Imágenes de páginas

conflict, and to remedy the evils which have arisen from its rise and


As the war power is shared between the President and Congress, but Congress does not share in the executive power, the breadth of the President's prerogatives as to the closing of a war becomes of special importance. The limits imposed directly by the Constitution are few; its main one being the requirement of the consent of the Senate. Those imposed by implication are, so far as the courts have thus far spoken, also few, but of high importance.

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.12

The preamble of the Constitution must also be considered in this connection. “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." May this be construed to include a delegation of power to declare war in order to secure liberty to foreign peoples? Our war with Spain assumed that there is such a power, and the assumption met with general public acquiescence. It was made by the President, this year, in advising the declaration of war by the United States against Germany and AustriaHungary; repeated in his public letters and addresses, and has a strong current of public sentiment in its support. In view of the general trend of opinion as to enlarging the functions of the general government, it is quite unlikely that the courts will ever take a different view.

To make a declaration of war requires the assent of Congress as well as of the President. To end a war, it is enough for him to obtain the assent of the Senate, if he acts under the treaty-making power. Peace could, no doubt, also be restored by an Act of Congress. As a declara

u Stewart v. Kahn, 11 Wall., 493, 507.

12 Ex parte Milligan, 4 Wall., 2, 120.

tion of war takes the shape with us of a statute, it would seem that it can be repealed by a statute. Its normal effect can also be subjected to limitations and exceptions resting on the authority of the President alone.

While the general and natural mode of ending a war is by treaty, peace may presumably be secured also by an absolute conquest followed by the destruction of the enemy's government. So far as concerns the United States, however, this would seem excluded by the doctrine of Fleming v. Page, unless what had been, for the time being, held as enemy's territory should be only taken to be turned over to such new government as the inhabitants might agree to institute.




The first impression that we obtain upon opening this book is one rather of surprise at the extraordinarily wide range of subjects which Mr. Root has treated in the course of his addresses and speeches on international questions, to which the volume is confined, - a range that covers the ground and sets forth the essential facts as well as the arguments which have served to build up American public opinion and to direct the international thought of this country for almost a generation. The relations with Japan, the Panama Canal, the Conferences at The Hague, the rights and duties of nations, and the protection of citizens residing abroad, have filled a large part of public attention during the last quarter of a century; indeed, some of the questions included here, like the intercourse with Mexico and the Monroe Doctrine, have held the public interest since long before our own time.

Whilst these addresses have been brought together in one general classification under the title of the present volume, they are distinguishable in fact and may be separated into two sets of intellectual production,

- and this by the method of Mr. Root himself in his treatment of them, —the one argumentative, as, for example, “The obligations of the United States as to Panama Canal Tolls," "The Treaty with Russia of 1832," the two discussions of the Ship Purchase Bill, and “The Mexican Revolution," all speeches delivered by him in his place in the United States Senate; and the other containing those thoughtfully prepared and highly finished essays presented by him on various public occasions or as presidential addresses at the annual meetings, during several successive years, of the American Society of International Law, which

1 Collected and edited by Robert Bacon and James Brown Scott. Harvard University Press, 1916, pp. ix, 463.

illustrate at once by their breadth of view and scholarship the lucid processes of Mr. Root's mind.

International law and the principles which govern the intercourse between separate and independent peoples, their specific rights and obligations as neutrals or belligerents, in war or in time of peace, supply the theme, and very naturally so, of these discourses. So that, by reading them with careful attention, the student may traverse a very large part of the whole field, we may say, of foreign relations and reap at the same time the benefit to himself of having the directly expressed opinion of a statesman by whom many of these important questions have been argued and determined, during the last twenty years, in the foreign policy of our government.

If, on the one hand, the active practice of nearly half a century in the courts of law has produced that high degree of intellectual training with which he takes up and disposes of every legal problem that presents itself to him, the mature judgment, on the other, and the experience developed through his years in the United States Senate and through his service as Secretary of War and Secretary of State in the Cabinets of two Administrations entitle Mr. Root to speak on international subjects with an authority not exceeded by any public man, certainly in America, of our day.

It is interesting to note that, at the outset, in treating of foreign relations, under the head of “The Need of Popular Understanding of International Law,” he asks for a clear comprehension of international legal questions, as also of the legally defined rights of a people. He insists too upon a conciliatory attitude toward the recognition of the rights of others in dealing with foreign states. This desirable condition, he says, is to be brought about by increasing "the general public knowledge of international rights and duties” and by promoting "a popular habit of reading and thinking about international affairs. The more clearly the people of a country understand their own international rights the less likely they are to take extreme and extravagant views of their rights and the less likely they are to be ready to fight for something to which they are not really entitled.”

International law is conciliatory, then, and pacifying as long as the rights and obligations of each party in interest are fairly weighed and

kept in view, to the ends of justice and equity; and its rules of conduct are law so long as each party submits to them with a willingness to see them applied, for, says Mr. Root:

The true basis of business is not the sheriff with a writ of execution; it is the voluntary observance of the rules and obligations of business life which are universally recognized as essential to business success. Just so, while it is highly important to have controversies between nations settled by arbitration rather than by war, and the growth of sentiment in favor of that peaceable method of settlement is one of the great advances in civilization to the credit of this generation; yet the true basis of peace among men is to be found in a just and considerate spirit among the people who rule our modern democracies, in their regard for the rights of other countries, and in their desire to be fair and kindly in the treatment of the subjects which give rise to international controversies.

It is impossible, he says, that the human mind should be addressed to questions better worth its noblest efforts, offering a greater opportunity for usefulness in the exercise of its powers, or more full of historical and contemporary interest, than in the field of international rights and


In this connection, and continuing in regard to the study and understanding of the law of nations, Mr. Root has developed his thought yet a step farther in the address which he delivered before the American Society of International Law, in 1915, entitled, “Should International Law be Codified?” the reply to which he made in his own declaration that, whilst codification is now already in process, step by step, as, for example, through the Declaration of Paris, the Treaty of Washington and the Conventions of Geneva and The Hague, "it must be pressed forward and urged by all possible means.”

The very fact that there are no courts to establish precedents and no legislatures to make laws makes this necessary [says he]. All international law is made, not by any kind of legislation, but by agreement. The agreement is based upon customs, but the ascertainment and recognition of the customs is the subject of the agreement; and how can agreement be possible unless the subject-matter of the agreement is definite and certain?

The discussion of these and similar questions, pertinent to and arising out of the legal rights or obligations of independent states, ex

« AnteriorContinuar »