! 
 
 
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CORNELL 
 
 UNIVERSITY 
 
 LIBRARY 
 
 GIFT OF 
 
 Mrs. A.D. White 
 
Cornell University Library 
 JX 24.A51A4 
 
 The American Institute of International 
 
 3 1924 007 396 611 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924007396611 
 
The 
 American Institute of International Law: 
 
 Its Declaration of the Rights and 
 Duties of Nations 
 
 By 
 
 JAMES BROWN SCOTT 
 
 President of the American Institute of International Law 
 
 Le premier et le plus grand intiret est toujours 
 la justice. Tous veulent que les conditions soient 
 egales pour tous, et la justice n'est que cette 
 egalite. Le citoyen ne veut que les lots et que 
 I'observation des lots. Chaque particulier dans le 
 peuple sait bien que, s'il y a des exceptions, elks 
 ne seront pas en sa faveur. Ainsi tous craignent 
 les exceptions; et qui craint les exceptions aime 
 la lot. 
 
 Jean Jacques Rousseau. 
 
 THE AMERICAN INSTITUTE OF INTERNATIONAL LAW 
 
 WASHINGTON, D. C. 
 
 1916 
 
FOREWORD 
 
 The American Institute of International Law, which met at 
 Washington in connection with and under the auspices of the 
 Second Pan American Scientific Congress, adopted on 
 January 6, 1916, a Declaration of the Rights and Duties of 
 Nations. The Declaration differs from other projects of a 
 like kind in that it is not based solely, or indeed at all, upon 
 philosophic principles, but is based exclusively upon decisions 
 of the Supreme Court of the United States. It is therefore 
 fair to say that the principles of the Declaration are, as far 
 as the United States is concerned, the law of the land, and an 
 examination of the practice of the other American countries 
 shows that these principles obtain in each of the American 
 Republics, so that the Declaration is in reality a statement of 
 the fundamental principles of international law, as they are 
 understood in the New World. 
 
 At the tenth annual meeting of the American Society of 
 International Law, held in Washington, D. C., on April 26, 
 1916, the Honorable Elihu Root, President of the Society, de- 
 voted his opening address to a consideration of the Declara- 
 tion, its principles, and their importance.* 
 
 During the session of the American Institute, the under- 
 signed, who happens to be its President, delivered a series of 
 addresses dealing largely with the ideas contained in the pre- 
 amble of the Declaration, without which it is incomplete. It 
 has been thought advisable to print the series of addresses, 
 just referred to, in connected form, as an introduction to the 
 Declaration, and to follow it with the official commentary, 
 which the Institute adopted at one and the same time with the 
 text of the Declaration. 
 
 For the convenience of those who may be interested in the 
 American Institute of International Law, its constitution and 
 by-laws, its list of members and officers are placed in an 
 appendix. 
 
 James Brown Scott. 
 
 Washington, D. C, June 3, 1916. 
 
 ♦Mr Root's address is printed in the Proceedings of the American 
 Society of International Law (1916), pp. 1-11: American Journal of 
 International Law, vol. 10. pp. 211-221: Root's Addresses on Inter- 
 national Subjects (1916), pp. 413-426. 
 
TABLE OF CONTENTS 
 
 PAGE 
 
 Address of Welcome, Opening Address, and Preliminary 
 
 Addresses of the President 1 
 
 Remarks of the President on Introducing the Declaration 
 
 of the Rights and Duties of Nations 84 
 
 Declaration of the Rights and Duties of Nations 87 
 
 Commentary upon the Rights and Duties of Nations ... 89 
 
 Remarks of the President at the Closing Session 102 
 
 APPENDIX 
 
 Constitution of the American Institute of International 
 
 Law 107 
 
 By-Laws of the American Institute of International Law 113 
 Officers and Members of the American Institute of Inter- 
 national Law 121 
 
The 
 American Institute of International Law 
 
 Its Declaration of the Rights and 
 Duties of Nations 
 
Mr. Secretary of State, Mr. Ambassador, Mr. Root, Members 
 of the American Institute of International Law : 
 
 His Excellency the Secretary of State of the United States, 
 whom we are happy to count as a member, has welcomed the 
 Institute on behalf of the Government of the United States. 
 His Excellency the Chilean Ambassador, likewise a mem- 
 ber, has welcomed it on behalf of the Second Pan Ameri- 
 can Scientific Congress, of which he is the worthy Presi- 
 dent; and Mr. Elihu Root, Honorary President of the Insti- 
 tute, and friend of all the Americas, has welcomed it on 
 behalf of the publicists of North America, of whom he 
 is the most distinguished representative. It becomes my 
 very great pleasure, on behalf of the Institute, whose Presi- 
 dent I am for the time being, to thank you for the generous 
 welcome which you have extended, to express our grati- 
 tude for the confidence which you have shown by your presence 
 in our ability to carry out the purposes for which the In- 
 stitute was created, and to voice our appreciation of your 
 commendation, which encourages us to hope, if not to believe, 
 that we may, in some slight measure, be worthy of the role 
 which your generosity ascribes to us in the development of 
 international law in the American continent. 
 
 It is also my very great pleasure, on behalf of the Institute, 
 to welcome the charter members and the representatives of 
 the twenty-one national societies who have been delegated to 
 attend its opening session, and to express its grateful recogni- 
 tion of the interest which the national societies have shown by 
 delegating such distinguished publicists to take part in its 
 proceedings; and, on behalf of the Institute, I congratu- 
 late you upon the enthusiasm which has led you to come such 
 great distances to take part in the proceedings of a scientific 
 body, which has yet, if I may use a knightly expression, to win 
 its spurs. It is especially gratifying to us that you have re- 
 sponded so generously and so promptly, and, in behalf of the 
 
I AMERICAN INSTITUTE 
 
 founders and of the officers of the Institute, I congratulate you 
 and I thank you. 
 
 Why should the Secretary of State of the United States, the 
 Chilean Ambassador and President of the Congress, and 
 the most distinguished of North American statesmen welcome 
 the Institute and take part in its formal opening, and why 
 should representatives of the national societies of international 
 law of every American country come to Washington from the 
 most distant portions of the continent in order to spend a day, 
 as it were, in conference with publicists of the twenty-one 
 American republics ? What is the nature of this Institute which 
 has been formally opened in their presence? What are its 
 aims and purposes, that busy men should concern themselves 
 with it? What is the field of its activities and what services 
 can it be expected to render which would justify the presence 
 of so many and of such eminent publicists ? 
 
 The Formation and Object of the American Institute of 
 International Law 
 
 In simplest terms, the American Institute of International 
 Law was intended to, and will, it is to be hoped, give visible 
 form and shape to the one great interest which the American 
 republics have in common, namely, the interest that the 
 principles of justice, common alike to all and which deter- 
 mine the rights and duties of the men and women of each of 
 the American republics, may become the standard of right and 
 of wrong between and among the American republics, and that 
 while measuring their rights they shall likewise prescribe their 
 duties one with another. The American Institute of Inter- 
 national Law is a frank and unqualified recognition of the fact 
 that there is neither great nor small, rich nor poor, in the eyes 
 of justice; that all are equal, that all have equal duties, that all 
 have equal rights, and that the duties and the rights are the 
 same for all ; that what is right for one can not be wrong for 
 another, and that what is inherently wrong can not possibly be 
 right, even although the republic involved be the most numer- 
 
OF INTERNATIONAL LAW O 
 
 ously peopled and the greatest in physical power. It pro- 
 claims the equality in law and before law of all the American 
 republics. It insists that each has a like interest in the triumph 
 of right and in the repression of wrong. It asserts in the lan- 
 guage of Chief Justice Marshall, that "no nation can make 
 a rule for others" and that "none can make a law of nations," 
 from which it necessarily follows that the law to regulate the 
 conduct of the Americas must be made by the Americas ; that 
 the law of nations must be made, not by any one nation, 
 but by all nations. It is in the belief that the intel- 
 lectual is preeminently the one field in which the American 
 peoples can cooperate without fear and without hesitation; 
 it is with the example of the services which the Institute of 
 International Law has rendered to the cause of international 
 justice, and it is also with the hope that American publicists 
 can render a not unlike service to the American republics, if not 
 to the society of nations as a whole, that the American Institute 
 of International Law was formed and composed of representa- 
 tives of the national societies of international law created in 
 each of the twenty-one American republics. 
 
 It has been formally opened in the presence of representatives 
 of every society of international law of every American repub- 
 lic, in the presence of the Secretary of State of the United 
 States, of the President of the Congress, and of the distin- 
 guished North American statesman, because American publi- 
 cists feel the need of a central and a directing force to be their 
 agent and subject to their control, and because they further feel 
 that the Institute, which is their agent, can perform these serv- 
 ices; that the Institute and the societies of international law 
 affiliated with it and working together and in harmony can both 
 develop and popularize that system of international law without 
 which, and without whose observance, anarchy rears its ugly 
 head and tramples under foot the civilization, which alone is 
 thinkable, and which can thrive only in an atmosphere of con- 
 fidence and under the protection of just laws. 
 
 The American Institute of International Law begins its 
 
4 AMERICAN INSTITUTE 
 
 career today and it is for its members to say whether it will 
 justify its creation, or rather, it is for its members to make 
 it worthy of its self-imposed mission, to develop and to make 
 known the principles of international law, based upon justice, 
 which must control the actions of the American republics in 
 their relations one with another, if justice is to prevail in the 
 western world. 
 
 The plan to form the Institute was the plan of two citi- 
 zens of the two republics farthest apart, for one came from 
 the most southern republic of South America and the other 
 from the most northern republic of North America. The 
 two enthusiasts, for they must needs have been enthusiasts 
 to believe that, though dwelling so far apart they might never- 
 theless come together in the realm of ideals, met in the city 
 of Washington in the month of May, 1911, to discuss ques- 
 tions of a like interest to the American republics, just as we 
 meet today, again in the city of Washington, to discuss these 
 same questions, and to devise means for realizing the ideals 
 in practice which are before our eyes and in our hearts. They 
 came to the conclusion that, in order to have justice leaven 
 the American continent, a society of international law should 
 be formed by the publicists of each republic, that there should 
 be formed an American Institute of International Law in which 
 each national society should be represented by an equal num- 
 ber of members, and that the Institute, cooperating with each 
 of the societies, should give direction to their efforts and ac- 
 ceptable form to their deliberations. 
 
 They were, however, unwilling to surrender their judg- 
 ment to what might be called their enthusiasm, and they ad- 
 dressed themselves to Mr. Root — happily with us today, and 
 testifying his confidence in the Institute for which he 
 also is responsible — saying, in a letter written on the 3d 
 day of June, 1911, "after reflection and very much discussion 
 of the advantages and the difficulties of such an undertaking, 
 we, however, reached the conclusion that the best way to draw 
 the leaders of thought together would be to create an Ameri- 
 
OF INTERNATIONAL LAW 5 
 
 can Institute of International Law, in which the publicists of 
 each country should be represented, say, by five members ; that 
 the publicists of each American country should organize in 
 their capital a local society of international law; that the 
 American Institute should hold periodical meetings, the first 
 of which should be held in Washington, for the scientific dis- 
 cussion of questions of international law, especially those re- 
 lating to peace, so that little by little a code of international law 
 might be drafted which would represent the enlightened 
 thought of the American publicists and be the result of their 
 sympathetic cooperation." To this appeal, Mr. Root, as an 
 American in whose conception of America there is neither 
 North nor South, could not and did not turn a deaf ear. He 
 approved the project and placed himself unreservedly at their 
 disposition. 
 
 Although greatly encouraged by the outspoken approval of 
 Mr. Root, the enthusiasts — because people are enthusiasts or 
 are considered as such until they have realized their ideals — 
 were nevertheless unwilling to ask the cooperation of their 
 fellow-publicists of the American republics until they had 
 satisfied themselves beyond peradventure that the project, if 
 realized, would justify the efforts necessary to call it into 
 being. They felt that European publicists could be counted 
 upon to approach the question in a spirit of detachment, if not 
 in a critical spirit, and that the judgment of the members of the 
 Institute of International Law would be peculiarly valuable be- 
 cause of the experience which they had had in the study of 
 international problems and in the development of international 
 law. The European publicists without exception approved the 
 formation of the Institute, in the belief that, if formed, it might 
 render genuine services to the cause of international law in the 
 western world, and they thereby greatly strengthened the con- 
 fidence of the two enthusiasts in the feasibility of their project 
 and the advisability of its realization. 
 
 The proposers of the new Institute were thus assured of a 
 widespread belief in its usefulness if it could be founded. 
 
6 AMERICAN INSTITUTE 
 
 It was evident that its formation would depend upon 
 the cooperation of the publicists of the different American 
 states, and that it could only be created if leaders of thought 
 in the different countries would confer one with another and 
 agree to take the steps necessary to call into being the national 
 societies upon which the Institute must rest. The proposers 
 therefore addressed themselves to those publicists in the differ- 
 ent American countries whom they happened to know and 
 who, they believed — and the event justified their belief, — would 
 enter into the project as if it were their own and procure its 
 realization. They prepared a confidential note, which they sent 
 to one publicist in each of the American states, explaining in 
 brief terms the nature and purpose of the Institute and asking 
 for an expression of opinion. 
 
 It would be unfair to say that the publicists consulted were 
 in favor of the project; they were enthusiastic over it; and, en- 
 couraged by the approval of Mr. Root, of the European pub- 
 licists and of representative publicists from each of the Ameri- 
 can republics, the founders of the Institute felt justified in 
 taking the steps which were in their opinion necessary to se- 
 cure its establishment. These steps were the creation in each 
 of the American republics of a national society of international 
 Jaw, which, when created, should express a desire to be affiliat- 
 ed with the proposed American Institute of International Law, 
 to be composed of five publicists from each of the national 
 societies, elected by the charter members of the Institute upon 
 the recommendation of the national societies. In this way, we 
 were not imposing something from above, and we were not ask- 
 ing the publicists to cooperate with us in the formation of a 
 body which should more or less resemble the other Institute. 
 We were asking the publicists of the twenty-one American re- 
 publics to consider themselves as one great family, to divide 
 themselves for purposes of convenience into twenty-one dif- 
 ferent groups, and to have the Institute as the committee, so to 
 speak, of the American publicists thus divided into twenty-one 
 groups or twenty-one national societies. 
 
OF INTERNATIONAL LAW 7 
 
 It was evident that the publicists as a whole could not come 
 together at any one time and at any one place without great 
 difficulty and without great inconvenience ; it was equally evi- 
 dent that the publicists of any one country would feel more dis- 
 posed to devote themselves to the study of international law 
 and to the dissemination of its rules if they were gathered to- 
 gether into a society of their own making and within their own 
 country. But the proposers of the Institute recognized that the 
 grouping of the publicists would fail of its purpose unless each 
 group were considered as a part of a larger whole, for, al- 
 though a society is national in respect to location and composed 
 of members of one and the same country, it should nevertheless 
 be and feel itself to be part of a larger body; and all ques- 
 tions of interest to and affecting the foreign relations of any 
 one nation must be considered from the standpoint of all other 
 nations, inasmuch as a right claimed by one can not be denied 
 by another nation and a right admitted to belong to one is a 
 duty of all to observe and indeed of all to protect. In inter- 
 national relations a right can not stand alone. It is accom- 
 panied by a duty so closely allied that right and duty are not 
 considered as separate and distinct, but as two faces of one 
 and the same thing, like the two faces of the coin which passes 
 current. 
 
 The best if not the only way to create this international 
 feeling, which an American educator has happily called the 
 "international mind," is to suggest not merely that each so- 
 ciety is a part of a larger whole, but that each society is in- 
 complete in itself and that without association with the others 
 it fails of its purpose. How is this sentiment to be created? 
 Shall it radiate, as it were, from a common center, like the 
 spokes of a wheel ; or, on the contrary, shall these different na- 
 tional societies create a central organization which shall not 
 be above them, because it is in a way their creation or de- 
 pends upon their existence, and is to be regarded as their 
 agent and the agency of the American publicists in giving a 
 central direction, in coordinating the efforts of the societies 
 
8 AMERICAN INSTITUTE 
 
 and generalizing, while harmonizing, their views? In other 
 words, if the society is to be the national element, should not 
 this central agency be the international element, at the same 
 time in which it is the point of union and the clearing house, as 
 it were, of the views of the national societies ? How was this to 
 be done? While recognizing the independence of each so- 
 ciety, the principle of solidarity, which is an American doc- 
 trine, suggested, if it did not require, a federation of these na- 
 tional societies. A federation in the western world is only 
 thinkable in terms of equality. To an American this seemed to 
 be as natural as it was easy, and no institute of international 
 law could be founded in this continent, with hopes of success 
 upon any other principle. Therefore, the founders of the Insti- 
 tute proposed that a national society should be formed in each 
 of the American republics; that, although separate and distinct, 
 each should recognize its dependence upon the other; that a 
 central body or organization should be formed by the choice 
 of an equal number of publicists from each of the American 
 societies elected by the Institute, upon the recommendation of 
 each of the national societies. 
 
