal or private corporations subject to suit process, trial, and judgment to be rendered on principles of municipal law declared by statute of State Legislature or Congress, or established as the common law. It is assumed that the Constitution has destroyed the independence and sovereignty of the States and made the arrangement a mere domestic affair. This is a misconception. The analogy between the function of the Supreme Court in hearing and deciding controversies between States and that of an international tribunal sitting to decide a cause between sovereign nations is very close. When the suit by one State against another presents a case that is controlled by provisions of the Federal Constitution, of course there is nothing international about it. But most controversies between States are not covered by the Federal Constitution. That instrument does not, for instance, fix the boundary line between two States. It does not fix the correlative rights of two States in the water of a non-navigable stream that flows from one of the States into another. It does not regulate the use which the State up stream may make of the water, either by diverting it for irrigation or by using it as a carrier of noxious sewage. Nor has Congress any power under the Constitution to lay down principles by Federal law to govern such cases. The Legislature of neither State can pass laws to regulate the right of the other State. In other words there is nothing but international law to govern. There is no domestic law to settle this class of cases any more than there would be if a similar controversy were to arise between Canada and the United States.

For many purposes, the States are independent sovereigns and not under Federal control. They have lost the powers which the people in the Constitution gave to the Central Government; but in the field of powers left to them each is supreme within its own limits, and by the exercise of that power may trespass on the exercise of similar power by its neighbor. How is such a conflict to be settled? It may be by diplomacy, i.e., by negotiation and compromise agreement, but this under the Constitution must be with the consent of Congress. It might be settled by war, but the Constitution forbids. And the State invaded by the forces of another State can appeal to the General Government to resist and suppress the invasion, no matter what the merits of the quarrel. In other words, one of the attributes of sovereignty and independence which the people in ordaining the Constitution took away from the States was the unlimited power to make agreements between each other as to their respective rights, and the other was that of making war on each other when other means of settlement failed.

What did the people through the Constitution substitute for these attributes of unrestricted diplomatic negotiation and compromise and the right to go to war over such interstate issues? The right of the complaining State to hale the offending State before the Supreme Court and have the issue decided by a binding judgment.

Now, can the complaining State bring every issue between it and another State before the Supreme Court? No. The only issues which the Court can hear and decide are questions which in their nature are capable of judicial solution. Mr. Justice Bradley first called such questions “justiciable,” and Chief Justice Fuller and Mr. Justice Brewer used the same term. There are issues between States of a character which would be likely to lead to high feeling and to war if they arose between independent sovereignties, and which the Supreme Court cannot decide because they are not capable of judicial solution. In such cases between States of course there can be no war, because the Federal Government would suppress it. Therefore, if an amicable understanding cannot be reached, the States are left with an unsettled dispute between them and no way of deciding it. They must put up with the existing state of things.

There have been several interesting cases before our Supreme Court illustrating the character of the jurisdiction I have been describing. Chicago built a sewage canal to drain her sewage with the aid of the waters of Lake Michigan into the Desplaines River, then into the Illinois, and then into the Mississippi, from which St. Louis and other Missouri towns derived their water supply. The Governor of Illinois was empowered to open the canal. The State of Missouri brought suit in the Supreme Court of the United States to enjoin the State of Illinois and the Sanitary District of Chicago from continuing the flow, on the ground that the impurities added to the Mississippi water had greatly increased the typhoid fever in Missouri. It was held that this was a subject matter capable of judicial solution—that Missouri was the guardian of her people’s welfare and had a right to bring such a suit, and, if she made a clear case, to enjoin such use of the Mississippi and its tributaries.

Mr. Justice Shiras, in upholding the jurisdiction (Missouri vs. Illinois, 180 U.S. 208, 241), spoke for the Court as follows:

“The cases cited show that such jurisdiction has been exercised in cases involving boundaries and jurisdiction over lands and their inhabitants, and in cases directly affecting the property rights and interests of a State. But such cases manifestly do not cover the entire field in which such controversies may arise, and for which the Constitution has provided a remedy; and it would be objectionable, and indeed impossible, for the Court to anticipate by definition what controversies can and what can not be brought within the original jurisdiction of this Court.

“An inspection of the bill discloses that the nature of the injury complained of is such that an adequate remedy can only be found in this Court at the suit of the State of Missouri. It is true that no question of boundary is involved, nor of direct property rights belonging to the complainant State. But it must surely be conceded that, if the health and comfort of the inhabitants of a State are threatened, the State is the proper party to represent and defend them. If Missouri were an independent and sovereign State, all must admit that she could seek a remedy by negotiation, and, that failing, by force. Diplomatic powers and the right to make war having been surrendered to the General Government, it was to be expected that upon the latter would be devolved the duty of providing a remedy, and that remedy, we think, is found in the Constitutional provisions we are considering.”

