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A suit of the Canton of Schwyz to the effect that the Canton of Zurich be compelled to refuse domiciliation to a national of the Canton of Schwyz who was under guardianship, was rejected by the Federal Court on October 21, 1909. Article 45 of the Federal Constitution empowers the cantons in certain cases to refuse domiciliation to persons who are not citizens of the canton.
If it pleases a canton, by virtue of its sovereignty, to grant permission for domiciliation or sojourn, even in a case in which according to Article 45 of the Federal Constitution it would be justified in a refusal thereof, no other canton has the right to protest this action (R. O. 35, I, p. 666).
At any rate, a canton in which a person under guardianship is sojourning without the permission of his guardian or competent court for the protection of wards, may under circumstances be obligated “to grant the necessary legal assistance for the execution of decrees of an extra-cantonal court for the protection of wards” (p. 666/7). Before the adoption of the law of execution of Article 46 of the Federal Constitution, the simple principle of territoriality obtained also with regard to the law to be applied in cases of inheritance. In practice the principle had been established that
in default of special contractual limitations, each canton is authorized, by virtue of its sovereignty, with regard to things located in its territory, whether they figure as individual objects or as component parts of an inheritance, to apply its legislation and jurisdiction, and that, therefore, in so far as an inheritance is located in different cantons and a conflict really exists between the different cantonal laws, the courts of each canton are in Federal law competent to decide disputes arising in matters of inheritance, in so far as the inheritance is located in the territory of the canton in question.
This principle, the court stated, follows from the fact that according to Article 3 of the Federal Constitution, the cantons, in so far as they are not restricted by Federal law, are sovereign in their territory and may, therefore, not be hindered in applying the principles of their legislation in the local law to be used, and the courts are competent in disputes concerning inheritance, so far as their territorial sovereignty extends and in so far as they do not thereby interfere with the sovereignty of another canton. But it must not be forgotten that, in case of conflict of several systems of cantonal law, the unity of the inheritance is sacrificed and important practical disadvantages arise. However, the Federal Court must, in so far as conflicts arising from the divergency of the cantonal systems of law are not positively decided by the Constitution and the legislation of the Confederation, simply follow the principle that in case of such a conflict each canton is authorized to apply the principles established by its legislation, as far as its territorial sovereignty extends, and it is not authorized, for the purpose of solving such intercantonal conflicts, to establish and apply independent positive rules, limiting the exercise of cantonal territorial sovereignty (R. 0. 7, p. 468/9).
THE NATURE OF AMERICAN TERRITORIAL EXPANSION
By Pitman B. POTTER
Assistant Professor of Political Science, University of Wisconsin
America has been commonly portrayed by American statesmen and politicians, even in fervid Independence Day orations, as a nation whose policy is ever for peace, and as a nation harboring no imperialistic aims. A certain group of thinkers or feelers have boasted of the extreme pacifism and righteousness of America in this way in order to intensify and reënforce and promote those policies for the future. These good people have hoped to see America lead the way to a repudiation of militaristic methods and the gospel of conquest. Such are the pacifists, the church people, the reformers. A second group of people have firmly believed that, in actual fact, the record compelled and imposed on them such an interpretation of American policy. They have felt that the causes were only in part the voluntary preferences of the American people, and they have seen the importance to be attached, in interpreting the American policy, to the geographical and economic conditions determining the character of American growth and policies. But to whatever cause it has been due, and largely because it can be traced back to a deeper and firmer foundation and source than mere popular preferences, these students of American foreign policy have subscribed, and still subscribe, to the belief that the American practice in the matter of territorial expansion has been characterized by a lack of imperialism, of militarism, and of a lust for conquest such as has been manifested by certain European Powers from time to time in the past. Their opinion is entitled to respect. It is, moreover, useful, even indispensable, to have an accurate idea of the quality of American foreign policy in the coming days in order not, certainly, to expect too much of America, and also, just as certainly, to be able to utilize all the potential energy for good in international politics which America may be able to provide.
The transports and boastings, and what have amounted to the spiritual excesses of those who have painted America as a pacifist and a saint among nations, have produced in certain quarters a feeling of revolt and a reaction against the traditional view of the matter. In certain cases the result is a mild, amused, somewhat cynical, somewhat wise and sophisticated skepti. cism as to the peaceable and righteous character of the American mood. In other cases the result is a flat denial of the American tradition, a
direct contradiction of its conclusions, and an attempt to place America on all fours with the other members of the family of nations on the score of territorial expansion.
Of the first sort is the case of Professor J. B. Moore, who, after taking note of the traditional pictures of American policy “as conventionalized in the annual messages of Presidents to Congress," and, he might have added, in countless public documents and private addresses, goes on to say, in his treatment of the principles of American foreign policy: “Nevertheless, in spite of their quiet propensities, it has fallen to their lot, since they forcibly achieved their independence, to have had, prior to that whose existence was declared April 6, 1917, four foreign wars, three general and one limited, and the greatest civil war in history, and to have acquired a territorial domain almost five times as great as the respectable endowment with which they began their national career." This gently implies, of course, that the conventional picture is inaccurate, at least in its emphasis or intensity.
Further still to the left we have Mr. J. A. R. Marriott, who, in a recent article in the Edinburgh Review, concludes that “the American record of expansion does not fall behind that of the principal European Powers," and that, in the words of Professor Ramsey Muir, who is quoted with approval by Mr. Marriott, “the imperialist spirit was working as powerfully in the communities of the New World as in the monarchies of Europe.”
The method of approach and the objectives of Mr. Marriott's treatment must be borne in mind. He begins by deploring that “illusions about America die hard," and that “as a rule it takes longer to kill them" in Europe than at home. He then sets out to do the killing. After following the argument for some distance in a more or less systematic way, the author begins to reorient his treatment. He is no longer interested in killing an illusion, but in portraying what appears to him now, after his review of the Monroe Doctrine, as a “new departure in American diplomacy.” He concludes that America came out of her isolation in 1895 or 1898 and began to take part in world politics. What is now felt by Mr. Marriott to be a new policy of participation in Welt-politik is portrayed as a reversal of the preceding policy. “The Zeit-Geist had proved itself too strong even for the Americans. ... During the last generation the world has become one in a sense of which no one dreamed forty years ago ... the world has shrunk; and in the process of contraction, the American, Australian, and African continents have been inevitably drawn into the maelstrom of European politics.".
Thus, in addition to the initial motive of killing an illusion in the interests of truth, Mr. Marriott is in the end simply playing a new variation upon the now familiar theme of the growing contact and inter-relation of the nations. Indeed, the latter idea bids fair to become as stereotyped
in a few years as the tradition of American isolation and pacifism ever was. Moreover, his second thesis involves somewhat of a denial of his first. If America is on all fours with the European Powers only after abandoning a policy of isolation which she is reputed to have pursued down to 1895-98, then during the preceding period she must have lived a secluded and, presumably, virtuous life. If she became worldly in 1895-98, she must have been unworldly before that time.
However, the important question about all this is, of course, is it true? The first thesis of Mr. Marriott might look suspiciously like the sinner's retort, “Oh, you are just like the rest of us." It might look like the attempt to drag the pictures of America down to the level of that of imperialist and militarist Europe. There is probably to be detected here, however, a certain measure of influence from the second of Mr. Marriott's propositions. We are all in the same game, he says, at least since 1895; after all, haven't we always been pretty much alike, you were always pretty much like us, you know. In either case the question remains: were we? Is it true?
It must be remembered that the point is that of international imperialism. The United States is not accused of being rebellious or turbulent, in the sense in which that accusation is levelled at Latin-American republics. The territorial expansion of the United States and their share in imperial world politics is what is in question. Accordingly, Professor Moore's mention of “the greatest civil war in history," and of the fact that the United States “forcibly achieved their independence,” is simply beside the point and has nothing to do with the case.
For the rest, the charge may be put thus: the United States has been engaged in numerous wars and has expanded enormously in territorial possessions; on these critical points of international relations and foreign policy America is not exceptionally righteous by intention, nor has she an exceptionally good record.
On the first point, no perplexity whatever need be felt. The history of American military organization and the record of her wars need only be reviewed to show that Professor Moore's insinuations are wholly without consequence. To begin with, the United States has always been content with, and has positively rejoiced in, a standing army small even for a much smaller Power, and in the use of the volunteer and militia systems of military organization. That is notorious. It does not create a picture of a nation with military propensities and predilections. In the military life Americans are amateurs—sometimes ridiculous, sometimes glorious, but always amateurs.
When we come to examine the numerous wars in which the United States has been engaged, “three general and one limited," a new sort of error is revealed. The United States has been involved in the wars against the Barbary pirate states in 1795-1815, in the wars of England and France in 1798 and 1812, in a war upon Mexico in 1846, a war upon Spain in 1898, and in the general European war in 1917. To make such a statement, however, is to open a discussion, not to close it; is to speak merely in quantitative terms. It remains to be noted, first, that the wars against the Barbary States were waged in behalf of a sea free for all nations from these subsidized marauders of the Mediterranean; second, that the de facto war with France was entirely maritime in character, was extremely briefa matter of six months—and, like the following war of 1812 (also brief and fragmentary), followed not from relations arising directly or primarily between the United States and another peaceful nation, but from relations between the United States as a neutral and one of two parties to a bitter European struggle during which the neutral was put to it to defend his rights and to resist encroachments from one side or the other. Like the War of 1812, also, it originated in part from a determination to defend maritime liberties upon which the next few years were to place the seal of approval. These two wars contrast strongly with the Mexican War, which was offensive and not defensive, which was predatory in its aim, and was not undertaken primarily for the defense or vindication of legal rights.
It is precisely this Mexican War which, as the glaring exception, proves the general rule regarding the character of American wars. Mr. Marriott does not dwell upon the disgraceful character of that war as fully as he might be pardoned for doing if he chose. He does, however, make a remark in regard to it which is interesting and instructive. The Civil War, it appears, "might never have occurred had the United States been strictly limited to its original territory.” Evidently, in Mr. Marriott's eyes, the Mexican War contributed to push the South into the Civil War. On the other hand, as Mr. Marriott does not mention, it was the South that pushed the nation into the Mexican War to secure more potentially slave territory in Texas and the Southwest. That war, it is safe to say, probably would not have occurred but for the operation of what must be regarded as an abnormal and unnatural factor in American politics. It is not characteristic of American foreign policy.
One does not need to go up into the wars of 1898 and 1917 to discover the same traits. Let history judge whether the United States entered either of her most recent wars from a lust of conquest, military ardor or imperialistic desires. Rather it can be affirmed that the United States, when her policy has been determined by the natural and normal preferences of her people, has never entered a war except in defense of legal or ethical rights to which history has, as a matter of actual recorded fact, paid definite and profound respect. So with her defense of the freedom of the seas against France and Britain in 1798 and 1812, her defense of Cuban liberty and decency and her own safety in 1898, and of her freedom upon the seas again in 1917. Let Mr. Marriott compare the war aims of America in the