 It is unnecessary to trace step by step the measures taken to 
 create these national centers, and to unite them, though not to 
 merge them, through their representatives, in a central organi- 
 zation. Suffice it to say that through the cooperation of the 
 charter members in each of the American countries; through 
 Mr. Root's approval of the plan and the confidence of the 
 American publicists in the rectitude, disinterestedness and 
 soundness of his judgment; through Mr. Bacon's visit to 
 various South American countries, in which he advocated the 
 formation of national societies of international law, to be 
 affiliated with the Institute; through Mr. Lansing's interven- 
 tion in his private capacity with his colleagues, the ministers of 
 foreign affairs of the different American states, and through 
 the cooperation of the governments of these states, in many 
 instances, a national society was formed in every American re- 
 public, to be affiliated' with the American Institute. Publicists 
 
OF INTERNATIONAL LAW 9 
 
 were chosen to represent the national societies in this opening 
 session of the Institute, and members were recommended for 
 election as representatives of the national societies in the Insti- 
 tute. Because of the interest evidenced by your presence, the 
 American Institute of International Law has ceased to be a 
 project, in becoming a fact. 
 
 Without further dwelling upon these matters, which are 
 known to us all, let me quote one article of the Constitution, 
 which, having met with the approval of the national societies, 
 is the official statement of our aims and purposes. Article II 
 of the Constitution is thus worded : 
 
 The American Institute of International Law is an 
 unofficial scientific association. 
 It proposes : 
 
 1. To give precision to the general principles of inter- 
 national law as they now exist, or to formulate new ones, 
 in conformity with the solidarity which unites the mem- 
 bers of the society of civilized nations, in order to 
 strengthen these bonds and, especially, the bonds between 
 the American peoples; 
 
 2. To study questions of international law, particularly 
 questions of an American character, and to endeavor to 
 solve them, either in conformity with generally accepted 
 principles, or by extending and developing them, or by 
 creating new principles adapted to the special needs of the 
 American Continent ; 
 
 3. To discover a method of codifying the general or 
 special principles of international law, and to elaborate 
 projects of codification on matters which lend them- 
 selves thereto; 
 
 4. To aid in bringing about the triumph of the prin- 
 ciples of justice and of humanity which should govern the 
 relations between peoples, considered as nations, through 
 more extensive instruction in international law, par- 
 ticularly in American universities, through lectures and 
 addresses, as well as through publications and all other 
 means ; 
 
 5. To organize the study of international law along 
 truly scientific and practical lines in a way that meets the 
 
10 AMERICAN INSTITUTE 
 
 needs of modern life, and taking into account the prob- 
 lems of our hemisphere and American doctrines; 
 
 6. To contribute, within the limits of its competence 
 and the means at its disposal, toward the maintenance of 
 peace, or toward the observance of the laws of war and 
 the mitigation of the evils thereof; 
 
 7. To increase the sentiment of fraternity among the 
 Republics of the American Continent, so as to strengthen 
 friendship and mutual confidence among the citizens of 
 the countries of the New World. 
 
 International Law is a Branch of Jurisprudence and Should 
 Be Studied and Developed as Such 
 
 It will be noted that the fifth object of the Institute, as 
 stated in the Constitution, is "to organize the study of inter- 
 national law along truly scientific and practical lines in a way 
 that meets the needs of modern life, and taking into account 
 the problems of our hemisphere and American doctrines." 
 I may be pardoned, in view of the importance of the subject, 
 if I seem to digress in order to offer some observations upon 
 the study of international law. 
 
 To study international law, we must needs form a clear con- 
 ception of international law; otherwise its study would be of 
 little, if any, value, and in any event it would be impossible to 
 study it scientifically as the Institute requires. Now, if I am 
 correct in the contention that international law is international 
 right, that is to say, that it is justice, applied to and by nations, 
 and if I am further correct in the contention that the funda- 
 mental principles of justice are common alike to national as 
 well as to international law, we have a standard by which to 
 measure international justice and we likewise have a method by 
 which its principles may be imparted ; because we are familiar 
 with the fundamental principles of national justice and we have 
 had a long experience in the scientific study and in imparting a 
 knowledge of these principles. 
 
 We are justified in asserting that international law is law. 
 If it were necessary to quote authority for this assertion we 
 could point to the decision of the Supreme Court of the United 
 
OF INTERNATIONAL LAW 1 1 
 
 States in the case of the Paquete Habana, decided in January, 
 1900, in which Mr. Justice Gray, speaking for the court, said: 
 
 International law is part of our law, and must be ascer- 
 tained and administered by the courts of justice of appro- 
 priate jurisdiction, as often as questions of right depend- 
 ing upon it are duly presented for their determination. 
 
 In order that the nature of international law and its status 
 in the United States should be made clear, the learned justice 
 enumerated as follows the sources of international law : 
 
 For this purpose, where there is no treaty, and no con- 
 trolling executive or legislative act or judicial decision, 
 resort must be had to the customs and usages of civilized 
 nations ; and, as evidence of these, to> the works of jurists 
 and commentators, who by years of labor, research and 
 experience, have made themselves peculiarly well ac- 
 quainted with the subjects of which they treat. Such 
 works are resorted to by judicial tribunals, not for the 
 speculations of their authors concerning what the law 
 ought to be, but for trustworthy evidence of what the 
 law really is. 1 
 
 Armed with this decision, we do not need to debate whether 
 international law is or should be law, or to discuss its sources; 
 because, however fallible a court may be, it is to be presumed 
 that the Supreme Court of the United States, composed as it 
 is of nine thoughtful and experienced lawyers, sworn to ad- 
 minister the law of the land, are more likely to be right than 
 a mere theorist who speaks on his own authority and on his 
 own responsibility, or than a foreign office whose views are 
 colored and indeed moulded by policy. 
 
 If, then, international law is law, or is to be considered as 
 law, it follows that it is a branch of jurisprudence and that 
 it should be taught as is law and as is jurisprudence. Now, 
 an analysis of national law shows that it is made up of rules 
 
 U75 United States Reports, 677, 700. 
 
12 AMERICAN INSTITUTE 
 
 devised with more or less success to give effect to principles 
 of justice; that these rules are statements of rights and of 
 duties, although the statement of a right carries with it the 
 duty of others to recognize and to observe the right, for the 
 right of one is the duty of all to observe, and a duty of one 
 involves a right also to the performance of this duty, for 
 duty and right are correlative. But a statement of rights and 
 of duties is one thing; their observance is quite another thing. 
 They are not self -executing. There must be some means of 
 enforcing a right, and of redressing a wrong which is a vio- 
 lation of this right. 
 
 If we take a specific example, the idea which I have in mind 
 may become clearer. Let us consider, for example, the law of 
 contracts, or, what is very frequently called in systems based 
 upon Roman law, the law of obligations. Now, the law of con- 
 tracts is made up of the statement of rights and duties, and 
 the law thereof is so taught. What is a contract ? Who may 
 contract? What is an offer? What an acceptance? When 
 is a particular offer accepted? When is there such a meeting 
 of the minds as to result in a contract or an obligation? In 
 the language of analytical jurisprudence, these and many other 
 principles form substantive law. But it is a very practical 
 world in which we live. It generally has a reason for what it 
 does and it is averse to the study of things which have no 
 apparent utility. The right is therefore considered useless if it 
 can not be exercised; the duty meaningless if it can not 
 be compelled. Therefore, alongside of rights there are 
 remedies, or the rules of procedure to enforce rights and 
 duties and to obtain redress for wrongs. In the language of 
 analytical jurisprudence, these rules taken together form what 
 is known as adjective law. But substantive law is one thing, 
 and procedure quite another thing; and confusion results or is 
 likely to result unless they be kept separate and distinct. 
 
 If international law is law and if it is made up of rules 
 creating rights and imposing duties, it would seem that these 
 rights and duties should be stated as they are in systems of 
 
OF INTERNATIONAL LAW 13 
 
 law, and that the procedure by which rights are maintained, 
 duties enforced, and wrongs redressed should be considered 
 separate and distinct from substantive rights, because they are 
 separate and distinct. If international law is considered as 
 law, and as a branch of jurisprudence, it should be taught as 
 such; its substantive rules should be disengaged from the 
 rules of procedure and expounded as in the case of a branch 
 of national law ; and the rules of procedure should likewise be 
 separated as they are in national law and expounded as a sys- 
 tem of procedure applicable to the law of nations. The re- 
 sult would be a classification of the substantive principles of 
 international law, similar to although not necessarily identical 
 with the classification of private law, because we are dealing 
 with states, that is, artificial persons, and not with the natu- 
 ral persons of private law. When we come to the matter 
 of procedure, we see that this part of the law is very 
 defective and that agencies and remedies which are regarded, 
 and rightly so, as essential in national law are either wholly 
 lacking in international law, or are rudimentary in the sense 
 that they are only coming into being. Such a classification 
 would make the time-honored division of international law 
 into the law of peace and war meaningless, because there is 
 no law of peace and there is no law of war as such. They are 
 rules which, taken together, define and state the rights and du- 
 ties of nations. There are two methods of enforcing these 
 rights and duties and of redressing wrongs. One is peaceful in 
 the sense that it does not involve a resort to force disturbing 
 the order of the community. The other differs' in that it in- 
 volves a resort to force which disturbs the ordinary life of the 
 communities immediately affected, and, in a lesser degree, the 
 world at large. This, although called war, is in essence self- 
 redress by self-directed force. Now, in every nation making a 
 pretense to civilization, self-redress has been tried and found 
 wanting. Courts of justice have been created in which dif- 
 ferences of a justiciable nature between man and man are de- 
 cided, not by the litigants themselves, not by a resort to force, 
 
14 AMERICAN INSTITUTE 
 
 but by disinterested persons called judges, who ascertain the 
 principles of justice applicable to the case and decide by 
 the impartial application of such principles. Self-redress, 
 which has been banished from within civilized society, flour- 
 ishes between states. It is a survival of what is justly con- 
 sidered barbarism within states, and it can not be other than 
 barbarism between states. This method of separating inter- 
 national law into substantive law, on the one hand, and re- 
 medial law, on the other, has the great advantage of treating 
 the remedies separate and distinct from the rights, and of 
 showing that war, at best a remedy, must give way to that 
 better remedy which, except as between states, has everywhere 
 supplanted self-redress. 
 
 We know that the rule of national law does not always 
 lie upon the surface or at hand; that in many cases we 
 must seek for it as for hidden treasure, and that it is only 
 found after much search and difficulty. We also know that 
 when a principle of law is found it must be interpreted and 
 applied to the concrete case, and we know that, in interpreting 
 it and applying it to the concrete case, law is insensibly, but 
 none the less certainly developed. We have had centuries of 
 experience in the teaching of law, in the finding of law, in the 
 interpretation of law, and in the development of law ; and the 
 knowledge, the skill, and the methods devised through these 
 centuries of experience can be turned to the profit of nations 
 if international law is law; because if it is or is considered as 
 such, it naturally follows that the experience had in other 
 branches of law can be availed of in the matter of ascertain- 
 ing, interpreting, and developing international law. 
 
 Again, we know that the greatest possible agency in the de- 
 velopment of a system of law is the court. We know that law 
 is not studied in law schools merely for mental discipline; 
 that the business of the world is regulated by law; that the 
 rights and duties of men in their business relations are de- 
 fined by law, and that honest differences of opinion, not to 
 speak of disputes of a questionable origin and nature are car- 
 
OF INTERNATIONAL LAW IS 
 
 ried into court where the facts involved are found, where law- 
 yers, intent upon the success of their client's cause, press a 
 rule of law upon judges who, indifferent to the dispute and 
 sworn to administer justice impartially, adjudge the case 
 according to law. 
 
 We say that courts administer law, but that they do not make 
 it; that it is the duty of the legislature to make or modify the 
 law. This is no doubt true, and yet it is questionable if a 
 court really can exist and administer justice without making 
 law. We therefore speak of the law made by courts as judge- 
 made law, and there is a widespread opinion that the law 
 made by judges is better and more satisfactory than the law 
 made by legislatures. In any event, in the English-speaking 
 world, this is so, and the rules of the common law of England 
 have, in the course of centuries, been moulded, developed and 
 given the symmetry of a code by English judges. Is it too 
 much to hope, to expect, indeed to believe, that the common 
 law of nations can be moulded, developed and given the pre- 
 cision of a code by international judges sitting in international 
 courts of justice? 
 
 International Law is or Should Be Made Synonymous with 
 International Right 
 
 Before leaving this phase of the subject, I desire to call 
 your attention to a matter which may be thought to be aca- 
 demic, but which I venture to think is well-nigh fundamental. 
 
 It will be observed that, in the leading European languages, 
 the term meaning right is used to designate international 
 law, whereas in English we use, in connection with inter- 
 national law, a term which may or may not be synonymous 
 with right, but which is not necessarily synonymous with it. 
 Thus, in French we speak indifferently of droit des gens or 
 droit international; in Spanish, of derecho de gentes or dere- 
 cho international; in Italian, of diritto di gentes or diritto in- 
 ternasionale ; in German, of Volkerrecht or Internationales 
 Recht. Likewise in English we speak indifferently of the law 
 
16 AMERICAN INSTITUTE 
 
 of nations or of international law, but in so doing the word 
 law is used in each case. 
 
 Now, the word law is ambiguous, and it is doubtful in English 
 whether law means right or justice, or merely something im- 
 posed or commanded, whether right or wrong. This is not only 
 a matter of form ; it is one of substance. It is the distinction 
 between jus and lex, expressing different conceptions by dif- 
 ferent words between that which is intrinsically right and that 
 which is enacted by statute. The European phraseology means 
 and can only mean that right is the basis, and that international 
 law is but the formulation of the rules which express and 
 which are designed to apply the conception of international 
 right. If we bear this in mind, international law is interna- 
 tional right. It is the right based upon justice, which varies 
 but little with time and place, to which the measured and 
 weighty phrase of Cicero is applicable : 
 
 Neque erit alia lex Romae, alia Athenis, alia nunc, alia 
 posthac; sed et omnes gentes et omni tempore una lex et 
 sempiterna et immutabilis contenebit, unusque erit com- 
 munis quasi magister et imperator omnium Deus. 
 
 If these views be correct, justice is much the same thing 
 the world over. An examination of the principles of the law 
 of each state shows that they are substantially the same, and 
 this fact should lead us to believe that the principles of justice, 
 common to all peoples within their national boundaries, may be 
 accepted as the principles of justice to be applied between 
 the states, made up of peoples sharing these fundamental con- 
 ceptions. Our duty then is to adopt as a basis these principles 
 of justice, which, taken together, make up international right, 
 and to formulate the rules of conduct between and among na- 
 tions which express and which are designed to apply the con- 
 ception of international right. These rules may differ accord- 
 ing to the skill with which the principles of justice are dis- 
 covered and incorporated in them ; but a common standard of 
 international right is bound to produce a common rule which 
 
OF INTERNATIONAL LAW 17 
 
 will be an outward and visible expression of a universal and 
 therefore international right. The purpose of the American 
 Institute in studying the law of nations should be and doubtless 
 will be to discover and to disclose the justice common to all, 
 and to formulate the rules of conduct between states which ex- 
 press and which are designed to apply the conception of inter- 
 national justice. 
 
 Law in Peace Not Law of War Is the Chief Concern of the 
 American Institute of International Law 
 
 Having explained the purposes which the founders of the 
 American Institute had in proposing its establishment, having 
 detailed the steps which were taken to call it into being in the 
 different American republics, and, having stated the favorable 
 opinions of the European publicists who were consulted and 
 their views as to the services which the Institute could ren- 
 der, it would seem that the policy which we should pursue 
 is clearly indicated, and that we only need to rear our struc- 
 ture upon the foundations already laid, in the consciousness 
 that these very foundations must in large part determine the 
 nature of the edifice which we hope will assume definite form 
 and shape in your hands. We must bear in mind that our 
 members, although not recruited from any one country, as is 
 the case with national societies, are nevertheless recruited from 
 one continent. The projects which we may devise will there- 
 fore be international, because they will be discussed and will 
 be adopted by the representatives of twenty-one nations; but 
 these twenty-one nations, although sovereign, independent and 
 equal, are not scattered over the world. They are the twenty- 
 one republics which, taken together, form the western hemi- 
 sphere, and, in view of their origin and of the principles which 
 they profess, they are aptly termed the New World. 
 
 Separated as we are from other continents by the Atlantic and 
 Pacific Oceans, which in the past at least have been barriers, 
 although in the future they may be found to connect the new 
 world with the far east and the far west, it may well be 
 
18 AMERICAN INSTITUTE 
 
 that the principles which we seek to establish will be continental 
 without ceasing to be international; and that the projects 
 which we adopt will make a special appeal to the nations 
 of the western continent, because, try as we will, we can 
 not wholly detach ourselves from our national interests and 
 from our national conditions. As each republic is represented 
 in the Institute by an equal number of publicists, recom- 
 mended by the national society of each republic and repre- 
 senting that society, it follows that the views of the publicists 
 of each country will be made known to the Institute, that they 
 will be considered by its members in reaching conclu- 
 sions, and that no project will be, can be, or should be 
 adopted which is inconsistent with the conditions and tradi- 
 tions, the hopes or aspirations of the continent which is in 
 years, but still more in its principles, in its point of view and 
 in its ideals, a new world. 
 
 Now, without meaning to suggest that wars have not taken 
 place and that they will not again break out in the western 
 hemisphere, it is a fact that the republics of this continent are 
 addicted to peace rather than to war, that peace is the rule, war 
 the exception, and that when the resort is made to arms it 
 generally happens that the war is civil, rather than interna- 
 tional. The causes of the resort to arms, therefore, can ordi- 
 narily be ascribed to an imperfect internal organization in 
 which the checks and balances so necessary in constitutional 
 law and in national life have not been devised, or do not pro- 
 duce that order and equilibrium which in international life 
 or which between states we would call peace. The problem 
 with which we as American publicists are confronted is pri- 
 marily to find or to hit upon a standard of conduct and a 
 measure or test thereof which, recognizing the sovereignty, 
 the independence, and the equality of every American state, 
 will subject each and every one of them to this standard of 
 conduct and by it test their actions. 
 
 It will not escape notice that the founders of the Institute 
 have, in their various communications on the subject and in 
 
OF INTERNATIONAL LAW 19 
 
 their draft of a constitution, stated in no uncertain terms that 
 peace is to have the lion's share of attention, and that the rules 
 and regulations concerning warfare are not to be the chief 
 object of their solicitude. They believe that peace is the out- 
 come of justice and that in their opinion a pax americana 
 can only flow from justice and its application between and 
 among American peoples. Therefore, our preoccupation is 
 to study the fundamental principles of justice; to endeavor 
 to show that they are applicable between nations as well as 
 between individuals; that they are translatable into terms of 
 international law and that these principles of justice, not 
 the rules and regulations of war, form the branch of 
 jurisprudence which we call the law of nations. That these 
 principles of justice, which in their application produce peace 
 and which form what may be called the substantive law of 
 nations, have been neglected by publicists for the study of the 
 rules and regulations of war, which are at most a remedy to 
 enforce rights and to redress wrongs, is evident to the casual 
 observer, and has never been better put than it was some sixty 
 years ago by the distinguished German publicist and statesman 
 Robert von Mohl, who said : 
 
 Just as international law has already developed the 
 laws of war and of bloody compulsion to an infinitely 
 greater extent than the laws of peaceful intercourse, 
 even so has the science of politics directed its efforts to 
 that part of international relations characterized by brute 
 force and cunning. This is undeniably a heavy debt 
 which science must make good. 1 
 
 Justice Is the Bond of Men in and Between States 
 
 It is poor policy to lock the stable door after the horse has 
 been stolen. It is indeed necessary to send for the doctor when 
 the patient is sick, but today we lay great stress, and rightly, 
 upon preventive medicine. We think of war as a disease in it- 
 
 1 Encyklopadie der Staatswissenschaften (18S9), p. 704. 
 
20 AMERICAN INSTITUTE 
 
 self. It is not. It is the external symptom of an internal disor- 
 der of the body politic, and the proper thing to do is not merely 
 to denounce war, to take measures to prevent its outbreak, and 
 to regulate its conduct, but to probe beneath the surface to 
 discover and to remove the evils which, if undiscovered or 
 unremoved, will inevitably result in war. Now, no nation 
 can be above the experience of mankind, and the experience 
 of mankind in every country belonging to the society of 
 nations is that justice between man and man is the essential 
 condition of order, that the presence of justice prevents dis- 
 order, and that its administration maintains peace in the com- 
 munity. These ideas are commonplaces, for which no author- 
 ity is needed. If, however, authority be desired, it is as 
 ancient as Aristotle, who says in that oldest and yet newest 
 of treatises on Politics, that "justice is the bond of men in 
 states, and the administration of justice, which is the deter- 
 mination of what is just, is the principle of order in political 
 society." If justice is the bond of men in states, and we know 
 from daily experience that it is, we may one day find by ex- 
 perience that justice is not merely the bond of men in states 
 but the bond between states, or, to speak in terms of inter- 
 national law, that justice is the bond between nations. For, 
 after all, states are made up of men and women held together 
 by the bond of justice. As Sir William Jones, distinguished 
 as scholar, jurist and poet, puts it : 
 
 What constitutes a state? 
 
 Men who their duties know, 
 But know their rights, and knowing, dare maintain. 
 
 And sovereign law, that state's collected will, 
 
 O'er thrones and globes elate, 
 Sits empress, crowning good, repressing ill. 
 
 This justice, however, must be administered and before this 
 can be done it must needs be determined, for, as Aristotle says, 
 
OF INTERNATIONAL LAW 21 
 
 although his authority is not needed and I quote him merely 
 to show that the ideas which I venture to express are as old 
 as the hills, "justice is the principle of order in political so- 
 ciety." 
 
 Now, let us reason together and let us see where an anal- 
 ysis of this simple sentence — for it is only a sentence — will 
 bring us. An association of men and women within certain 
 territorial limits, be they large or small, with articles of asso- 
 ciation regulating the conduct of each toward the other within 
 territorial boundaries, creates a community, which is only 
 another way of saying that the men and women thus associ- 
 ated and thus considered form a unit and that the community 
 or unit is a political one. The principle of order in this politi- 
 cal society is justice. If order be the result of justice, then the 
 continuance of that order depends upon the continuous ad- 
 ministration of justice. If justice be the bond of men in 
 states, the continuous administration of justice is the con- 
 tinuous bond; if justice be the bond of men in states, it fol- 
 lows that justice is the bond of men in each and every state, 
 because no distinction is made between state and state; if jus- 
 tice be the bond between men within each of these states, it 
 follows, if the principles of justice be similar or identical, that 
 justice will be common to the men and women of each state, 
 consequently to the men and women of all states; if it be the 
 principle of order in one state, it will be the principle of order 
 in all states holding this common conception of justice, and 
 its administration will maintain the principle of order which 
 justice and its administration created. 
 
 If these statements be accepted, and they can not well be 
 rejected, we find it necessary to agree upon certain things, in 
 order that justice may be the bond and its administration 
 maintain order between and among the states of the American 
 continent. We must be clear in our minds as to what we 
 mean by states. We must be clear in our minds as to what 
 we mean by justice. We must be clear in our minds as to 
 what we mean by its administration, and we must provide 
 
22 AMERICAN INSTITUTE 
 
 some machinery for its ascertainment and for its administra- 
 tion between states, if justice is to be the bond in international 
 society as it is in national societies. We must not deceive our- 
 selves as to the far-reaching effect of these simple statements, 
 which may perhaps be admitted in the abstract, but to whose 
 consequences, applied in the concrete, many may object. A little 
 thought and reflection will make this very clear and show how 
 step by step we are led to the conclusion that states, like the 
 men and women composing them, are subjected to the rules 
 of law and the principles of justice common alike to men and 
 states. If the principles of Aristotle be admitted, this conclu- 
 sion seems inevitable, because, if justice is the bond of men in 
 states, and if justice and its administration are the principle 
 of order in political society, it follows as the night the day 
 that, not only should the relations of men to men be deter- 
 mined by principles of justice, but that the relations of men 
 to men, on the one hand, and to the state which they have 
 formed on the other should also be regulated by the principles 
 of justice. From this point of view, men formed political so- 
 cieties, and, practicing the precept of Aristotle, the statesmen of 
 the American Revolution ordained justice, as set forth in the 
 preamble to the Constitution of the United States, and also 
 provided apt agencies for its administration. 
 
 The Conception of the American State Is Based upon the 
 Declaration of Independence of the United States 
 
 We of America do not need to trouble ourselves about the 
 original state, if there were an original state, or, indeed, how 
 the different states of Europe came into existence. We take 
 our stand upon a continent and that continent a new world, 
 not indeed from the physical standpoint, which we could not 
 maintain, but from the intellectual and political standpoint. 
 We know how each of the American states came into being. 
 We know that high-minded men assembled in each of the 
 twenty-one republics of our western continent, represented 
 officially today in the Pan American Scientific Congress and 
 
OF INTERNATIONAL LAW 23 
 
 unofficially, but none the less really, in the American Institute, 
 in order to create a political society for themselves, separate 
 and distinct from that of the European countries whereof they 
 were the colonists, in the belief that they had the right, and 
 by the exercise of it making it such, to form a state in each 
 case ; to determine the rules of law to regulate the rights and 
 duties of the citizens or the inhabitants of each of the states 
 thus formed, and to regulate the rights and duties of the gov- 
 ernment which in each case they created to promote order, hap- 
 piness and well-being. When, again as the result of experience, 
 the states which had thus been formed seemed to some of the 
 people thereof to be too large, the larger were broken into 
 smaller states. 
 
 It is not necessary for me to go into details or to recount 
 the process by which this happened, as it is familiar in its great 
 lines to all of us. Let me content myself, therefore, with a 
 single instance, that of the United States, which happens to 
 be the oldest and which has in some sense served as a model 
 to all. For reasons which it is unnecessary to mention in this 
 connection, the English colonists in North America decided to 
 set up for themselves as the United States of America. They 
 apparently had no doubt as to their right to do so; they 
 had no doubt as to the position which their state was to as- 
 sume among the then existing nations of the world; they 
 had no doubt as to the nature of the state or of the political 
 society, to use Aristotle's term, which they were creating; 
 and as they stated their reasons in a document that he who 
 runs may read, we are neither in doubt nor in the dark as to 
 their aims and purposes. In the Declaration of Independence, 
 proclaimed in Philadelphia on July 4, 1776, and which is stated 
 to be the unanimous declaration of the thirteen United States 
 of America, the members of the Congress apparently regarded 
 it as the natural course of things for one section or group of 
 people to separate itself from another. There was nothing mys- 
 tic or hidden, divine or supernatural about it, because the sepa- 
 ration which the founders of the Republic had in mind was to 
 
24 AMERICAN INSTITUTE 
 
 happen in the course of human, not of divine events. They 
 felt that the separation, while it might be delayed, was des- 
 tined to take place because they contemplate it as "necessary 
 for one people to dissolve the political bands which have con- 
 nected them with another," and the consequences of this sepa- 
 ration enabled them "to assume among the Powers of the 
 earth, the separate and equal station to which the Laws of 
 Nature and of Nature's God entitle them." Now, although 
 this separation was to happen in the course of human events, 
 and to result in a political society separate and distinct from 
 that of the mother-country, the framers of this declaration, 
 feeling that the event was important and that the bonds con- 
 necting them should not be lightly severed, recounted the 
 reasons in justification of what might appear extraordinary 
 to the mother-country and dangerous in practice to other 
 countries, because, as they said, "a decent respect to the opin- 
 ions of mankind requires that they should declare the causes 
 which impel them to the separation." 
 
 Every republic of the western continent has followed this 
 example, and it would appear to be beyond the possibility of 
 successful contradiction, that in this western world of ours 
 the right of revolution or emancipation, to use the phraseology 
 more common in the Latin American countries, exists. If it 
 does not exist, we have no right to be here, and, if this 
 theory of the origin of the state is not in accord with old 
 world theories or books of authority, we should change the 
 theory or discard the authority, rather than renounce our 
 statehood. But the Declaration of Independence does not stop 
 here, nor does it content itself with the mere statement of the 
 causes which impelled separation, although those causes are 
 set forth at great length. It defines the origin and nature of 
 the state which the Declaration proclaimed; the origin and 
 nature of the government and of the rights of the people 
 creating and forming the state, and of the relations of the 
 government to the people thus creating and forming the state. 
 It first lays down certain rights possessed by the people, which 
 
OF INTERNATIONAL LAW 25 
 
 the framers did not claim to create, but which they re- 
 garded as inherent in the people, so inherent indeed as to be 
 inalienable; and it is to be noted that they did not take to 
 themselves any credit for their discovery, because the exist- 
 ence of the rights was self-evident. "We hold," they said, 
 '"these truths to be self-evident, that all men are created equal, 
 that they are endowed by their Creator with certain unaliena- 
 ble Rights, that among these are Life, Liberty and the pursuit 
 of Happiness." This is not and could not well be a complete 
 enumeration of the rights which men possess as men, and 
 which were likewise self-evident and unalienable. These were, 
 in their opinion, either the most important or the most im- 
 portant for their present purposes among others which they 
 did not stop to mention. However numerous these funda- 
 mental rights might be, there was no doubt that they existed, 
 that they could not be taken away, and that to maintain these 
 rights and to protect the people in the enjoyment thereof, 
 meaning thereby all rights as well as those specified, govern- 
 ments were created. It is to be observed that the expression 
 "governments" is used in the Declaration in the plural as 
 synonymous with states, and that "government" is used as 
 synonymous with the machinery created within the state in 
 order to maintain these rights in the particular state. The 
 Declaration thus says: "that to secure these rights, Govern- 
 ments are instituted among Men, deriving their just powers 
 from the consent of the governed." That is to say, men as- 
 sembled for a political purpose and to create a political society 
 which they call a state, to secure to them the enjoyment of 
 the self-evident and unalienable rights. To maintain these 
 rights within political society, men created some form of gov- 
 ernment, which, created by the people for a particular purpose, 
 they unmake and make over according to their sovereign 
 pleasure. Thus, "whenever any Form of Government be- 
 comes destructive of these ends, it is the Right of the People 
 to alter or to abolish it, and to institute new Government, lay- 
 ing its foundation on such principles and organizing its powers 
 
26 AMERICAN INSTITUTE 
 
 in such form, as to them shall seem most likely to effect their 
 Safety and Happiness." 
 
 I do not hold a brief for the theory of "natural rights." I 
 neither claim that rights are inherent nor inalienable, but I 
 do maintain that no conception of the state is or can be satis- 
 factory to Americans which does not recognize the people of 
 the American continent as possessed of these rights, and that 
 no form of government will be tolerated by the American 
 peoples which does not protect them in the enjoyment of these 
 rights. The people of the United States find themselves in 
 possession of these rights and they therefore regard them as 
 "acquired" if they can not be said to be natural or inherent 
 rights. And I further believe that the Government of the 
 United States not only recognizes these rights, in so far as its 
 citizens are concerned, but that it insists that governments 
 in American countries in which the United States has influ- 
 ence shall secure to the people thereof the protection and en- 
 joyment of these rights. I do not, however, need to argue 
 this point, because there is a precedent that speaks louder 
 than words. Thus, Mr. Root, when Secretary of War and 
 speaking for the United States, declared as a condition of the 
 delivery of Cuba to its people "the maintenance of a govern- 
 ment adequate to the protection of life, property and indi- 
 vidual liberty," and he reserved, on behalf of the United 
 States, the right to intervene in Cuba not only for the preser- 
 vation of Cuban independence but for the maintenance of 
 these specified rights. 
 
 It would seem to be beyond question that the framers of 
 the Declaration of Independence recognized the right and the 
 necessity of peoples to create states which, however, were not 
 to be the masters but the servants of the creators, and that the 
 forms of government instituted within the states were to be 
 changed by the people thereof at any time and in any way 
 which "as to them shall seem most likely to effect their Safety 
 and Happiness." For, seeing that independence would result 
 from the armed conflict between the Mother-Country and the 
 
OF INTERNATIONAL LAW 27 
 
 colonists, our forefathers recognized that some step should 
 be taken to form a government of the new states, and after 
 the Declaration of Independence a form of government be- 
 came necessary. In accordance therefore with the philosophy 
 of that instrument, they created a confederation known as the 
 United States of America, and the instrument of government 
 drafted by the Congress in 1777 and approved by the last of 
 the states in 1781 was known as the Articles of Confederation. 
 This was the first conscious exercise of the right of the peo- 
 ple of the American states to create a form of government, 
 and, while it can not be said that it destroyed the rights which 
 it was meant to serve, it is fair to say that it did not give satis- 
 faction. Therefore, again appealing to the Declaration of In- 
 dependence and the political philosophy which it contained, 
 they exercised "the Right of the People to alter or to abolish" 
 the form of government under the Articles of Confederation 
 "and to institute new Government, laying its foundation on 
 such principles and organizing its powers in such form, as 
 to them shall seem most likely to effect their Safety and 
 Happiness." Representatives of the states chosen for this 
 purpose met in the city of Philadelphia in 1787 and devised 
 a new form of government, laying its foundation on such 
 principles and organizing its powers in such a way as to them 
 seemed most likely to effect and which, for a century and more, 
 has effected their safety and happiness. 
 
 Now, just as the framers of the Declaration of Indepen- 
 dence felt that a decent respect to the opinions of mankind 
 required a statement of the causes which impelled them to 
 separation, the framers of the Constitution of the young states 
 felt it necessary to proclaim to the people composing them the 
 principles upon which the new government was framed, in ac- 
 cordance with the philosophy of the Declaration of Indepen- 
 dence, and to assert in unmistakable terms that the Constitu- 
 tion was made by the people and for the people and subject to 
 change by them, lest it might appear that the acceptance 
 of the Constitution could possibly be construed as an abroga- 
 
28 AMERICAN INSTITUTE 
 
 tion of their rights. Thus, it is said in the preamble, that 
 "the People of the United States, in Order to form a more- 
 perfect Union" — for the union under the Confederation had 
 been far from perfect — "establish justice, insure domestic 
 Tranquility, provide for the common defence, promote the 
 general welfare, and secure the Blessings of Liberty to our- 
 selves and our Posterity, do ordain and establish this Consti- 
 tution for the United States of America." The preamble is 
 thus a conscious or an unconscious recognition of the princi- 
 ple of Aristotle, confirmed by all human experience that "jus- 
 tice is the bond of men in states" — the first purpose mentioned 
 in the preamble is to establish justice — "and the administra- 
 tion of justice, which is the determination of what is just, is 
 the principle of order in political society." 
 
 The framers of the Constitution recognized the importance 
 of their act; some of them had been signers of the Declara- 
 tion of Independence and all of them knew what it meant. In 
 the preamble to the work of their hands they stated their pur- 
 pose in clear and unmistakable terms; for, as the great Chief 
 Justice of the United States has said of them and of their 
 handiwork, "as men whose intentions require no concealment 
 generally employ the words which most directly and aptly ex- 
 press the ideas they intend to 1 convey, the enlightened patriots 
 who framed our Constitution and the people who adopted it, 
 must be understood to have employed words in their natural 
 sense, and to have intended what they have said." 1 We know 
 why they met in Philadelphia. We know what they tried to 
 do and, better than they, we appreciate what they actually did. 
 The journal of the convention has been published, the pro- 
 ceedings in the conventions held in each of the states to con- 
 sider and ratify the Constitution, are within the reach of all 
 who may care to consult them, and at the distance of a cen- 
 tury we can, as it were, open the door of the convention in 
 Philadelphia where fifty-five honest, upright and experienced 
 men labored at a constitution which was not merely to be the 
 
 iGibbons vs. Ogden, 9 Wheaton, 1, 188. 
 
OF INTERNATIONAL LAW 29 
 
 instrument of government for them and their descendants, 
 but a charter of government throughout the world. 
 
 We know what Master laid thy keel, 
 What Workmen wrought thy ribs of steel, 
 Who made each mast, and sail, and rope, 
 What anvils rang, what hammers beat, 
 In what a forge and what a heat 
 Were shaped the anchors of thy hope. 
 
 To the western world the state is the creature of known 
 men, animated by a purpose likewise known and acting in 
 accordance with the doctrines proclaimed in the Declaration 
 of Independence of the United States, which is no longer the 
 heritage of one people and of one country, but, unrestricted 
 in place and in time, it is, as Thucydides would say, "a per- 
 petual possession." 
 
 In the American Conception the State Is an Artificial 
 Person, the Creature of the People and Subordinated 
 to Law. 
 
 If the state is the creature of its people and if the state 
 is created for certain purposes, it follows that the state can 
 not be superior to the people creating it and that it can not 
 properly be or become destructive of the ends for which it, as 
 well as its form of government, was created. It is subor- 
 dinated to its creators. Law prescribes the duties and safe- 
 guards the rights alike of men and of state, and of govern- 
 ment as the agent of man within the state. There is a 
 difference, it may be in form but not in substance. Man is 
 a natural person, but subordinated to law in relation to his 
 fellow men. The state, made up of men, subordinated to law in 
 their mutual relations, is an artificial person, the creature of 
 law and therefore subject to law, because, being artificial, it 
 can not exist of itself, but must be created. It matters lit- 
 tle, indeed it matters nothing, in law whether the natural per- 
 son be large or small, rich or poor, wise or unwise. Under 
 
30 AMERICAN INSTITUTE 
 
 the law, each is the equal of all and under the Declaration of 
 Independence all men are created equal. It matters little or 
 nothing under law that the artificial person, whether it be a 
 body politic which we call a state, or a corporation of an ordi- 
 nary kind, be large or small, rich or poor, for each is the 
 creature of law and is subordinated to the law of its creation. 
 
 Although I would rather not argue the question, I can not, 
 in view of its importance, content myself with a mere state- 
 ment. I feel that I must cite three authorities from among the 
 many which might be selected, and I naturally choose the de- 
 cisions of American courts of justice to lay down what must 
 be considered an American, if we are not yet justified in hold- 
 ing it to be a universal, doctrine. 
 
 The first case is intended to show, and I believe it does show, 
 that the colonists regarded the colony or province as a cor- 
 poration, having a personality separate and distinct from 
 that of the inhabitants composing it, and it explains how easily 
 and naturally the same colonists considered the states which 
 succeeded the colonies, and indeed the United States, as cor- 
 porate bodies invested with the powers of a corporation and 
 with a distinct, albeit artificial, personality. 
 
 The second case is intended to show, and I believe it does 
 show, that, by association of states and without the action of 
 a superior authority, a body politic comes into being, and as 
 an artificial person this body politic is possessed of the rights 
 of an artificial person. 
 
 The third case takes up the state where the second decision 
 leaves it, and is intended to show, and I believe it does show, 
 that the body politic, which we call the state in international 
 law, is an artificial person and, as such, subject to the duties of 
 an artificial person. 
 
 The first case to which I refer in this connection is en- 
 titled Gray v. Paxton, and was tried in the Province of Massa- 
 chusetts Bay. On January 13, 1761, the House of Repre- 
 sentatives "resolved that Harrison Gray, Esq., the Province 
 Treasurer, be and hereby is empowered and directed to de- 
 
OF INTERNATIONAL LAW 3 1 
 
 mand and receive the aforesaid sum of 47S£, 9s, lid of the 
 respective persons from whom it shall appear to be due; and 
 in case of their refusing or neglecting payment for the space 
 of one month after demand, to bring an action or actions at 
 common law for recovery of said sum, to the use of his 
 Majesty, to be applied to the support of this Government as 
 this court shall hereafter direct." The point which I wish to 
 bring out by this case is admirably stated in a note of it 
 made by John Adams, then at the Bar and later President of 
 the United States, who says: 
 
 Otis drew a writ vs. Paxton for Money had & re- 
 ceived to the use of the Province. Prat pleaded in abate- 
 ment, That, although the suit was brought in Gray's 
 name, although Gray was Plaintiff, yet no promise was 
 alleged to have been made to Gray. The Defendant is 
 alleged to be indebted to the Province for money received 
 to the Province's use, and to have promised to pay it 
 to the Province, yet the Province is not Plaintiff. It is 
 Gray v. Paxton, but it should have been the Province 
 of the Massachusetts Bay v. Paxton. 
 
 The court decided in favor of the defendant for the rea- 
 sons stated by Mr. Adams, namely, that Gray should have 
 sued not in his own name but in the name and in behalf of 
 the Province of the Massachusetts Bay, because, as Mr. 
 Adams points out in a later passage, "a corporate body is one 
 person in law and may sue or be sued." 1 
 
 Now, the meaning of this is very simple. The Province 
 of Massachusetts Bay was a corporation, endowed by law 
 with personality, and the corporation, as Mr. Adams properly 
 said, "may sue or be sued." 
 
 It is not necessary to rely upon unaided reasoning to sus- 
 tain a contention that by the Declaration of Independence 
 the states, called in that immortal document the United States 
 of America, became in fact and in law a body politic pos- 
 sessing a distinct, although artificial, personality and enjoy- 
 
 1 Quincy's Massachusetts Reports, 1761-1772, p. 546. 
 
32 AMERICAN INSTITUTE 
 
 ing the rights appertaining to an artificial person. Nor is 
 it necessary to refer to the Articles of Confederation form- 
 ing a perpetual union of the states under the title of the United 
 States of America, which became effective on and after March 
 1, 1781. Nor, finally, is it necessary to rely upon the holdings 
 of the Supreme Court of the United States as to the nature 
 of the union established by the Constitution of the United 
 States, devised in Philadelphia in 1787, ratified by the people, 
 and put into effect on the 4th day of March, 1789. We have 
 a decision of the Supreme Court of Pennsylvania on the very 
 point in question, decided in 1779, before the creation of a 
 government for the erstwhile colonies under the Articles of 
 Confederation or under the Constitution of the United States, 
 which decision has never been questioned, much less overruled, 
 recognizing that by the Declaration of Independence the 
 United States became a body corporate or an artificial person. 
 As this case is so interesting and so fundamental, and depends 
 upon the reason of the thing (for the court had no precedent 
 to guide it), I feel that I should state it somewhat at length. 
 The case in question is Respublica v. Sweers, decided in 
 1779, at the April term, by the Supreme Court of Pennsyl- 
 vania, and found in the first volume of Dallas' Reports, at 
 page 41. The defendant Sweers was a deputy Commissary 
 General of Military Stores in the armies of the United States 
 of America. As such, he was indicted in November, 1778, 
 for forgery upon two bills "with intent to defraud the United 
 States." The first indictment was for altering a receipt and 
 the second was for forging a receipt. He was convicted upon 
 both indictments, and his counsel took, as the report says, 
 "several exceptions to the form and substance of these indict- 
 ments, upon a motion in arrest of judgment." In pronouncing 
 sentence, Mr. Chief Justice McKean, speaking for the Court, 
 said: 
 
 The first exception was, "that, at the time of the of- 
 fense charged, the United States were not a body corpo- 
 
OF INTERNATIONAL LAW 33 
 
 rate known in law." But the court are of a different 
 opinion. From the moment of their association, the 
 United States necessarily became a body corporate; for, 
 there was no superior from whom that character could 
 otherwise be derived. In England, the king, lords and 
 commons, are certainly a body corporate; and yet there 
 never was any charter or statute, by which they were ex- 
 pressly so created. 
 
 Not only is the judgment interesting, but the form of the 
 sentence attracts our attention, for, on the first indictment, the 
 defendant was sentenced to "a fine of 70£ and imprisonment 
 until the 4th of July, the anniversary of American Indepen- 
 dence." 
 
 Respublica v. Sweers was a criminal case, and it is to be 
 borne in mind that in cases of this kind the charge as made 
 must be strictly proved, because every presumption is in favor 
 of the innocency of the accused. The United States would 
 not have been considered a political corporation by virtue of 
 the Declaration of Independence, and before the Articles of 
 Confederation had gone into effect, unless it had been clear 
 beyond the possibility of successful contradiction that the 
 United States, in fact and in law, was a corporation. It will 
 be recalled that the first exception taken by defendant's coun- 
 sel was "that at the time of the offense charged, the United 
 States were not a body corporate known in law." 
 
 The third case to which I have referred, as showing that a 
 state is an artificial person, or a corporation, and as such sub- 
 ordinated to the law affecting artificial persons or corporations, 
 is doubly American, if this expression be permitted, because 
 both the court trying the case and the state involved were 
 American. 
 
 In the year 1889, the question arose in the Court of Appeals 
 in the State of New York whether a state (in this case the 
 Republic of Honduras) was to be considered as a foreign 
 person or as a foreign corporation, which by the laws of New 
 York was required to deposit security for costs before be- 
 
34 AMERICAN INSTITUTE 
 
 ginning a proceeding in a court of justice. In holding that a 
 foreign nation was to be considered as a moral person or a 
 foreign corporation and as such within the terms of the law, 
 Chief Judge Ruger said: 
 
 Section 3268 of the Code of Civil Procedure provides 
 that a defendant, in an action brought in a court of rec- 
 ord, may require security for costs, in cases, among others, 
 where the plaintiff was, when the action was commenced, 
 either "a person residing without the state" ; or "a foreign 
 corporation." The plaintiff claims to be a foreign inde- 
 pendent state. 
 
 It is urged by the plaintiff that it is neither a person 
 nor a foreign corporation, within the meaning of the Code. 
 It is not disputed but that the plaintiff is an independent 
 government, recognized as such by the United States, and 
 capable of entering into contracts and acquiring property, 
 as well as competent, through the rule of comity, of bring- 
 ing and maintaining actions in the courts of this country ; 
 but it is claimed that it does not come within the descrip- 
 tion of legal entities authorized to require security for 
 costs. That it is within the spirit of the enactment, we 
 think can not be disputed, and we are also of the opinion 
 that it is within the letter as well. 
 
 Vattel defines "nations or states to be bodies politic, 
 societies of men united together for the purpose of pro- 
 moting their mutual safety and advantage by the joint 
 effort of their combined strength. Such a society has 
 her affairs and her interests. She deliberates and takes 
 resolutions in common, thus becoming a moral person, 
 who possesses an understanding and a will peculiar to him- 
 self, and is susceptible of obligations and rights." (Law 
 of Nations, 1 ; Wheaton's International Law, chap. 2, sec. 
 1, 2; Bouvier's Institutes, title "Nation.") 
 
 That such a being constitutes a legal entity, capable of 
 acquiring and enjoying property and protecting itself 
 from injuries thereto in the courts of foreign countries, 
 has long been recognized and established in the tribunals 
 of civilized nations. (Republic of Mexico v. De Arran- 
 gois, 5 Duer, 636; Hullet v. King of Spain, 1 Dow & C, 
 169; Cherokee Nation v. Georgia, 5 Peters, 52.) 
 
OF INTERNATIONAL LAW 35 
 
 There can be no doubt but that under title 2, chapter 
 10, part 3, of the Revised Statutes, providing for security 
 for costs in an action brought by any plaintiff, not residing 
 within the jurisdiction of the court, that foreign states 
 and nations were required to give such security, and we 
 do not think that the provisions of the Code were intended 
 to change the law in that respect. 
 
 Section 3268 of the Code is stated to be a reenactment 
 of the previous statute, and it can not, we think, have 
 been intended thereby to take away the right which resi- 
 dent defendants had to require security for costs. No 
 reason is seen for such a change, and we do not think any 
 was intended to be made. The word "p er son" was, we 
 think, used in its enlarged sense, as comprising all legal 
 entities except foreign corporations, which were author- 
 ized to bring actions in this state. In that sense it em- 
 braces moral persons having legal rights, capable of en- 
 tering into contracts and incurring obligations, as well as 
 natural persons. The statute must be construed with 
 reference to the objects it had in view, the evils intended 
 to be remedied and the benefits expected to be derived from 
 it ; and, as thus construed, we can see no reason why the 
 plaintiff is not included within the description of persons 
 intended to be subjected to its obligations. 1 
 
 Conception of the Latin American State Is the Same as the 
 North American Conception 
 
 The views which I have ventured to express concerning the 
 origin and nature of the state, the powers which it properly 
 exercises, and the limitations imposed upon it by the people 
 in the act of creation, are based upon the theory and practice 
 of the United States of America as I understand that theory 
 and practice to be. But these views are susceptible of a much 
 wider application. They are, I believe, applicable to all the 
 American republics and they are shared by their publicists. 
 
 Our distinguished colleague, Mr. Alejandro Alvarez, has 
 sketched with the hand of a master the origin and nature of 
 the Latin American states in his monograph entitled "Chilean 
 
 1 The Republic of Honduras v. Marco Aurelio Soto, 112 New York 
 Reports, 310. 
 
36 AMERICAN INSTITUTE 
 
 Diplomacy during the Period of Emancipation and American 
 International Society," and I beg to invoke his authority on 
 this point. After recounting the origin and nature of the 
 Latin American states, and briefly but adequately sketching the 
 origin and nature of the United States, he says : 
 
 Although the difference between the movement of 
 emancipation and the institutions of the United States 
 and of Latin America are important, on the other hand 
 there are, from a larger point of view, between both 
 groups of countries, points in common and of the same 
 character which give a certain unity to the American 
 continent and differentiate it in turn from Europe. 
 
 Mr. Alvarez feels justified in thus concluding his examination 
 of the question: 
 
 In Europe the state is the incarnation of power and the 
 powers of government do not have a strictly limited 
 character. 
 
 In America, inasmuch as the countries are the product 
 of a revolutionary movement and the direct result of the 
 popular will, it is a principle more or less expressly ad- 
 mitted in all constitutions that the authorities possess no 
 greater rights than those with which they are directly in- 
 vested by law. 
 
 The base is individualism; that is to say, the exalta- 
 tion of the individual endowed with natural rights, which 
 he brings to society and which must be guaranteed, a con- 
 ception borrowed from the political philosophers of the 
 17th and 18th centuries. 
 
 For this reason, guarantees in favor of individuals are 
 differently conceived. In America they have the express 
 character of limitations of governmental action, a char- 
 acter which does not obtain in Europe. 1 
 
 The American idea, in a nut-shell, is contained in the social 
 compact of the charterless and homeless Pilgrims of the May- 
 Alvarez, La Diplomacia de Chile durante la Emancipation y la Sociedad 
 Internacional Americana, pp. 173, 176. 
 
OF INTERNATIONAL LAW 37 
 
 flower which they drafted on November 11/21, 1620, before 
 setting foot upon American soil, and which I beg to quote: 
 
 In the name of God, Amen. We whose names are under- 
 written, the loyall subjects of our dread soveraigne Lord, 
 King James, by the grace of God, of Great Britaine, 
 Franc, and Ireland king, defender of the faith, etc., have- 
 ing undertaken, for the glorie of God, and advancemente 
 of the Christian faith, and honour of our king and 
 countrie, a voyage to plant the first colonie in the North- 
 erne parts of Virginia, doe by these presents solemnly 
 and mutualy in the presence of God, and one of another, 
 covenant and combine our selves togeather into a civill 
 body politick, for our better ordering and preservation 
 and furtherance of the ends aforesaid; and by vertue 
 hearof to enacte, constitute, and frame such just and 
 equall lawes, ordinances, acts, constitutions, and offices, 
 from time to time, as shall be thought most meete and 
 convenient for the generall good of the Colonie, unto 
 which we promise all due submission and obedience. In 
 witness whereof we have hereunder subscribed our names 
 at Cap-Codd the 11. of November, in the year of the 
 raigne of our soveraigne lord, King James, of England, 
 France, and Ireland the eighteenth, and of Scotland the 
 fiftie fourth. An" : Dom. 1620. 1 
 
 With these pregnant words ringing in our ears we can un- 
 derstand what the poet Lowell meant when he spoke of the 
 Pilgrim fathers as "stern men, with empires in their brains." 
 For, if we eliminate the expression "the loyall subjects of our 
 dread soveraigne Lord, King James," the Declaration of Inde- 
 pendence is already here as the acorn, needing only congenial 
 soil for the sturdy oak. 
 
 It is unnecessary for present purposes to examine further 
 the question of the origin of the American state or its nature, 
 as my purpose is merely to make clear that the state, at least 
 in the American conception, is a creature of law and is subor- 
 dinated to the law of its creation. 
 
 If this is true of one state, it must be true of other states. 
 
 ^Bradford's History of Plymouth Plantation, edited by W. T. Davis, 
 1908, p. 107. 
 
38 AMERICAN INSTITUTE 
 
 It is certainly true of the American states, and, assuming 
 that Chief Judge Ruger's decision in the case of Honduras v. 
 de Soto is correct, it follows that it is true of all states. In- 
 ternational law speaks no uncertain language in this connec- 
 tion, and the authorities are at one in considering a state 
 from the point of view of law to be a moral or artificial per- 
 son, body politic or corporation. Assuming the correctness of 
 Aristotle's view that men are associated in political society and 
 that the unit of political society in international law is a state, 
 it follows that, if there be a society of states or of nations, it is 
 a society of political entities, each one of which is independent 
 of the other and is the equal of each or all, according to the 
 philosophy of the Declaration of Independence, because we can 
 not claim a right for our own state which we deny to any other. 
 
 There Must Be, Therefore There Is a Society of States or 
 
 Nations 
 
 We do not need to speculate whether the states, like indi- 
 viduals, would, if left to themselves, form a society. It would 
 seem, however, that Aristotle's reasoning in this matter is 
 susceptible of a larger application, because, if men form so- 
 cieties by virtue of a social instinct, and political societies, 
 which we call bodies politic, because they are as he says 
 political animals, it would follow that, all states being com- 
 posed of men of the social and political instincts attributed 
 to them by Aristotle, the societies which they have made 
 would themselves tend to form a larger society. The lan- 
 guage of Aristotle is so interesting that I beg to quote it. "A 
 social instinct," he says, "is implanted in all men by nature," 
 by virtue of which they form society, and "that man is by 
 nature a political animal," by virtue whereof he forms politi- 
 cal society. 
 
 There Must Be and There Is, a Solidarity of Nations as 
 Recognized by the Hague Peace Conferences 
 
 It is not necessary, however, to rest the existence of the 
 society of nations upon Aristotle, although the application of 
 
OF INTERNATIONAL LAW 39 
 
 the social and political instinct with which he invests man would 
 tend to justify the contention that a society of states or of 
 nations would come into being. I do not need to argue the 
 matter, as the states themselves have by their accredited rep- 
 resentatives on a very solemn occasion within the past decade 
 confirmed their solemn act recognizing the existence of such 
 a society. Thus, in the preamble to the convention of 1899 
 for the pacific settlement of international disputes, the repre- 
 sentatives of twenty-six nations in conference at The Hague 
 spoke of their governments as "recognizing the solidarity 
 which unites the members of the society of civilized nations," 
 and, in 1907, the representatives of forty- four nations, like- 
 wise assembled in conference at The Hague, confirmed this 
 statement. 
 
 Nor do I need to prove that the advantages of the society 
 of nations are so great that it must needs come into being; 
 because it is in being and its existence is certified by the official 
 act of forty-four states. It is to be observed, however, that 
 the society spoken of is the society of civilized states, and that 
 the representatives of the forty-four states recognized the 
 solidarity uniting the members of the society. 
 
 Whether or not the views which I have put forward as to 
 the nature of the state be contested by European publicists, it 
 is a fact they are not contested by American publicists, so that 
 we have twenty-one states, one less than half of all those par- 
 ticipating in the second Hague Peace Conference, recognizing 
 this doctrine of the origin and of the nature of the state, and 
 they necessarily recognize at one and the same time their own 
 solidarity when they recognize the solidarity of the states 
 forming the society of civilized nations. If this conception of 
 the nature of the state, common to American publicists, be not 
 accepted by the world at large, it is nevertheless a consolation 
 to us to know that it is and must be accepted by the twenty-one 
 American republics, for we know that a doctrine accepted by 
 these twenty-one states has a fair chance to become universal. 
 In any event, it is continental, and the doctrine of a continent 
 can not be disrespectfully treated. 
 
40 AMERICAN INSTITUTE 
 
 The Hague Peace Conference has thus solemnly spoken on 
 two occasions of the solidarity which unites the members of 
 the society of civilized nations. And if this solidarity exists 
 between and among the most distant and diverse members of 
 the society of nations it is reasonable to expect that solidarity 
 would exist in a more marked degree between and among 
 nations which are to one another as neighbors, and whose an- 
 tecedents and institutions are similar if not identical. We 
 would expect an American solidarity, and the expectation is 
 borne out by the facts. 
 
 The Solidarity of Nations is an American Doctrine and is 
 Most Marked Among the Republics of the American 
 Continent. 
 
 Speaking in the first instance of the English colonies of 
 North America, it is common knowledge that like origin, like 
 traditions, like language, like institutions and a common griev- 
 ance brought them together for a redress of this grievance and 
 held them together after it had been redressed by independence. 
 The solidarity here was so deep rooted that it resulted in the 
 legislative, administrative and judicial union which we call the 
 United States of America. Had the solidarity which drew 
 the colonies inevitably into oneness been less evident and the 
 causes more remote, the states might have maintained their 
 independence of one another while recognizing their common 
 interest to defend themselves against the foreigner. 
 
 This is what has happened in Latin America, where federa- 
 tion has been suggested although not effected, but where a sol- 
 idarity exists which causes the foreigner to look upon them as 
 if they were one; drawn together by common origin, by a com- 
 mon language and by common traditions, they are, as it were, 
 many states but one people. They are the product of revolu- 
 tion, just as the United States is the product of revolution; the 
 likeness of origin and the similarity, not to say identity of in- 
 stitutions, reenforced by geographical position, have brought 
 them together, so that there exists an American solidarity not 
 
OF INTERNATIONAL LAW 41 
 
 merely like that recognized by The Hague but a solidarity 
 which is a name and an institution. 
 
 Pan Americanism is a fact, although its opponents would 
 call it a sentiment, as if a sentiment were not a fact, and it has 
 as its outward and visible sign of a spiritual and inward grace 
 the Pan American Union, composed of the twenty-one Ameri- 
 can republics. 
 
 I would like to dwell a moment upon Pan American solidar- 
 ity, and lest I should seem to give a freer rein to imagination 
 than to facts let me quote several passages from the authorita- 
 tive and charming study, which I have already laid under con- 
 tribution, of our distinguished colleague, Alejandro Alvarez. 
 Thus he says: 
 
 The notion of solidarity is essentially American and 
 had its most brilliant manifestations in the struggle of the 
 Spanish colonies of this continent for their emancipation. 
 . . . This solidarity was nothing else than a senti- 
 ment of mutual affection among all of the colonies, based 
 upon a community of origin and of destiny. 
 
 Under Spanish domination they were united by intimate 
 bonds of fraternity, the result of identity of blood, lan- 
 guage, religion, education, legislation and customs, and 
 the fact of a common submission under a like colonial 
 regime. 
 
 But in that epoch this sentiment did not find a noticeable 
 expression. It was only when a foreign danger menaced 
 them and the movement of emancipation began to take 
 form that the colonists realized they had a common cause 
 to defend. 1 
 
 In another passage of his work, the same distinguished publi- 
 cist says : 
 
 Without the largeness of view that this continental 
 solidarity gave to the struggle, withotit the energy and the 
 generous warmth which this ideal communicated to the 
 spirit, it would have assuredly been impossible for Latin 
 America to obtain its independence at the time in which 
 it did. 2 
 
 1 Alvarez, La Diplomacia de Chile durante la Emancipation y la Sociedad 
 International Americana, pp. 57-8. 
 'Ibid., p. 61. 
 
42 AMERICAN INSTITUTE 
 
 A little later in the course of his narrative, Mr. Alvarez traces 
 the growth of a continental solidarity as distinct from that of 
 the Spanish American states. 
 
 This solidarity thereafter took a new direction, charac- 
 terized by the representations made by the United States 
 before the European courts to obtain their recognition of 
 the sovereignty of these countries, and by the recognition 
 which the Government of the United States itself has- 
 tened to make. The proclamation of the Monroe Doctrine 
 came to the aid and strengthened the sentiment, combin- 
 ing in a happy formula the ideas of the American nations 
 concerning their right to preserve their independence and 
 to oppose the attempts of the European states to oppress, 
 to reconquer, or to colonize any part of their territory. 
 
 Pan American solidarity, therefore, came into existence 
 at one and the same time with Spanish American solidar- 
 ity, but before Latin American solidarity, which would 
 also include Brazil. This last continental tie only came 
 into being during the second half of the nineteenth cen- 
 tury, based upon the likeness of the political and interna- 
 tional problems of Brazil to those of the other Latin 
 American states of the new continent. 1 
 
 Likewise in the period of emancipation there were writ- 
 ers and statesmen who foresaw the larger and more last- 
 ing solidarity which should make itself felt not only in 
 periods of struggle but also in the normal life of the peo- 
 ples of the American continent, giving form to their mu- 
 tual relations and cooperating in their growth and prog- 
 ress. That is to say, they foresaw and they desired to 
 organize a real American international society, which by 
 the unity of its views, its subordination to law and its 
 peaceful tendencies stood in marked contrast with the in- 
 ternational European community, which at that time was 
 constantly engaged in recurring struggles for domination. 2 
 
 Let me conclude this brief statement of American solidarity 
 with another quotation from Mr. Alvarez, in which he points 
 out the influence of similarity of institutions upon solidarity. 
 
 niii., pp. 66-7. 
 2 Ibid., pp. 82-3. 
 
OF INTERNATIONAL LAW 43 
 
 The similarity of this system among the Latin Amer- 
 ican states and between them and the United States reen- 
 f orced the sentiment of solidarity among all of them, with 
 the result that the international American society clothed 
 itself with a character different from that of Europe. 1 
 
 As a citizen of the English-speaking Republic I have hesi- 
 tated to speak of the solidarity which I hope and believe exists 
 between the twenty Latin American countries and the Republic 
 of the North. I felt that you would prefer a statement of 
 American solidarity, if it were to be made, to come from a 
 Latin American source, and I have therefore drawn upon the 
 admirable statement of American solidarity made by Mr. Al- 
 varez, with whom Pan Americanism is at once a religion and 
 a reality. 
 
 For the purposes of the American Institute, dealing with 
 American problems, we can accept the American doctrine of 
 the origin and nature of the state and, without seeking fur- 
 ther to demonstrate the solidarity which unites the American 
 republics, we need only point to the Pan American Union, 
 with its governing board in Washington, composed of a duly 
 appointed and accredited member of each of the American 
 republics, in order to establish the existence of a very marked 
 and special solidarity uniting the members of the American 
 continent. 
 
 The Society of Nations Needs Law and Therefore a Law 
 of the Society Exists 
 
 I have been anxious to consider the American state from the 
 point of view of its founders, to establish the existence of 
 the society of nations and within that society a smaller group, 
 if necessary, composed of the twenty-one American republics, 
 recognizing the American conception of the state, because I 
 want to show in the next place that there is and must be a law 
 of that society just as there is and must be a law for any 
 society. 
 
 '■Ibid., p. 177. 
 
44 AMERICAN INSTITUTE 
 
 It is true that in this matter I am dealing again with truisms, 
 but, if all persons and nations professing truisms practiced 
 them, law and order instead of anarchy would exist between 
 nations and we would not be meeting at this moment in the 
 midst of a world war, which threatens the existence of the so- 
 ciety of nations and which jeopardizes civilization. 
 
 I might perhaps quote Aristotle on the question of law and 
 prove its need by his apt illustration of law even among rob- 
 bers, but I shall content myself with the happier expression 
 of Cicero : Ubi societas, ibi jus — "where there is society, there 
 is law." Where men come together and form society, they 
 agree upon certain rules of conduct, prescribing the rights of 
 the members and the duties of each toward one and all. No 
 matter how small the society may be, there must be some rules 
 regulating admission to it, otherwise, it is open to all who 
 care to enter, and, unless there be rules of conduct agreed upon, 
 there may be at any time confusion and anarchy. Whether 
 the purpose of the society be scientific, social or political, the 
 need of a rule of conduct to control and to guide its mem- 
 bers is obvious, and the experience of mankind has shown how 
 necessary and wholly indispensable such rules of conduct are 
 in political society. 
 
 Within each and every nation laws exist prescribing the 
 rights and duties of the citizens or subjects making up the 
 state, and these rules or laws taken together constitute what is 
 called national law. An examination of the systems of law of 
 the different nations shows that there are some principles every- 
 where prevailing. As they are to be found everywhere in 
 modern civilized society, they can be called universal, and, 
 being universal they may likewise be termed fundamental. 
 These principles are (1) the right to life, (2) the right 
 to liberty, (3) the right to the pursuit of happiness, as pro- 
 claimed by the Declaration of Independence of the United 
 States, (4) the right to legal equality, (5) the right to prop- 
 erty, and (6) the right to the enjoyment of all these rights. 
 This is a very brief and very summary statement of a very 
 
OF INTERNATIONAL LAW 45 
 
 long process, for the rights thus enumerated within the com- 
 pass of a single sentence have been the slow and almost inper- 
 ceptible growth of centuries. It would be historically false to as- 
 sert that upon them the system of national law has been reared. 
 They are rather the half dozen principles to be deduced from 
 the municipal codes, which exist in the countries which, taken 
 together, make up the society of nations. But if these pro- 
 visions which I venture to call universal and fundamental are to 
 be taken as the culmination of development and as the resume 
 of the different systems, it follows that from them we could 
 derive the various provisions of the different municipal codes 
 if the codes were not in existence. We can not claim, as 
 I have already said, that these principles, historically con- 
 sidered, are the foundations upon which the municipal codes 
 have been based, but we are justified analytically, though not 
 historically, in maintaining that they are at the present day, as 
 the result of a long and painful period of development, to be 
 considered as the foundations upon which the municipal sys- 
 tems of law securely rest. Admitting that these principles have 
 been the result of long and painful growth, the question arises 
 is it necessary that we shall go through the same processes in 
 developing international law? Must we repeat on an interna- 
 tional scale what has been done in every country and therefore 
 done upon the largest of possible scales? Can we not regard 
 these principles as already established, without the necessity of 
 going through the process of their development and upon them 
 as established build the law which is to obtain between and 
 among nations? We are asking nothing new of the nations. 
 We are not suggesting that they take a leap in the dark or 
 that they pledge themselves to accept the unknown, for these 
 principles, existing in every nation, are familiar to the people 
 of each nation. They are therefore familiar to all persons 
 who, grouped artificially in states, make up the world, or, at 
 least, that part of it which we call the society of nations. 
 
 To accomplish this we need only ask that those principles 
 which are applied within each group and which are thus com- 
 
46 AMERICAN INSTITUTE 
 
 mon to all, shall be held to apply between and among the 
 peoples of the different groups, just as they apply between and 
 among the persons of each and every group considered as a 
 separate and distinct unit. From this viewpoint, the only 
 difficulty in the way is to persuade the nations that these 
 fundamental principles can be accepted and applied by them in 
 their mutual relations; but, as the very principles in question 
 have already been accepted by their subjects and citizens, there 
 should be no insuperable barrier in the way to prevent them 
 from regulating the conduct of nations, if only what I have ven- 
 tured to call the American conception of the state be adopted. 
 
 . Although I have already urged this conception upon you, let 
 me nevertheless repeat it in this connection, as it is very ma- 
 terial to my argument. The American conception, as I under- 
 stand it and as I advocate it, is that the state is a moral, juristic 
 or artificial person, a body politic or a corporation; that the 
 state thus conceived is a creature of the popular will, subjected 
 to and subordinated to the law of its creation ; that it is a mere 
 creation of the people, a mere agency of the people, the servant 
 of the people, to carry into effect the purposes stated in the 
 Declaration of Independence, with a form of government 
 most likely to effect the safety and happiness of the people 
 creating the state and devising the form of government. 
 From this point of view, the state is not something mystical, 
 superhuman and of divine origin, nor is its form of govern- 
 ment created to meet the desires of a class or of a privileged 
 few or of a sanctified and glorified family. 
 
 But before we can make any progress in the direction which 
 I have indicated, we must ask ourselves whether the funda- 
 mental conceptions of municipal law are capable of being trans- 
 lated into terms of international law, and if, when so trans- 
 lated, they can serve as the foundation upon which an adequate 
 and progressive law of nations may be built. It seems to me 
 that each one of these principles which I have ventured to term 
 fundamental can be internationalized and applied to the rela- 
 tions of nations. The right to life, stated in terms of interna- 
 
OF INTERNATIONAL LAW 47 
 
 tional law, is the right of the state to exist and to maintain 
 its existence. The right to liberty is the right of the state to 
 develop itself without hindrance from without, that is to say, 
 to be independent of the control or supervision of another state. 
 The right to the pursuit of happiness is, in terms of interna- 
 tional law, the right to pursue that conduct best fitted to the 
 state and which when pursued makes for the happiness of its 
 people. The right to legal equality — the Declaration of Inde- 
 pendence proclaims that all men are created equal — means in 
 municipal law not that every person is equal in capacity or in 
 ability, but that every person has the same rights and duties in 
 law and under law, a right which in terms of international law 
 means that every state, be it large or small, rich or poor, is a 
 juristic person and as such the equal of every other juristic per- 
 son which we call a state or nation. The right to property, 
 everywhere existent in municipal law, expressed in terms of 
 international law, means the right of the state to> have and to 
 hold territory within defined boundaries and to exercise within 
 its boundaries exclusive jurisdiction. And, finally, the right 
 to the enjoyment o>f these various rights exists in international 
 law as well as in municipal law, because, if rights are not to be 
 enjoyed they are useless, i 
 
 At the same time, it will not have escaped attention that 
 each right raises a duty, for, if I have a right to my life, 
 everybody is bound to respect this right, otherwise it is to 
 me of no avail. Every right on the part of one person is 
 accompanied by a duty on the part of all persons to observe it, 
 and on the part of the government, instituted by the people 
 forming the state, to protect this right and to protect me in 
 its enjoyment. 
 
 Now, I have been bold enough to say that these are the fun- 
 damental rights of municipal law and of every state belonging 
 to the society of nations, and I am bold enough to assert that 
 they are likewise the fundamental rights of every state con- 
 sidered as a member of the society of nations. I believe 
 that they are the foundation of the law of nations just as 
 
48 AMERICAN INSTITUTE 
 
 they are the foundation of the law of each nation, and that, 
 just as the provisions of the municipal law can be developed 
 from them, so the provisions of international law can be 
 developed from them, and indeed that the provisions of inter- 
 national law must be developed from them, if we are to have 
 law instead of anarchy in the society of nations. We may 
 readily admit this to be true in much the same way as we say 
 that two and two make four, without stopping to draw the 
 consequences from the admission. We look upon these prin- 
 ciples as true only in the abstract, not as applicable to the 
 relations of nations ; yet if we accept them we must insist that 
 they be applied between nations. Otherwise it is useless to 
 descant about them. 
 
 I do not intend at this time to dwell longer upon this sub- 
 ject, as, during the course of this session of the Institute, I 
 shall present a project dealing with the rights and duties of 
 nations, based upon the fundamental rights of municipal law, 
 and I shall accompany the declaration with a commentary 
 showing that each one of these principles is not merely true 
 in municipal law, but that each is true in international law; 
 that these principles have not merely been devised by philoso- 
 phers and expounded in treatises on the science, but that 
 they have been authoritatively stated, and applied by the Su- 
 preme Court of the United States in cases involving them, and 
 that they are accepted as thus denned and applied by every 
 republic of the western world. 
 
 But I can not resist the temptation to reen force, by a 
 semblance of authority, the statements which I have felt 
 justified in making, and indeed I feel that I might properly 
 expose myself to criticism if I did not, however briefly and 
 inadequately, put you in possession of these authorities, in 
 order that you may here and now test the accuracy of my 
 conclusions and be in a position to accept, to reject, or to 
 modify the declaration of rights and duties when its text is 
 laid before you. In the language of the Declaration of Inde- 
 pendence, "let facts be submitted to a candid world." 
 
OF INTERNATIONAL LAW 49 
 
 In the first place, and by way of introduction, I beg to quote 
 the language of a distinguished North American jurist, pecul- 
 iarly versed in what may be called comparative jurisprudence. 
 In his "Modern Political Institutions," published well-nigh 
 twenty years ago, the Honorable Simeon E. Baldwin, who is 
 the presiding officer of the subsection of public law in the 
 present Scientific Congress, said : 
 
 The principles of jurisprudence, also, recognized as 
 governing the relations of private citizens to each other, 
 are substantially the same in all the leading nations of 
 the world; and they are the same because they are de- 
 rived from the conception of the equality of right. 1 
 
 The Half Dozen Fundamental Principles of Law for the 
 Society of Nations as Stated and Defined by the Su- 
 preme Court of the United States. 
 
 Let me now take up the fundamental principles of municipal 
 law which I have sought to express in terms of international 
 law. In the first place, I have stated that the right to life, 
 everywhere recognized in municipal law, is in the law of 
 nations the right of the state to exist and to maintain its 
 existence. On this point I beg to call your attention to two 
 cases, one American, the other English, which, taken together, 
 state the nature and extent of the right and its necessary 
 limitation. 
 
 Thus, in the Chinese Exclusion case, decided by the Su- 
 preme Court of the United States in 1888, it was expressly 
 stated : 
 
 To preserve its independence, and give security against 
 foreign aggression and encroachment, is the highest duty 
 of every nation, and to attain these ends nearly all other 
 considerations are to be subordinated. 
 
 You will observe that the court was careful to limit the right 
 
 Baldwin's Modern Political Institutions, 1898, p. 341. 
 
50 AMERICAN INSTITUTE 
 
 which it claimed by the use of the expression "nearly." Oth- 
 erwise, necessity, that is to say, alleged necessity, might over- 
 ride law. 
 
 The English case is entitled Regina v. Dudley, decided by 
 the Queen's Bench Division of the High Court of Justice 
 in 1884. 1 It held, in effect, that it was unlawful for ship- 
 wrecked sailors to take the life of one of their number in 
 order to preserve their own lives, because it was unlawful, 
 according to the common law of England, for an English 
 subject to take human life unless in self defense against the 
 unlawful attack of an assailant threatening the life of the 
 party unlawfully attacked. It is true that this was a case 
 of private law, but it is, in my opinion, equally applicable 
 to the artificial as well as to the natural person. The plea 
 advanced in this case was the plea of necessity, but after an 
 elaborate examination of this defense the court very properly 
 rejected it. In the course of his opinion, Lord Chief Justice 
 Coleridge, who had had large experience in public affairs and, 
 as Attorney General had been the adviser to his Government 
 in international as well as in municipal law, made some state- 
 ments which deserve quotation. Thus, he said: 
 
 Now it is admitted that the deliberate killing of this 
 unoffending and unresisting boy was clearly murder, un- 
 less the killing can be justified by some well-recognized 
 excuse admitted by the law. It is further admitted that 
 there was in this case no such excuse, unless the killing 
 was justified by what has been called necessity. But 
 the temptation to the act which existed here was not 
 what the law has ever called necessity. Nor is this to be 
 regretted. Though law and morality are not the same, 
 and though many things may be immoral which are not 
 necessarily illegal, yet the absolute divorce of law from 
 morality would be of fatal consequence, and such divorce 
 would follow if the temptation to murder in this case 
 were to be held bv law an absolute defense of it. It is 
 
 1 Reported in IS Cox's Criminal Cases, p. 624; 14 Queen's Bench 
 Division, p. 273. 
 
OF INTERNATIONAL LAW 5 1 
 
 not so. To preserve one's life is, generally speaking, a 
 duty; but it may be the plainest and highest duty to 
 sacrifice it. War is full of instances in which it is a 
 man's duty not to live but to die. 
 
 After having rejected the plea of necessity, the Lord Chiet 
 Justice points out the consequences of its admission in the 
 following passage: 
 
 It is not needful to point out the awful danger of ad- 
 mitting the principle which has been contended for. Who 
 is to be the judge of this sort of necessity? By what meas- 
 ure is the comparative value of lives to be measured? 
 Is it to be strength, or intellect, or what? It is plain 
 that the principle leaves to him who is to profit by it 
 to determine the necessity which will justify him in de- 
 liberately taking another's life to save his own. In this 
 case the weakest, the youngest, the most unresisting was 
 chosen. Was it more necessary to kill him than one of 
 the grown men? The answer must be, No. 
 "So spake the Fiend, and with necessity, 
 The tyrant's plea, excused his devilish deeds." 
 
 The right to liberty, which in terms of international law 
 is the right of the state to develop itself and to be indepen- 
 dent of the control or supervision of any other state, and the 
 right of equality are so closely related, indeed they are inter- 
 related, that they may be considered together as different 
 phases of one and the same right, and they are in fact so 
 treated by the authorities. Thus, Sir William Scott, later Lord 
 Stowell, said, in the case of The Louis, decided in 1817. 1 
 
 Two principles of public law are generally recognized 
 as fundamental. One is the perfect equality and entire 
 independence of all distinct states. Relative magnitude 
 creates no distinction of right ; relative imbecility, whether 
 permanent or casual, gives no additional right to the more 
 powerful neighbor; and any advantage seized upon that 
 ground is mere usurpation. This is the great foundation 
 
 ^Reported in 2 Dodson's Reports, pp. 210, 243-44. 
 
52 AMERICAN INSTITUTE 
 
 of public law, which it mainly concerns the peace of man- 
 kind, both in their politic and private capacities, to pre- 
 serve inviolate. 
 
 The Supreme Court of the United States is no less outspoken. 
 Thus, the great Chief Justice of the United States, John 
 Marshall, said in the case of the Antelope, decided in 1825 r 1 
 
 No principle of general law is more universally ac- 
 knowledged than the perfect equality of nations. Russia 
 and Geneva have equal rights. It results from this 
 equality, that no one can rightfully impose a rule on 
 another. Each legislates for itself, but its legislation can 
 operate on itself alone. . . . As no nation can pre- 
 scribe a rule for others, none can make a law of na- 
 tions. 
 
 It would seem that these two cases, decided by the greatest 
 judges in matters international which the English-speaking 
 countries have produced, settle beyond the fear of contradic- 
 tion the right of a nation to the pursuit of happiness and to 
 be considered as the equal of all other countries. 
 
 I shall ask your indulgence, however, while I dwell some- 
 what upon the question of equality, inasmuch as we hear it 
 constantly asserted that it is ai mere phrase, designed to 
 tickle the ear of the small states, but that it is unthinkable that 
 great nations should seriously consider applying it in their 
 relations with the smaller states. The lion and the lamb, we 
 are told, can not lie down together. As a concession, equality 
 is recognized in strictly legal relations, for the advocates of 
 superiority admit that in courts of justice, although nowhere 
 else, the great and the little may stand together for a moment 
 upon an equality. It is unknown in political as distinct from 
 legal relations. Indeed it is bad form even to suggest it in 
 society. 
 
 That equality has been a hope and goal, rather than a reality 
 and a practice, may be admitted, but if the conception of the 
 state which I have laid before you be correct, and if the theory 
 
 1 10 Wheaton's Reports, pp. 66, 122. 
 
OF INTERNATIONAL LAW 53 
 
 and practice of the United States be worthy of notice, it will 
 be evident that equality is not the strange, uncouth, unknown 
 and impossible thing which the superciliousness and boundless 
 arrogance of the larger states would have us imagine. 
 
 If a state be a body politic, a corporation, a creature of the 
 law rather than of the imagination, and an agent of the 
 people rather than an agent of the monarch's divine right to 
 govern wrong, it will require more obtuseness on the part 
 of the large states to misconceive this conception and to reject 
 it in the future than we are justified in imputing to them or 
 their rulers. For if a state be a body politic, it must have the 
 same rights and duties before and under the law, although 
 the influence of one state may be greater than that of an- 
 other. "There is one glory of the sun, and another glory of 
 the moon, and another glory of the stars : for one star diff ereth 
 from another star in glory." 
 
 There is, however, something to be said even for political 
 equality, as distinct from legal or juridical equality, and the 
 United States has said it. In the Constitutional Convention 
 which met in Philadelphia in 1787, the advocates of the big 
 states proposed, as is the wont of such, to ride rough-shod 
 over the little ones. The government which they proposed 
 was to be one in which they should, so to speak, hold the whip- 
 hand, and the little states were to deem themselves fortunate 
 to be permitted to enjoy the pleasures and the advantages of 
 the company of their betters. 
 
 But there was a lion in the way. The little states were 
 more numerous than the large ones, just as in this world of 
 ours the poor are more numerous than their supposed betters, 
 although, as President Lincoln has said, "God must like the 
 common people, or he would not have made so many of them." 
 The little states unexpectedly refused to cut off their own 
 heads. They were unwilling to enter a union — and member- 
 ship was to be voluntary — in which their rights, political as 
 well as legal, were not to be the same. The large states pro- 
 posed that a Congress, consisting of two chambers, should be 
 
54 AMERICAN INSTITUTE 
 
 composed of delegates or representatives, all chosen according 
 to the population of each state, giving the populous states 
 larger representation and enabling them to outvote the less 
 populous states. 1 But the people of the small states con- 
 sidered that they were as good as the people of the large 
 states; that in the Revolution, which had so happily resulted 
 in their independence, they had staked their lives, their liber- 
 ties and their property just as the large states had done ; that 
 they all were sovereign and equal states, and that in the final 
 adjustment they should be recognized and treated as equals. 
 They therefore proposed that the states should be equally rep- 
 resented. 2 The result was a compromise : 3 a Congress consist- 
 ing of two houses — the Senate, to be composed of two mem- 
 bers from each state, and the House of Representatives, to 
 be chosen upon a basis of population from the different states. 
 The first article of the Constitution thus states this funda- 
 mental and beneficent compromise: 
 
 All legislative powers herein granted shall be vested 
 in the Congress of the United States, which shall con- 
 sist of a Senate and House of Representatives. 
 
 The Senate of the United States shall be composed of 
 two senators from each state, chosen by the legislature 
 thereof for six years, and each Senator shall have one 
 vote. 
 
 The House of Representatives shall be composed of 
 members chosen every second year by the people of the 
 several states, and the electors in each state shall have 
 the qualifications requisite for the electors of the most 
 numerous branch of the state legislature. 
 
 In order that the states as they existed should not be dis- 
 membered or deprived of their equal representation in the 
 Senate, it was further provided in the Constitution that new 
 states should not "be formed or erected within the jurisdic- 
 
 1 Farrand: The Records of the Federal Convention, 1911, vol. I, p. 228. 
 Hbii., pp. 241, 242. 
 »Ibid., pp. 523, 526. 
 
OF INTERNATIONAL LAW 55 
 
 tion of another state; nor any state be formed by the junc- 
 tion of two or more states or parts of states, without the 
 consent of the legislature in the states concerned as well 
 as of the Congress," and as far as representation was con- 
 cerned, "that no state, without its consent, shall be deprived 
 of its equal suffrage in the Senate." 
 
 The fears of critics of democratic government seem in large 
 measure to be that democracy, meaning thereby the many 
 rather than the minority, will make law where they can not 
 make right, and that we are in the danger of substituting the 
 tyranny of the many for the tyranny of the few or of the one. 
 It is to be observed that this criticism can be met and indeed 
 has been met in the American system by the majority con- 
 sciously imposing a restraint upon themselves in the exercise of 
 what they declare to be their rights, for, while the American 
 people reserve the right to amend their Constitution and can at 
 any moment resume the power which they granted in the Con- 
 stitutional Convention in 1787, they nevertheless made the ex- 
 ercise of the right to amend the Constitution depend upon more 
 than the will of a majority of the Congress or of the state or of 
 the people within the states. Thus, Article V of the Constitu- 
 tion, dealing with this question, which has been called the key- 
 stone of the Federal fabric, provides : 
 
 The Congress, whenever two-thirds of both Houses 
 shall deem it necessary, shall propose Amendments to this 
 Constitution, or, on the Application of the Legislatures 
 of two-thirds of the several States, shall call a Conven- 
 tion for proposing Amendments, which, in either Case, 
 shall be valid to all Intents and Purposes, as Part of this 
 Constitution, when ratified by the Legislatures of three- 
 fourths of the several States, or by Conventions in three 
 fourths thereof, as the one or the other Mode of Rati- 
 fication may be proposed by the Congress. 
 
 This is the problem in a nutshell and this is the solution. 
 Restraint imposed from above or from without is tyranny or 
 
56 AMERICAN INSTITUTE 
 
 despotism. Restraint imposed from within is self-restraint, 
 and is liberty. 
 
 In the teeth of this history and in view of the fundamental 
 provisions of the law of the land, it is difficult to see how a 
 North American with a knowledge of one and a respect for 
 the other can object to equality, whether it be political or legal. 
 
 The right to property, recognized alike in municipal and 
 in international law, means in this latter system, as I already 
 have said, the right of a state to hold territory within defined 
 boundaries and to exercise exclusive jurisdiction in such ter- 
 ritory. The theory of the nature and extent of this right is 
 admirably stated, if I may say so, by Mr. Chief Justice Mar- 
 shall in the following passages from his judgment in the case of 
 the schooner Exchange, decided in 1812 •} 
 
 The jurisdiction of the nation, within its own territory, 
 is necessarily exclusive and absolute; it is susceptible of 
 no limitation, not imposed by itself. Any restriction upon 
 it, deriving validity from an external source, would imply 
 a diminution of its sovereignty, to the extent of the re- 
 striction, and an investment of that sovereignty, to the 
 same extent, in that power which could impose such re- 
 striction. All exceptions, therefore, to the full and con> 
 plete power of a nation, within its own territories, must 
 be traced up to the consent of the nation itself. They 
 can flow from no other legitimate source. 
 
 The great Chief Justice, however, recognized that summum 
 jus is often summa injuria, and he therefore qualified the ex- 
 treme right by the existence of a duty. Thus: 
 
 A nation would justly be considered as violating its 
 faith, although that faith might not be expressly plight- 
 ed, which should suddenly and without previous notice, 
 exercise its territorial powers in a manner not consonant 
 to the usages and received obligations of the civilized 
 world. 
 
 *7 Cranch's Reports, pp. 116, 136-7. 
 
Of intern ational law 57 
 
 This duty he bases upon, the common interest of equal and in- 
 dependent nations. Thus: 
 
 This perfect equality and absolute independence of 
 sovereigns, and this common interest impelling them to 
 mutual intercourse, and an interchange of good offices 
 with each other, have given rise to a class of cases in 
 which every sovereign is understood to waive the exercise 
 of a part of that complete exclusive territorial jurisdic- 
 tion, which has been stated to be the attribute of every 
 nation. 
 
 I have frequently remarked that rights would be worthless 
 things if they did not carry with them the duty of observ- 
 ance. This principle is fundamental because, without it, the 
 rights which I have enumerated might exist in theory, but they 
 could not exist in fact. We could establish by argument the 
 right to enjoyment and the duty of observance; but fortu- 
 nately we do not need to do so, as the Supreme Court of the 
 United States has anticipated our needs and has supplied us 
 with the authority, going even further than we could ask, by 
 making it the duty of each and every state not merely to 
 recognize the rights of others but to protect the rights thus 
 recognized. 
 