This hearing was on demurrer. When the case came before the Court again on the merits, Mr. Justice Holmes delivered the judgment of the Court, and, while affirming the jurisdiction of the Court, pointed out the difficulties the Court has in exercising it and the care it must take in doing so. He said in the course of his opinion:

“It may be imagined that a nuisance might be created by a State upon a navigable river like the Danube which would amount to a _casus belli_ for a State lower down unless removed. If such a nuisance were created by a State upon the Mississippi, the controversy would be resolved by the more peaceful means of a suit in this Court.”

Speaking of this provision in the Constitution extending the judicial power to controversies between States, Mr. Justice Bradley in Hans vs. Louisiana (134 U.S. 1-15) said:

“Some things, undoubtedly, were made justiciable which were not known as such at the common law; such, for example, as controversies between States as to boundary lines, and other questions admitting of judicial solution. And yet the case of Penn vs. Lord Baltimore (I Ves. Sen. 444) shows that some of these unusual subjects of litigation were not unknown to the courts even in Colonial times; and several cases of the same general character arose under the Articles of Confederation, and were brought before the tribunal provided for that purpose in those articles (131 U. S. App. 1). The establishment of this new branch of jurisdiction seemed to be necessary from the extinguishment of diplomatic relations between the States. Of other controversies between a State and another State, or its citizens, which, on the settled principles of public law, are not subjects of judicial cognizance, this Court has often declined to take jurisdiction.”

A very satisfactory discussion of the scope of the power of the Supreme Court to settle controversies between States is contained in Mr. Justice Brewer’s opinion in the suit brought by Kansas against Colorado to restrain the latter from absorbing so much of the water of the Arkansas River flowing from Colorado into Kansas as seriously to interfere with the supply of water from the river for irrigation purposes in Kansas. He said (206 U. S. 95, 99):

“When the States of Kansas and Colorado were admitted into the Union they were admitted with the full powers of local sovereignty which belonged to other States (Pollard v. Hagan, supra; Shively v. Bowlby, supra; Hardin v. Shedd, 190 U. S., 508, 519); and Colorado by its legislation has recognized the right of appropriating the flowing waters to the purposes of irrigation. Now the question arises between two States, one recognizing generally the common law rule of riparian rights and the other prescribing the doctrine of the public ownership of flowing water. Neither State can legislate for nor impose its own policy upon the other. A stream flows through the two and a controversy is presented as to the flow of that stream. It does not follow, however, that because Congress cannot determine the rule which shall control between the two States, or because neither State can enforce its own policy upon the other, the controversy ceases to be one of a justiciable nature, or that there is no power which can take cognizance of the controversy and determine the relative rights of the two States. Indeed, the disagreement, coupled with its effect upon a stream passing through the two States, makes a matter for investigation and determination by this Court....

“As Congress cannot make compacts between 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 this Court the power to settle those disputes. We have exercised that power in a variety of instances, determining in the several instances the justice of the dispute. Now, is our jurisdiction ousted, even if, because Kansas and Colorado are States sovereign and independent in local matters, the relations between them depend in any respect upon principles of international law? International law is no alien in this tribunal....

“One cardinal rule, underlying all the relations of the States to each other, is that of equality of right. Each State stands on the same level with all the rest. It can impose its own legislation on no one of the others, and is bound to yield its own views to none. Yet, whenever, as in the case of Missouri v. Illinois, 180 U. S., 208, the action of one State reaches through the agency of natural laws into the territory of another State, the question of the extent and the limitations of the rights of the two States becomes a matter of justiciable dispute between them, and this Court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them. In other words, through these successive disputes and decisions this Court is practically building up what may not improperly be called interstate common law.”

Controversies between one State and another, or its citizens, which are not justiciable or capable of judicial solution find examples in the suits brought before the Supreme Court. One case of which the Supreme Court refused to take jurisdiction was Wisconsin vs. the Pelican Insurance Company (1 U. S.), in which the State of Wisconsin sought to enforce against a Louisiana insurance company a judgment rendered in a Wisconsin court for penalties imposed by a Wisconsin statute upon foreign insurance companies for failure to comply with statutory regulations of its business. It was held that neither under international comity nor law was one nation required to enforce extra-territorially the criminal law of another nation, and that therefore the controversy presented was not one of which as between the States of the Union the Supreme Court could take cognizance. Again, in Louisiana vs. Texas, 176 U. S., 1, Louisiana sought to restrain the Governor of Texas from so enforcing a quarantine law as to injure the business of the people of Louisiana. The law itself on its face was a proper one for the protection of Texas. In dismissing the suit the Court said: