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Coercion there must be, for nations, as shown by experience, are even less inclined than individuals to brook control; but the choice is, and it is believed the choice must always be, either for the coercion of law, or for the coercion of arms.
Space will not permit consideration of the chapters of Mr. Scott's book which deal in detail with the nature of judicial power, and the extent of the jurisdiction of the Supreme Court. In these chapters particular attention is, of course, devoted to the power of the court to adjudicate in suits between the States of the Union and in those in which the United States is a party. Again is emphasized, as was emphasized by Dr. Scott in his Judicial Settlement of Controversies between States of the American Union, that, though the Supreme Court decides for itself whether it has jurisdiction of a case brought before it, it has not sought to overstep the limits of its jurisdiction as constitutionally fixed. Hence, arguendo, the same result may be expected of an international court of justice for all nations, should it be established. Dr. Scott does not, however, find it necessary to point out the extent to which the immunity from suit at the instance of private individuals, as guaranteed by the Eleventh Amendment to the Constitution, has been whittled away by court, nor does he find it necessary to dwell upon the doctrines declared in the suit of Virginia against West Virginia.
The volume is well indexed, and, as appendices, the texts of some twenty of the most important source documents are given.
In concluding this notice, the reviewer must admit that the question has arisen in his mind whether Dr. Scott would not have better achieved his purpose if, instead of giving us a very large volume, much of it rehearsing very well known and readily available facts, he had supplied his readers with a critical essay, which could have easily been brought within the compass of a hundred pages, in which would be argued the lessons which the American federal experiment has to teach the world with regard to the maintenance, through law, of international peace and coöperation.
W. W. WILLOUGHBY.
The American Supreme Court as an International Tribunal. By Herbert
A. Smith, M.A., of the Inner Temple; Professor of Jurisprudence and
This treatise begins with the affirmation (p. iii) that “whatever form the League of Nations may ultimately take, it must contain some provisions for the settlement by judicial means of justiciable disputes between members of the League.” This proposition can hardly be held to have been maintained by the reasons which the author proceeds to bring forward. A League of Nations may, but not must, offer a mode of dealing judicially with any justiciable question arising between sovereign states. States
may form a League of Nations with power to settle some kinds of disputes between them, but not all.
The Supreme Court of the United States is regarded by the author as the “only permanent court, as distinguished from occasional arbitration commissions, which has hitherto attempted in any degree to discharge the functions of a true international tribunal” (p. iii).
He does not write primarily for lawyers, but for the general public. In treating his subject he has the advantages and disadvantages of a foreigner, namely, a certain breadth of view, and, on the other hand, a less intimate knowledge of American legal history. Thus, he quotes what he describes as “Marshall's phrase" to prove that "the American Constitution” was designed to be “a government of laws and not of men,” whereas the expression appears in the Constitution of Massachusetts, and was put there by John Adams, following the thought of Harrington (p. 32). So, also, Professor Smith ignores the closing words of the Tenth Amendment of the Constitution of the United States by declaring that “the Federal Government in all its powers is theoretically only an agent enjoying such limited powers as have been delegated to it by the joint authority of the sovereign and independent States” (p. 1). In commenting upon the doctrine of the Dred Scott case, he says that the decision could not be overruled except by a constitutional amendment (p. 51). It could, however, be reconsidered by the court, should it be convinced that it was erroneous. The court does not, as does the British House of Lords, claim to be infallible.
How far has the Supreme Court of the United States dealt with international disputes in the character of an international tribunal ? Professor Smith applauds its course in this respect. It has moved steadily but slowly.
It does not feel that it is entitled to consider what may be called the diplomatic or political aspects of any controversy. Nor under the American Constitution would any other than the strictly legal method be possible (p. 57). ... The fact that the English Common Law is the foundation of American jurisprudence has supplied the Court with a coherent body of doctrine which enables it to render a series of judgments resting upon a uniform basis of principle. These principles must be carefully borne in mind when it is desired to create a Court of the Nations with functions in any way resembling those of the Supreme Court of the United States. If we are to establish any kind of permanent tribunal, as distinguished from occasional arbitration commission, we must provide it, in outline, at least, with a consistent body of rules upon which to work (pp. 57, 58).
National boundaries are not always fixed by history, nor readily determinable by courts.
In the present year (1919) the civilized world is busily engaged in breaking up arrangements which have centuries of established title to support them. The fact that an injustice has lasted a long time is an insufficient reason for deciding that it must continue forever. It is not within the province of this essay to lay down rules for the settlement of such questions. Present indications point to the adoption in some form or other of the doctrine of the plebiscite, though this, too, has its difficulties, especially in dealing with mixed populations and undeveloped races. But it is essential to understand that unless some common principles of decision are agreed upon by the civilized world, these grave political controversies cannot be judicially settled at all (pp. 57, 58).
The far-flung issues presented in Kansas v. Colorado are deservedly made the subject of particular consideration. The author regards that case as making rules for itself as it went along.
It illustrates the difficulty with which an international court must frequently be faced of having no accepted rule of law applicable to the particular dispute. The laws of the two States upon the subject matter of the controversy were in sharp conflict, and there was no rule of superior authority binding upon both parties. It is by no means satisfactory for litigants to have their dispute settled according to a rule manufactured by the court to meet the particular emergency. The actual decision reached was in the nature of a compromise, as is often the case in international arbitrations (p. 88).
The author closes, as he began, by recognizing the coexistence of the sovereignty of each American State, and that of the United States, but treats this as really a legal fiction (p. 110).
Opposition to the Court appears from time to time in American politics, but such opposition no longer follows State lines, and is not based upon any theory of State rights. The lesson of this for our own day would appear to be that the strength of any international court will be in inverse proportion to the strength of national feeling in the States composing the League. No statesman of any country would suggest to-day that the nations of the world should surrender to any league powers anything like so great as those committed to the Federal Government by the Constitution of the United States. ... It is neither possible nor desirable to fuse the existing civilized States of the world into a single nation and any international tribunal will have to deal with States in which sovereignty is not merely a legal formula, but a political fact (pp. 110, 111).
The practical lessons which are to be drawn from a study of the work of the Supreme Court of the United States are summarized thus:
1. “Certain cases in which the existence, the honor, or the most vital interests of the nations are involved, can only be settled by agreement or, in the last resort, by war."
2. “A permanent international tribunal, constructed on sound principles, will lead in the course of time to the growth of an international practice of submitting controversies to judicial decision.”
3. The enforcement of international judgments must be clearly provided for.
4. “The judgments of an international tribunal will not command general assent unless it administers a definite and written system of international law drawn up by the agreement of all the States which become members of the League” (pp. 119, 120).
SIMEON E. BALDWIN.
Geschichte des Völkerbundgedankens in Deutschland. By Veit Valentin.
Berlin: Hans Robert Engelmann. 1920. pp. vi, 170. The author has assembled a mass of material bearing upon international peace and world organization, from writings during the past two centuries of German philosophers, historians, and publicists. He has analyzed and compared the material, and he has described the environment, personal and historical, under which these contributions came to be written. The dénouement leads the author to contemplate the wide discrepancy between the quantity of energy expended in Germany in the cause of peace and the sterility of achievement with the official classes and the reigning dynasty. He therefore seeks to explain this result which, to borrow a recent title, might have been designated quite properly, at least from a German viewpoint, “the greatest failure in all history." Let the author speak. He is referring to the period of the Hague Conferences.
Official and Imperial Germany was cold toward the idea of a community of states. ... Official Germany unfortunately failed to observe that for more than a generation something new had developed in the great world. The spirit of the French Revolution had entered into a spiritual marriage with Anglo-Saxon Puritanism from which issued political doctrines of tremendous attraction. Nothing less than a second epoch of enlightenment had developed, having many characteristics, both of strength and weakness, of the movement of the eighteenth century. Toward this phenomenon Imperial Germany adopted an attitude almost archaic, ... Germany became the land of political romanticism. This great contrast of spirit then combined with more material divergencies. The new political orientation was adopted in western Europe and America by the interests of bourgeois capitalism, while the same classes in Germany rendered service to the political romanticism of the absolutistic state. Enlightenment conquered romanticism, or to express it in terms of the antithesis with which we have become familiar in this history of the league-of-nations idea in Germany, Kant conquered Hegel (pp. 154-155).
It is, of course, necessary to follow the author's analysis of German thought contained in the body of the work before one fully understands his meaning. He begins with Leibniz, who sought to apply the plans of the Abbé St. Pierre and of Crucé toward strengthening the Holy Roman Empire and making it a true civitas dei. Leibnit and his school justified this end mainly upon teleologic principles. Against this complacent philosophy, the most effective blow was struck by Rousseau. The author thinks that Rousseau changed the whole trend of German pacifist thought, for his influence was widely reflected in the writings of Herder, Wieland and Kant.
The author rightly gives to Kant the place of honor among German philosophers dealing with international relations. He emphasizes the fact that Kant was the first to develop the idea of a league of nations upon purely ethical and legal grounds. Kant favored the idea as a result of logical deductions, whereas with Schelling and Wagner it was the goal of universal evolution; and with Novalis, a religious postulate (p. 54). The author points to the widespread influence of Kant outside Germany; what is of especial interest to us, he indicates that the resolutions of the Massachusetts Legislative Assembly of 1844, dealing with a league of nations, followed closely the proposals of Kant (p. 80).
In direct conflict with the Kantian school was the philosophy of Hegel, for it could not tolerate the idea of any limitation upon the sovereignty of states. The Hegelian statesman regards even the conception of a binding treaty between states only in the nature of a paradox. The author's analysis of the many contributions made by others on both sides of this irrepressible conflict is most valuable; it is clear, logical, and yet not overextended.
Curiously enough, so far as the practical elaboration of plans for world organization is concerned, the most notable contributions were not made by Germans at all, but by two distinguished Swiss publicists, Sartorius and Bluntschli, who for a time taught at German universities. Even Vattel, to whom the author refers as “the Geheimrat of Dresden” (p. 91), was also Swiss, although long in the diplomatic service of Saxony.
In the conflict between the Kantian and Hegelian philosophies, the author discovers an explanation of the World War. But the war did not prove so much that Kant had conquered Hegel in the world outside Germany, as that Hegel conquered Kant in the homeland of both. Indeed, Kant's victory still remains to be won. No one seems to realize this better than the author; and, having made his apology, he finally asserts his hope that, in the end, national and international interests may tend to become identified through the influence of better social education and the growth of human solidarity.
ARTHUR K. Kuhn.
A Monograph on Plebiscites, with a collection of official documents. By
SARAH WAMBAUGH. Prepared under the supervision of James Brown
The Employment of the Plebiscite in the Determination of Sovereignty.
By JOHANNES MATTERN. [Johns Hopkins University Studies in Historical and Political Science, Series XXXVIII, No. 3.] Baltimore: The Johns Hopkins Press, 1920, pp. ix + 214.
When President Wilson returned to the Peace Conference in March, 1919, he carried with him advance sheets of a part of Miss Wambaugh's work, which had been in preparation during the preceding year, and which