 In the case of United States v. Arjona, decided in 1886, 1 
 Mr. Chief Justice Waite, peculiarly qualified by his large expe- 
 rience in public affairs — for had he not represented the United 
 States before the Geneva Tribunal of Arbitration — said for 
 the court: 
 
 But if the United States can require this of another, 
 that other may require it of them, because international 
 obligations are of necessity reciprocal in their nature. 
 The right, if it exists at all, is given by the law of na- 
 tions, and what is law for one is, under the same cir- 
 cumstances, law for the other. A right secured by the 
 law of nations to a nation, or its people, is one the United 
 
 1120 U. S..Reports, pp. 479, 487. 
 
58 AMERICAN INSTITUTE 
 
 States as the representatives of this nation are bound to 
 protect. 
 
 I am very anxious to have these matters considered and 
 to have the Institute define its attitude toward them, because 
 we must affirm our faith in these as the fundamental principles 
 of international law upon which the new law of nations must be 
 built. When almost every dispatch from the old world an- 
 nounces some new violation of international law, when even its 
 votaries lose courage and fear the destruction of the system, it 
 becomes us and it behooves us publicly as individuals and as an 
 organized Institute to confess our faith in international law 
 as a system of justice and as a branch of jurisprudence, and 
 upon the principles of justice and in accordance with the 
 methods of jurisprudence to contribute, as best we may, to the 
 upbuilding of that law which must exist between nations. 
 
 In no uncertain measure, the future of international law 
 is with the Americas. If a great English statesman could 
 boast that he had called the new world into existence to re- 
 dress the balance of the old, let it be our claim to remembrance 
 that the Americas, rejecting the balance of power, shall re- 
 dress the misfortunes of the old world, by incorporating in the 
 law of nations those principles of justice which have produced 
 and maintained law and order, peace and content wherever 
 they have existed and whenever they have been applied. 
 
 The Society of Nations Needs and Therefore has a Law- 
 Making Body in the Hague Peace Conference 
 
 I am well aware that international law will not grow of 
 itself, and that, as within nations the legislature steps in and by 
 statute accelerates the growth of custom, so in the society of 
 nations there must be some organ which will quicken the de- 
 velopment of international law. 
 
 We must not, however, confuse the nation with the society 
 of nations. We must recognize that the very close union 
 within national boundaries does not exist in the society of 
 
OP INTERNATIONAL LAW 59 
 
 nations, that, while persons living within the nation may 
 create a legislature and invest it with the power to command, 
 it is difficult if not impossible to create a legislature and in- 
 vest it with power over nations regarding themselves as sov- 
 ereign, independent and equal. But is it necessary that we 
 should carry over into the international field the agencies and 
 instrumentalities of national life without changing and fit- 
 ting them to the conditions of the new environment? We 
 may profit by the experience of nations, and if national agen- 
 cies and instrumentalities have justified themselves on a small 
 scale and within a modest domain, may we not hope that 
 they will render like services upon a larger scale and within 
 the international field? But, given the difference of condi- 
 tions, we should expect a difference in the institutions. If it 
 is feasible to create a legislature within the nation, to endow 
 it with the powers of a superior power and to invest its will 
 with the force of law, we should, recognizing the difference 
 of conditions in the international field, expect that a confer- 
 ence instead of a legislature should meet; that in this confer- 
 ence the states should be represented upon a plane of equality ; 
 that its resolutions should not have the force of law, but 
 that they should be recommendations of the Conference to the 
 different states, to adopt and to ratify, and, in so doing, to 
 make them law. 
 
 Fortunately, a wise and enlightened monarch had in 1898 
 the vision to call a conference which met at The Hague, to con- 
 sider matters of importance to the world at large and to take 
 action in the interest not of one power, but of all powers. 
 This Conference met in 1899 in The Hague and is known 
 as the First Hague Peace Conference. A second was called 
 and met in 1907 in the same quiet and stately city. The 
 first was composed of representatives from twenty-six states, 
 the second of representatives from forty-four nations. The 
 first sat from the middle of May until the end of July, the 
 second from the middle of June until the middle of October, 
 thereby demonstrating that not merely twenty-six, but that 
 
60 AMERICAN INSTITUTE 
 
 forty-four nations could meet in conference, not only for the 
 period of two months, but for the period of four months, not 
 merely to consider matters of advantage to one power, but 
 those of advantage to all nations of varying degrees of civ- 
 ilization. These conferences drafted conventions and dec- 
 larations. They were signed by the representatives of the 
 powers, and they were then transmitted to the participa- 
 ting nations by the Netherland Government, acting in be- 
 half of the Conference. They have been ratified by the 
 appropriate branches of the national governments and the 
 ratifications have been deposited at The Hague. In fact, a 
 law-making body has made its appearance in the society of 
 nations, not in the form of a legislature, which imposes its 
 will and prevails by physical force, but in the simpler guise 
 of a conference, which recommends and prevails by the wis- 
 dom and reasonableness of its projects. This institution is 
 fitted to the needs of the society of nations. If it should meet 
 at stated periods, and be given a definite organization and 
 a procedure acceptable to the participants, the society of nations 
 would have its organ for the development of law, without 
 which anarchy must prevail, as it prevails today, but with 
 which justice would be extended and would prevail in the 
 uttermost corners of the earth. 
 
 I dare not go into further details. I must content myself 
 with this passing notice, but I have felt it to be my duty to 
 point out that a law-making organ is in existence or may be 
 brought into being, consistent with the sovereignty, independ- 
 ence and equality of the members of the society of nations. 
 The nations have recognized their solidarity; they only need 
 to give effect to its recognition. 
 
 The American Institute can not devote itself to a more im- 
 portant subject. The society of nations exists, based upon civ- 
 ilization and a recognition of the solidarity of civilized states. 
 The society of nations must become conscious of its exist- 
 ence and must endow itself with the agencies and instrumen- 
 talities necessary for its preservation and for the preserva- 
 
OF INTERNATIONAL LAW 61 
 
 tion of each of its members, without sacrificing the sov- 
 ereignty, the independence and the equality of any. The 
 Hague Conference is the key to unlock these difficulties. I 
 feel keenly that the Institute should first pronounce itself upon 
 the fundamentals of international law and that it should next 
 express itself as to the best means of developing international 
 law through periodical conferences of the nations, meeting 
 at stated intervals. I would suggest that at the second session 
 of the Institute this matter be considered, and I shall take the 
 liberty of presenting a project at this meeting which, without 
 any claim to finality or of solving or indeed of meeting the 
 difficulties, may nevertheless serve as the basis of discussion 
 and as an incentive to other and better projects. 
 
 The Society of Nations Needs a Court and Therefore it 
 Will Have One to Ascertain and to Apply the Prin- 
 ciples of Justice to Disputes Among its Members. 
 
 Admitting, as indeed we must admit, that there is a society of 
 nations, that this society, like each and every other society, must 
 have its law, that it must have its agency for the development 
 of its law, I desire in conclusion to offer some observations 
 upon the necessity of having an agency to ascertain this law 
 and to apply it to the disputes or differences which must arise 
 in any society, and which from a sad and a secular experience 
 we know occur in the society of nations and disturb its peace 
 and quiet. 
 
 It would perhaps be too much to say that it is useless to 
 have law if it be not applied, because its very existence sug- 
 gests its application. But it rarely happens that any law is 
 so clear and unmistakable as not to give rise to a difference 
 of meaning and to require an authoritative interpretation, and 
 we know from our own experience, that, when great interests 
 are involved, we cling to the letter of the law, if it be in our 
 favor, and that we invoke the spirit if the letter killeth. We 
 can not safely be entrusted with the interpretation of a law in- 
 volving our rights. It may be a sad commentary upon human 
 
62 AMERICAN INSTITUTE 
 
 nature, but it is human nature and this being so we should 
 admit it, recognize it, and provide against it. We can not 
 escape human nature ; we can not escape ourselves ; we can not 
 escape history. The laws of every society must be interpreted, 
 if the rights and duties of its members are to be ascertained 
 and enforced. Every state belonging to the society of nations 
 recognizes this, for every state has courts to ascertain the law, 
 to interpret it, and to apply it in the disputes which arise be- 
 tween its citizens or subjects. There is not a single state mak- 
 ing pretense to civilization and progress in which such agencies 
 are lacking, and yet the society of nations, the greatest and the 
 most impressive of all, has no agency to ascertain its law, to 
 interpret it, and to apply it to the disputes which must neces- 
 sarily occur between them by virtue of their contact and which 
 will become more numerous as the nations are more closely 
 brought into contact. 
 
 Now, if we find certain principles of law to obtain uni- 
 versally we may consider them as fundamental. If we find 
 the method of development of law to be by legislature in 
 every country, we can consider this method fundamental ; and 
 if we find some agency for the ascertainment of a rule 
 of law and its application to disputes that may arise between 
 and among citizens and subjects of every country, we are 
 justified in believing that such an agency is fundamental. 
 We are met, therefore, in any examination of national or- 
 ganization, be it superficial or profound, with three great uni- 
 versal, fundamental facts: the fact of law, the fact of law- 
 making bodies, and the fact of law-administering bodies ; and, 
 if we find these facts everywhere existing in the state or exist- 
 ing in every state, we are justified, indeed, we are driven 
 inevitably to the conclusion that these facts are fundamental 
 facts of political society; that they are requisite to the main- 
 tenance of political society, if they are not inherent in its 
 nature, and that we would expect to find them, albeit perhaps 
 in rudimentary form, in early society, indeed in any society 
 aware of its existence and properly organized. 
 
OF INTERNATIONAL LAW 63 
 
 Let me quote, without again commenting upon it, a pas- 
 sage from Aristotle's politics — true when he wrote it, true 
 today, true of all conceivable time: "A social instinct is im- 
 planted in all men by nature, and yet he who first founded 
 the state was the greatest of benefactors. For man, when 
 perfected, is the best of animals, but, when separated from 
 law and justice, he is the worst of all; since armed injustice 
 is the more dangerous, and he is equipped at birth with the 
 arms of intelligence and with moral qualities which he may 
 use for the worst ends. Wherefore, if he have not virtue, 
 he is the most unholy and the most savage of animals, and 
 the most full of lust and gluttony. But justice is the bond of 
 men in states, and the administration of justice, which is the 
 determination of what is just, is the principle of order in 
 political society." 
 
 Admitting that the administration of justice is the principle 
 or order in political society, we must have agencies for its 
 administration. But, in the first place, we must needs deter- 
 mine what is just. Now, our daily experience must have con- 
 vinced us that high-minded and honest men, although they 
 may agree in general as to what is just in the abstract, differ 
 as to what is just in the concrete case, especially if they be per- 
 sonally affected by the case. A community can not be torn 
 asunder. It must act as a unit, and it can only do so if it has 
 ideas in common, that is to say, if fundamental ideas are 
 held and shared in common. What the community needs is, 
 not that the ideas of a select few shall prevail, but that there 
 shall be a general agreement concerning these matters. We 
 may admit that the ideas of enlightened men concerning justice 
 are preferable to those of the unlettered, although this ques- 
 tion is by no means free from doubt and history has much 
 to say in favor of the many as against the few. The con- 
 ception of justice to prevail in the community must be the 
 ideas of justice held by people generally in the community if 
 these ideas of justice are to prevail. Instead of the individual 
 sense, which made itself known and was rejected in self- 
 
64 AMERICAN INSTITUTE 
 
 redress, we have the community sense of justice. This com- 
 munity sense, although it may not be so high and so theo- 
 retically perfect as the sense of the enlightened few, sets the 
 standard and the test of conduct within the community, and as 
 the standard of the many it has the better chance of being 
 obeyed. 
 
 Whenever it is necessary, society determines for itself and 
 prescribes for all what is just by statute, instead of leaving it 
 to slow-footed custom. And not content to determine and to 
 prescribe what is just, when the need arises, it determines and 
 prescribes it in advance, so that it may be known of all men, 
 so that it may not seem to be the result of a particular case 
 in which the disputants are interested, so that it may be justice 
 alike in the abstract and in the concrete case. 
 
 Although justice is general, we may expect the rules of 
 justice to vary from time to time, because a rule of conduct 
 is often a matter of expediency. Justice as such is a matter 
 of right and the progress of mankind consists in the transfer 
 of justice from the abstract to the concrete through rules of 
 law. But the experience of mankind shows that two agencies 
 are needed in this matter: one agency to determine what is 
 just in general and to make rules of law in accordance with 
 the conception of justice obtaining in the community; and 
 another agency to determine what is just in the particular 
 case, that is to say, to pick out, or by analogy to frame in ac- 
 cordance with general principles, the rule applicable to the 
 concrete case. One body is the legislature, the other is the 
 court. 
 
 If justice is the bond of men in states, if the administra- 
 tion of justice is the determination of what is just, and if 
 justice is the principle of order in political society, it behooves 
 us to strengthen the bond between men by increasing their 
 sense of and belief in justice, and by the greatest possible 
 care to introduce the greatest possible order in political society 
 through its administration. 
 
 The claim of the individual to determine his rights for 
 
OF INTERNATIONAL LAW 65 
 
 himself, to do justice in matters pertaining to himself, has 
 been utterly rejected as inconsistent with order in society; and 
 in every community, large or small, populous or sparsely 
 settled, the community determines by an agency of its own 
 what is right or wrong in the particular case, allowing the 
 disputant to be heard, but not permitting him to take part in 
 the decision. Can we suppose that justice is any less the bond 
 between states, made up of men bound together by justice, 
 and that the administration of justice between states, which 
 is the determination of what is just, can be any the less the 
 principle of order in this larger political society which we 
 call the society of nations? If we are of this opinion, and 
 it is hard to see how we can fail to share it, we must seek 
 to endow the society of nations with that organ or those or- 
 gans for the determination and the administration of justice, 
 whether the dispute be between the United States and Japan, 
 Great Britain and France, Austria-Hungary and Serbia, We 
 know only too well that the failure to administer justice, re- 
 sulting in the failure to determine what is just, is and has been 
 the cause of disorder in political society; and, if it be main- 
 tained that there has not been justice between states or enough 
 conscious justice to determine whether or not it be the 
 bond between states as between men, and that it is the princi- 
 ple of order between states as between men within one political 
 society, we certainly have had experience enough to> know that 
 the absence of justice between states and within the society of 
 nations is the cause of disorder. Would we not better appeal 
 from Philip drunk to Philip sober, or, more elegantly but 
 hardly less forcibly expressed, should we not turn our backs 
 upon these self-constituted sufficiencies the hereditary mon- 
 archy and appeal to Aristotle, who still rules in his own right, 
 not only in one country, but in every country, and not only in 
 one time, but in all time. 
 
 My purpose is not at present to advocate an international 
 court of justice, but to show that such a court is inevitable 
 if a society of nations is to exist and if justice is to be 
 
66 AMERICAN INSTITUTE 
 
 administered; because courts determine what is just in the 
 concrete case and in so doing maintain order in political 
 society, and, because we can not have a law of nations unless 
 there is some agency or means or method created by the 
 society of nations to determine what is just in a particular 
 case, and in such a way as to bind all the members of the 
 society by its decision. There must be some power in inter- 
 national society to determine this for itself, just as the smaller 
 political community determines it, without leaving it to the 
 nations in dispute, any more than a decision is left to the indi- 
 viduals in controversy. The society of nations must become 
 conscious of its existence and of its duties. It must have its 
 representative body to develop the law needed to maintain 
 order among its members, and it must have an agency to inter- 
 pret and to apply this law in appropriate cases. 
 
 The Three Difficulties Which Are Said to Stand in the Way 
 of Creating a Court for the Society of Nations 
 
 A great and distinguished friend of mine says that there 
 are three "lions" in the way of the establishment of an inter- 
 national court of justice. The first is the absence of law 
 which the court is to administer; the second is the difficulty 
 of getting the nations before the court, and the third is the 
 difficulty of securing compliance with the judgment when it 
 has been rendered. There are other difficulties, such as a 
 proper and acceptable method of appointing the judges of an 
 international tribunal ; but, if the society of nations is conscious 
 of its existence, and if its existence is recognized by each of the 
 members forming it, and, if the solidarity of the civilized na- 
 tions be a fact, as recognized by the First and Second Hague 
 Peace Conferences, the difficulties in the way of the court may 
 be overcome. The one great obstacle, in my opinion, is the ap- 
 parent lack of desire on the part of the nations for such a 
 court as shall be the organ of the society and by its decisions 
 bind every member. If the nations really wish such a court, 
 it can easily be created, and the best way to generate a will 
 
OF INTERNATIONAL LAW 67 
 
 or a desire is in my opinion not to denounce the nations, as is so 
 frequently done, but to show the existence of the society of na- 
 tions ; to make clear the need of a law of this society and the 
 necessity of a court to ascertain this law and to administer it. 
 Indeed, in my opinion, there is but one difficulty and that is 
 the failure on the part of the nations to appreciate to the 
 full the existence of the society of nations ; because if a society 
 exists, and the states admit that it does, it is inevitable that 
 this society should have law and that it should have an organ 
 for its administration. 
 
