I Beg leave to present in this article for consideration, a few of the characteristic details of what we know, and what has come during the past century to be known generally in the international and political world, as the Monroe Doctrine. I would point out its origin, its meaning, its development with the extension and growing importance of American national influence throughout the nineteenth century, and the importance of its bearing upon the American national life of our day—as well as its compelling power in every great movement of political weight that has taken place in the course of our dealings with foreign nations since the establishment of the Government of the United States. Its ground principle is laid in the deeply-rooted sentiment of the people of this country, upon which the fabric of personal intellectual and political independence from all the rest of the world is built up; for it has for its object the safeguarding and defence of the essential qualities of American freedom. It began to make itself felt at the moment when American freedom came into existence and separated the people of this continent from those who still lived in the old world. The truth is, that at the end of the eighteenth century a revolution had taken place which had not only the result of taking away from Great Britain her North American colonies, but, what was of equal importance in the subsequent development of political relations between sovereign states,—a revolution had taken place in the minds of men. The feudal traditions of government which had obtained for a thousand years, carrying with them the accepted formulas of supremacy and control, on the one hand, and the obligation of obedience, with the duty of submission, on the other, were intentionally removed from the plan of life and from the rule of conduct of men in America.

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.

It is the purpose of this paper to review the methods and the principles which have been involved in the quasi-international jurisdiction which has been exercised to settle the disputes which have arisen between the members of the great federations which have sprung from the British Empire of the seventeenth century. These methods have not only been widely copied in the past, especially by the various South American states and by Switzerland, but they are likely to become of compelling interest, if ever the world should apply the federal principle to the League of Nations of which we hear so much in these days.

As soon as the colonies were thickly settled on the Atlantic shore of what is now the United States, it was natural for them to become involved in bitter disputes about their conflicting boundaries and trade regulations. These controversies were settled either (1) by informal agreements between the colonies, which were sometimes sanctioned later by the Privy Council, or (2) in the more serious cases by the Council itself acting under the royal prerogative. Since the disputes were almost always concerned with the interpretation of charters which came at least nominally from the King, it was evidently proper that the same King in Council should sit as the arbiter in these controversies. Sometimes the Privy Council decided these issues in London; again it sent out commissioners to bring the parties into agreement on the ground. In every case the authority of the Council was looked upon by the distant colonists with the greatest jealousy, but its legal authority in such matters was never questioned. It is safe to say that from the authority of this administrative body is derived the quasi-international authority of every federal court in the world, except the German Bundesrath whose power to settle the disputes of the members of the German Empire has a wholly distinct origin in the Diets of the Confederation and of the Holy Roman Empire.

The treaty of peace between Germany and the Allied and Associated Powers, signed at Versailles on the 28th of June, 1919, formally sanctioned the principle that individuals belonging to the armed or naval forces of the adversary, as well as his civil functionaries, are responsible under military law for offenses against the laws and customs of war and may be tried and punished for such offences.

The treaty declares that Germany recognizes “the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war.” It adds: “Such persons shall, if found guilty, be sentenced to punishments laid down by law. This provision will apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies.”

The treaty further requires Germany to hand over to the Allied and Associated Powers, or to such of them as shall so request, all persons accused of having committed an act in violation of the laws and customs of war, who are specified either by name or by the rank, office, or employment which they held under the German authorities, and to furnish “all documents and information of every kind, the production of which may be considered necessary to the full knowledge of the incriminating facts, the discovery of offenders, and the just appreciation of responsibility.

March 29, 1919

The Preliminary Peace Conference at the plenary session on the 25th January, 1919 (Minute No. 2), decided to create, for the purpose of inquiring into the responsibilties relating to the war, a commission composed of fifteen members, two to be named by each of the Great Powers (United States of America, British Empire, France, Italy and Japan) and five elected from among the Powers with special interests.

The Commission was charged to inquire into and report upon the following points:

1. 1. The responsibility of the authors of the war.

2. 2. The facts as to breaches of the laws and customs of war committed by the forces of the German Empire and their Allies, on land, on sea, and in the air during the present war.

3. 3. The degree of responsibility for these offences attaching, to particular members of the enemy forces, including members of the General Staffs, and other individuals, however highly placed.

4. 4. The constitution and procedure of a tribunal appropriate for the trial of these offences.

5. 5. Any other matters cognate or ancillary to the above which may arise in the course of the enquiry, and which the Commission finds it useful and relevant to take into consideration.

For the second time the United States Senate, on March 19, 1920, refused its advice and consent to the ratification of the Treaty of Peace with Germany, signed at Versailles on June 28, 1919. The first rejection took place exactly four months before, namely, on November 19, 1919. The vote on the treaty in November was 39 for and 55 against, and in March 49 for and 35 against. Both votes were upon resolutions of ratification containing reservations and understandings the acceptance of which by the Allied and Associated Powers was made a condition precedent to the going into effect of the ratification of the United States. A resolution of ratification without reservations or conditions of any kind was presented to the Senate on November 19, 1919, and defeated by a vote of 38 for to 53 against. No resolution of this kind was offered or voted upon in March. The treaty has thus failed to receive in either form the concurrence of two-thirds of the Senators present as required by the Constitution for the making of treaties by the President.