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Mr. Seward then addressed his definitive note to the French Government, in which he said :
It has been the President's purpose that France should be respectfully informed upon two points: first, that the United States earnestly desire to continue and cultivate sincere friendship with France; secondly, that this policy would be brought into jeopardy unless France could deem it consistent with her interest and honor to desist from the prosecution of armed intervention in Mexico to overthrow the domestic republican government existing there, and to establish upon its ruins the foreign monarchy which has been attempted to be inaugurated in the capital of that country.
This brought the French expedition to an end. All the Imperial troops were withdrawn, and the undertaking was abandoned within two years from that time.
That incident led to a practical test of the international force of the Monroe Doctrine—its effect upon the minds and policies of foreign statesmen. It was a tacit admission also of its validity under the circumstances presented at the time by the case of Mexico, for France abandoned her expedition and gave up the thought of planting a monarchy on American soil.
The apparent contradiction involved in this was, that she yielded to its mandates whilst refusing to recognize it either as international law or international right. For, the European jurists are almost unanimous even now,- including amongst them both the French and English writers,-in declaring that the Doctrine is untenable and not binding by the accepted rules of law.
One of the most distinguished of the modern British international lawyers has said, for instance, that the United States could not by declaration effect the international status of lands claimed, ruled or discovered by other Powers. They might proclaim in advance
*Mr. Seward, Secretary of State, to Mr. Bigelow, Minister to France, 16 December, 1865.
5 The Monroe Doctrine, W. F. Reddaway, Cambridge, 1898. See also La Doctrine de Monroë, Maurice de Beaumarchais, Paris, 1898; Sir Frederick Pollock, "The Monroe Doctrine," The Nineteenth Century, October, 1902; Merignhac, “La Doctrine de Monroë, à la fin du XIXe siècle," Revue du Droit Public et de la Science Politique, 1896, p. 206; Les Etats-Unis et la Doctrine de Monroë, Hector Petin, Paris, 1900; Die Monroedoktrin in ihren Beziehungen zur amerikanischen Diplomatie, Herbert Kraus, Berlin, 1913, pp. 360-61.
the policy which they would adopt when such questions should arise, but no unilateral act could change the law of nations. He asserts that it is a very vague declaration of policy, and in no way a formulation of rules prevailing between states. From the first word to the last, it is a declaration of the policy of a single Power.
And so, in fact, it is,—the policy of the Government and the people of the United States of America. Whilst they last, it will last.
Nor have the European governments formally recognized their obligation under the Monroe Doctrine, or our right to enforce it. For, even in the present Versailles Treaty of Peace with Germany, the most that they have been willing to concede has been to refer to it as a "regional understanding." Article 21 of the League of Nations provides that: “Nothing in this Covenant shall be deemed to affect the validity of international engagements, such as treaties of arbitration or regional understandings like the Monroe Doctrine." A statement so non-committal that it is difficult to ascertain what meaning it may have at all in relation to the Monroe Doctrine; since its validity is not in the least defined by it, nor does it set forth who, if any, of the contracting parties is bound by the principles of the so-called “regional understanding,” or who is a party to it.
If they refused to recognize its validity, and the engagement into which they enter now provides that the Covenant shall not affect that validity, then, evidently, they remain where they were before, and are in no wise further bound.
But, on the other hand, we have remained where we were before. The determination of the American people responds still, as it did a hundred years ago, to the declaration in President Monroe's message that:
It is impossible that the allied Powers should extend their political system to any portion of either continent without endangering our peace and happiness. . . . It is equally impossible that we should behold such interposition in any form with indifference.
I do not know how to express the American public feeling so well as to repeat what Daniel Webster said in regard to it when addressing the Senate in 1826:
It [the Monroe Doctrine) has been said, in the course of this debate, to have been a loose and vague declaration. It was, I believe, sufficiently studied. I have understood, from good authority, that it was considered, weighed, and distinctly and decidedly approved, by every one of the President's advisers at that time.
Our government could not adopt on that occasion precisely the course which England had taken. England threatened the immediate recognition of the provinces, if the allies should take part with Spain against them. We had already recognized them. It remained, therefore, only for our government to say how we should consider a combination of the allied Powers, to effect objects in America, as affecting ourselves; and the message was intended to say, what it does say, that we should regard such combination as dangerous to us. Sir, 1 agree with those who maintain the proposition, and I contend against those who deny it, that the message did mean something; that it meant much; and I maintain, against both, that the declaration effected much good, answered the end designed by it, did great honor to the foresight and the spirit of the government, and that it cannot now be taken back, retracted, or annulled without disgrace.
It met, sir, with the entire concurrence and the hearty approbation of the country. The tone which it uttered found a corresponding response in the breasts of the free people of the United States. That people saw, and they rejoiced to see, that, on a fit occasion, our weight had been thrown into the right scale, and that, without departing from our duty, we had done something useful, something effectual, for the cause of civil liberty.
THE SANCTION OF INTERNATIONAL LAW
By RONALD F. ROXBURGH
Of the Middle Temple, England, Barrister at Law EVERY satisfactory definition of law implies a sanction. Some penalty must be imposed upon a law-breaker, to be exacted, in the last resort, by external power. Force, therefore, is vital to law as it is to war, though normally it plays a less obvious part. A felon who is brought up for trial, condemned, and sent to prison, is induced by force, or by the fear of force, to submit to the court and to punishment. The policeman and the warder are the instruments of external power by which he is constrained to obey.
Force also supplies the most important incentive for securing obedience to law. It is true, as Maine pointed out, that for every man who keeps the law through conscious fear of punishment, there may be hundreds who do so as it were instinctively, and without a thought on the subject. But while this law-abiding spirit, which is characteristic of large sections of a modern community, owes its origin to a number of causes, perhaps the most potent of all has been the enforcement of law through long ages in the past.
But the power which stands ready to enforce the law in every ordered state, and diverts many would-be offenders from their purpose, itself came into being by the will or consent of the dominant part of the community, and relies for its support on their continued consent. Historically examined, the sanction of law did not, of course, spring into being fully armed in response to some clear call from the community. On the contrary, "the farther we penetrate into the primitive history of thought, the farther we find ourselves from a conception of law which at all resembles a compound of the elements which Bentham determined,” 5 and it is desirable to emphasize incidentally the voluntary and arbitral character of much of the early administration of law. But properly interpreted, history does not belie the proposition that the complex process of development resulting in a modern community in the general enforcement of law by regular and irresistible action cannot be dissociated from the successive steps by which states have come to desire such laws and their enforcement. New rules will only be put into operation? if they meet with the general approval of the members of the community for the time being; rules which have come down from the past will fall into disuse, if they have ceased to enjoy general acquiescence.
1 Für das Feuer ist das Brennen nicht wesentlicher als für das Recht die Erzwingung seiner Befolgung. Jhering, Zweck, I, 321, quoted by Holland, Jurisprudence, 11th ed., p. 42.
2 Legum eas partes quibus pænas constituimus adversus eos qui contra leges fecerint sanctiones vocamus. Justinian, Inst., II, i, 10.
3 "Those persons against whom the state administers justice are commonly so completely within its power that they have no choice save voluntary submission and obedience. It is enough that the state possesses irresistible force and threatens to use it; its actual use is seldom called for.” Salmond, Jurisprudence, 3rd ed., p. 97. 4 International Law, p. 50.
It may be a difficult matter to ascertain the precise degree of general consent which any particular rule, or indeed any system of laws, enjoys at any given time. In every state there will be some who strongly uphold the law, some who consent to its enforcement, some who acquiesce, and some who long for its overthrow; but the strength of these parties cannot be measured merely by counting their supporters. Individuals differ, not merely in their opinions, but also in their opportunity of giving effect to them; and so it happens that an existing government or administration can continue to exercise its functions, within certain limits, after it has lost the support of the majority of the community. But putting aside such considerations, and leaving out of account the inherent power of resistance to change found in every established order of things, it may be stated as a general proposition that a law or system of laws will be enforced so long as the weight of public opinion behind it is greater than that in favor of its overthrow, and not much longer.
5 Maine, Ancient Law, 10th ed., p. 7.
7 “Public opinion, which is the ultimate sanction of all law.” Hall, International Law, 6th ed., p. 15. Cf. also Oppenheim, International Law, I, p. 16.