 But let me take up these three difficulties in the way of the 
 court. The first is said to be the absence of law. Now, of 
 course, this is a weighty and a serious reason, because a court 
 administers law, and if law does not exist it must make the 
 law that it is to administer. It is, however, the function of 
 a legislature, not of a court, to make law, although the latter 
 may and does develop the law by its decisions. But do we 
 lack law or do we lack it to the extent suggested in the ob- 
 jection? I believe not. The law of nations is no doubt an 
 imperfect and an inadequate system, but it exists. It may 
 be made more perfect and it may be made adequate to the 
 needs of nations, if it be the desire of the nations so to do, 
 or rather if the nations are convinced that order in political 
 societies depends, as Aristotle asserts, upon the administration 
 of justice. If I am right in supposing that half a dozen 
 principles of municipal law can be considered as the founda- 
 tion of law, international as well as national ; that these prin- 
 ciples may be translated into terms of international law and 
 extended as it were beyond the frontiers of the nations into 
 the international domain, the society of nations would have a 
 law as clear and as capable of development as the law of any 
 one of the states belonging to the society of nations. It was to 
 meet and to overcome this first great objection that I have laid 
 such stress upon the necessity of a law for the society of na- 
 tions, and as a contribution to this subject I shall, as I have al- 
 ready said, submit to the Institute at a subsequent meeting, the 
 
68 AMERICAN INSTITUTE 
 
 bases of the law of nations. But, supposing that the law does 
 not exist, are we to allow ourselves to be discouraged because 
 of this ? Are we not, rather, to take steps to bring it into ex- 
 istence? As a partial answer to the contention that the law 
 to be administered by an international court does not exist, I 
 would call your attention to the fact that, although the United 
 States has never codified international law or issued a system 
 of international law as such, there have been decided by the 
 Supreme Court of the United States some 2,800 cases 
 turning upon a principle of international law or in which 
 international law has been involved. This court, which is 
 really international, as it is the agent of forty-eight states 
 claiming to be sovereign, independent and equal in the matter 
 of justice between and among themselves, has apparently 
 not been impressed by the objection that the law did not 
 exist which it was to apply and has seemingly had no great 
 difficulty in ascertaining its principles. Indeed, the fundamental 
 principles of international law which I have laid before you 
 are based upon the fundamental principles of municipal law, 
 and have been stated by the Supreme Court of the United 
 States in judgments which are the best evidence of the exist- 
 ence of international law and of its claim to be considered a 
 branch of jurisprudence. But, leaving out of consideration 
 the judicial decisions of national courts, which, however, 
 exist in every country and deal with questions of international 
 law, an organ already exists which can make and develop 
 the law for the society of nations, according to the desire 
 of the nations themselves. I refer to the Hague Peace Con- 
 ferences and, without dwelling upon their importance in this 
 place, as I have previously mentioned it, I deem it only neces- 
 sary to say that even a cursory examination of their work 
 shows that they are none the less law-making, although they 
 may only modestly claim to be law-recommending bodies. 
 
 It thus appears that the nations can frame law to be ad- 
 ministered by the court, if the law be a prerequisite to the 
 creation of the court, supposing, of course, that the nations 
 
OF INTERNATIONAL LAW 69 
 
 are really convinced of the advisability of its establishment 
 and agree to take the steps necessary to call it into being. 
 
 The next lion in the way is to get the nations to submit 
 their disputes to the court. The way to do this is by an agree- 
 ment in the form of a treaty or convention, but this is only the 
 formal not the real difficulty, because there is a widespread 
 fear that the nations may not live up to their agreement to 
 submit disputes. The question thus arises, how can nations 
 that have agreed to resort to the court be compelled to do 
 so? Back of that are the questions whether you can compel 
 nations to live up to their agreements, or whether nations will 
 agree to a treaty or convention allowing force to be used 
 against them in order to compel the submission of disputes 
 of the very kind which they have pledged themselves to' lay 
 before the court. Many people whose judgment I respect 
 believe it possible to negotiate an agreement permitting the 
 parties to it to use their forces, as William Perm would say, 
 "united as one strength," to compel the submission of dis- 
 putes in accordance with the treaty or convention, and indeed 
 to secure by the same means, if necessary, the execution of 
 the judgments of the court if they are not complied with. 
 Personally, I can not bring myself to this point of view, for, 
 however much we may question it, we must rely in the end 
 upon the good faith of nations and, I believe, it is -only 
 public opinion which can quicken that faith into action. 
 
 The Good Faith of Nations Is Sufficient to Carry Out Their 
 Agreements Under the Pressure of an Enlightened 
 Public Opinion. 
 
 Without going into details, I would say that if the nations 
 should agree to submit their justiciable disputes to the court 
 of the society of nations and if, doubting compliance with the 
 pledged word, nations should either conclude a separate agree- 
 ment or insert in the original treaty or convention a provision 
 for uniting their forces to compel recalcitrant members to 
 lay the dispute of a justiciable nature before the court in ac- 
 
70 AMERICAN INSTITUTE 
 
 cordance with the agreement, we must perforce rely upon the 
 good faith of the nations to live up to their agreement to use 
 force against the recalcitrants. And, even if some few nations 
 should guarantee the execution of the agreement, pledging 
 themselves to combine their forces and either to compel the 
 recalcitrants to submit the case, or to compel the nations par- 
 ties to the agreement to unite their forces against the recalci- 
 trants, we should have to rely upon the good faith of the few 
 nations to use their forces for this purpose. If we must there- 
 fore in the last resort rely upon the good faith of the nations, 
 it seems to me that we should rely upon it in the beginning and 
 not tend to render it ineffective by appearing to doubt it. The 
 same observations apply equally to an agreement to secure 
 by force, if necessary, the execution of a judgment. There- 
 fore, as we must, whether we will or not, rely upon the good 
 faith of nations, it is surely incumbent upon us to refrain 
 from questioning it, and to use every means at our disposal 
 to strengthen a belief in good faith and by so doing to 
 strengthen good faith itself. 
 
 The Supreme Court of the United States Is in Form and 
 Procedure the Prototype of the Court for the Society 
 of Nations. 
 
 If public opinion is, as I believe, the only force which can 
 be counted upon to compel nations to carry out their promises, 
 we must endeavor to educate public opinion in every country 
 so that the resultant international opinion will be enlightened 
 as well as irresistible. But, fortunately, we do not need to 
 labor this question. The Supreme Court of the United States, 
 which many advocates of an international court of justice 
 regard as the prototype of such an institution, has had an 
 experience of a hundred years and more in settling disputes be- 
 tween states, which, for the purpose of justice, consider them- 
 selves as sovereign, independent and equal, and in the course 
 of the century and more of its existence, the Supreme Court 
 has devised a method of procedure which, satisfying the forty- 
 
OF INTERNATIONAL LAW 71 
 
 eight sovereign, independent and equal states of the American 
 judicial Union, may at least serve as a basis of procedure 
 likely to be acceptable to the forty-odd states composing the 
 society of nations. As I intend to lay a project of an inter- 
 national judiciary before the Institute at a later meeting, it 
 is perhaps unwise to enter into details at this time. I would 
 like to call your attention to the fact that the Constitution of 
 the United States, which creates what may be called, for pres- 
 ent purposes, a judicial union, provides that state may sue 
 state in the Supreme Court of the United States. And I 
 would like to lay before you some observations of a general 
 kind upon the practice of the Supreme Court considered in fact 
 if not in theory as an international tribunal. 
 
 It is inherent in the nature of a court to determine its com- 
 petence, and, as the states have agreed to sue one another in 
 questions concerning law and equity, it is necessary for the 
 court before taking jurisdiction to satisfy itself that the suit 
 is between states and that it involves a principle of law or of 
 equity. In other words, the court determines whether the 
 parties have a right to appear before the court, that is to say, 
 whether it has jurisdiction of the parties and whether it has 
 jurisdiction of the case; whether the dispute is justiciable, 
 whether it involves law or equity. 
 
 A doubt having arisen as to the right of the mixed com- 
 mission, organized under Article VII of the Jay Treaty of 1794 
 between Great Britain and the United States, to determine its 
 jurisdiction, the matter was referred to Lord Loughborough, 
 then Lord Chancellor of England, who replied "that the doubt 
 respecting the authority of the commissioners to settle their 
 own jurisdiction was absurd; and that they must necessarily 
 decide upon cases being within, or without, their competency." 1 
 
 In a very carefully considered and long-drawn-out boundary 
 dispute between Rhode Island and Massachusetts, two states 
 of the American judicial union, the Supreme Court considered 
 at length and in great detail the nature of a justiciable ques- 
 
 *Moore's International Arbitrations, Vol. I, p. 327. 
 
72 AMERICAN INSTITUTE 
 
 tion, and the difference between it and a political one. 1 From 
 time to time the Court has found itself obliged to reconsider 
 this question, which it has likewise treated as a julicial one. 
 It may therefore be said that as far as the United States is con- 
 cerned the distinction between a justiciable question and a 
 political one has been clearly determined in judicial proceed- 
 ings. There seems to be no valid reason why an international 
 court composed of judges as eminent as those who have 
 adorned the Supreme bench of the United States could not 
 be trusted to determine what is or is not a justiciable question, 
 and to refuse, as does the Supreme Court of the United States, 
 to take jurisdiction in political questions. 
 
 But to return to the "lion" which bars the way. How is a 
 state which has agreed to submit its justiciable questions to 
 a court to be compelled to live up to its agreement ? The ex- 
 perience of the Supreme Court in this matter is enlightening. 
 In the case of New Jersey v. New York, 2 decided in 1830, 
 the Supreme Court stated that it would, upon the request of 
 the plaintiff state, direct that a subpoena be issued out of the 
 Court against the state of New York and served upon the 
 Governor and Attorney General of the state, commanding 
 them to appear within the space of sixty days. The subpoena 
 was issued. It was served upon the Governor and the At- 
 torney General of the state, and yet the state did not make 
 its appearance by its appropriate agent. In these circum- 
 stances, the Court decided that the state of New Jersey could 
 proceed ex parte in the absence of the defendant and that a 
 judgment would be entered against the state of New York 
 by default. 3 Also the Court held in the case of Massachu- 
 setts v. Rhode Island that if a defendant state had appeared, 
 it might withdraw its appearance. Indeed, it further stated 
 that "no coercive measure will be taken to compel appear- 
 ance." 4 As the result of these proceedings we have it laid 
 
 !12 Peters' Reports, 657. 
 2 3 Peters' Reports, 461. 
 35 Peters' Reports, 284. 
 *12 Peters' Reports, 755. 
 
OF INTERNATIONAL LAW 73 
 
 down that a state may sue another state of the American 
 Union; that the defendant will be summoned, if the suit be- 
 tween the two states is of a justiciable nature; that the ap- 
 pearance of the defendant is left to its good faith acting under 
 the spur of public opinion, for the Court expressly declares 
 that coercive measures to compel the appearance of the state 
 will not be used. 
 
 In like manner, the Supreme Court has held that there is 
 no power on the part of the United States to compel by force 
 the execution of any judgment of the Supreme Court against 
 a state, saying, in the leading case of Kentucky v. Dennison: 
 "If the Governor of Ohio refuses to discharge this duty [of 
 surrendering a fugitive from justice in accordance with the 
 provision of the Constitution and a law of Congress] there 
 is no power delegated to the general Government, either 
 through the Judicial Department or any other department, to 
 use any coercive means to compel him." 1 
 
 It may also be mentioned in this connection that the Su- 
 preme Court modifies in suits between states the procedure that 
 would otherwise be employed in suits between individuals in 
 such a way as to permit the defendant state to present its de- 
 fense, while safeguarding the right of the plaintiff state to lay 
 its full case before the Court, so that the dispute may be con- 
 sidered and be decided upon its merits. 2 From these simple 
 statements, does it not appear that we have here a prototype 
 of an international court and of its procedure? The nations 
 can form a judicial union, just as they have formed many 
 public unions, notably the Postal Union, to which not only 
 all independent states but self-governing colonies are parties. 
 They may agree that their disputes of a justiciable nature 
 shall be submitted to and decided by the court of the judicial 
 union, which, like its American prototype, will determine before 
 taking jurisdiction that the case is one between state and state 
 parties to the union; that the dispute, as presented is justici- 
 able ; that the defendant state is to be invited to appear, not to be 
 
 124 Howard's Reports, 66, 109-10. 
 
 *Rhode Island v. Massachusetts, 14 Peters' Reports, 210. 
 
74 AMERICAN INSTITUTE 
 
 compelled by force to litigate the dispute ; that, in the absence 
 of the defendant state, the plaintiff state may present its case 
 and if it be supported by evidence and be justified in law a judg- 
 ment will be rendered, even in the absence of the defendant, 
 but that compliance with the judgment, like the appearance 
 of the defendant, depends upon the good faith of the states. 
 There is no superior in the society of nations and an agreement 
 creating an international court of justice for the decision of 
 their justiciable disputes simply creates an agency for the pur- 
 poses of justice, but does not make of the court a superior, with 
 power to compel appearance and with power to enforce obedi- 
 ence to its judgments. The experience of the Supreme Court 
 shows that good faith alone, acting under the pressure of public 
 opinion is sufficient. Is not the good faith of nations to be 
 trusted, as we trust the good faith of the states of the Ameri- 
 can Union, and is not the. public opinion of the society of na- 
 tions likely to be as powerful, if not more powerful than the 
 public opinion of one of them ? 
 
 The Court of the Society of Nations Must, as in the Ameri- 
 can System, Determine the Lawfulness of the Acts of 
 the Society and of Its Members. 
 
 Before concluding, for I am painfully conscious that I have 
 taxed your patience well nigh to the breaking point, let me 
 refer again to the function of a court of law, which seems so 
 elemental to us of the northern republic that we are in danger 
 of overlooking it or of not attaching to it sufficient importance. 
 
 I have frequently said, indeed I have constantly, con- 
 sciously and repeatedly said, that the American conception of 
 the state is that of a body politic created by the people for their 
 safety and happiness, with a form of government calculated 
 to secure to the people the enjoyment of their inalienable 
 rights, among which are life, liberty, and the pursuit of happi- 
 ness. The conception of the state as a body politic carries 
 with it as a corollary that the body politic is a creature of 
 the people and organized by them for certain specific purposes, 
 
OF INTERNATIONAL LAW 75 
 
 as is and must be a corporation; that the state as such can 
 neither have nor exercise rights which are not granted or al- 
 lowed to it by the people, and that the government created by 
 the people is invested with certain rights and with certain 
 duties in order to fulfil the purpose for which it, as well as the 
 state was created, namely, to contribute to the safety and 
 happiness of the people. This means to an American that the 
 state itself is subordinated to law because it can only do that 
 which it has been authorized by law to do; that the govern- 
 ment is likewise subordinated to law ; and that all the acts of 
 both are tested by law. If they are found to be within the 
 grant of power, the acts are valid. If they are found to be in 
 excess of the grant, they are invalid. 
 
 The government does not and the officers of the government 
 interested in the exercise of power do not pass upon these 
 questions. In the American system, the judiciary sits in 
 judgment upon the acts of the highest officers, letting them 
 stand if there is a warrant for them in law, quashing them if 
 they are contrary to law. In the American system the legis- 
 lature is a body invested with certain rights and denied 
 others. If an act thereof is within the grant of power, it is 
 valid ; if it be in excess of the grant, it is invalid. But, as in 
 the case of the government, neither the legislature nor the 
 members thereof pass upon the validity of their acts; the 
 court of justice determines whether the act is or is not in 
 accordance with the grant. Finally, in the American system, 
 the rights and duties of the Executive Department, the rights 
 and duties of the Legislative Department, and the functions 
 of the Judiciary are stated and defined in the constitution, 
 which reserves to the people the rights which have not been 
 specifically granted away. 
 
 Law has always been looked upon in the English-speaking 
 colonies as the bulwark of their rights and of their liberties. 
 The colonists had to know exactly the nature and extent of 
 their charters in order that they might not be deprived of their 
 rights. In the contest between the body politic or corpora- 
 
76 AMERICAN INSTITUTE 
 
 tion called the colony or province, and the larger corporation 
 known as England, the necessity of understanding the sphere 
 rightfully claimed and exercised by each, made knowledge of 
 the law essential. An act of the colony in excess of its grant 
 was set aside. It was natural, therefore, that the new states, 
 familiar with this process, should invest their courts with the 
 faculty of testing the rightful exercise of power by the United 
 States, by any department of the government, or by the state 
 as against the government, or by the legislature within the 
 state. The United States was the first country in the world 
 to have the acts of the government and of the congress passed 
 upon by the courts, to be set aside if inconsistent with the con- 
 stitutional grant of power. The American system is indeed a 
 government of laws, not of men, and the distinguished Ameri- 
 can publicist, the Honorable Simeon E. Baldwin, whose 
 authority I have invoked on a previous occasion, finely summed 
 up the effect of the separation of the colonies from Great 
 Britain when he said : "Loyalty to law took the place of loyalty 
 to king." 
 
 The acceptance of the American conception of the state re- 
 quires the acceptance of the American doctrine that the acts 
 of the state, irrespective of the official character of the person 
 who has commited the acts, shall be subordinate, not superior, 
 to the constitution, and that the validity of these acts shall 
 be tested by a court of justice applying the fundamental law 
 of the constitution to the act called in question. For, as 
 the distinguished diplomat, jurist and statesman, the late 
 Edward J. Phelps, has truly and happily said: 
 
 American experience has made it an axiom in political 
 science that no written constitution of government can 
 hope to stand without a paramount and independent tri- 
 bunal to determine its construction and to enforce its pre- 
 cepts in the last resort. This is the great and foremost 
 duty cast by the Constitution, for the sake of the Consti- 
 tution, upon the Supreme Court of the United States. 1 
 
 1 Orations and Essays of Edward John Phelps, 1901, pp. 58-59. 
 
OF INTERNATIONAL LAW 77 
 
 Cooperation not Federation of Nations Is the World's 
 
 Need 
 
 Are we to rest content with the loose and ill-defined union 
 which we call the society of nations, or are we to create by 
 conscious effort a federated state? Instead of perfecting what 
 we have, are we to create something differing in kind as well 
 as in degree? Many people advocate a world state, that is, 
 they look upon the states of the world as merged into a fed- 
 eral state or as forming parts of a universal state. But it 
 seems to me doubtful whether such a state be possible and if 
 possible whether it is desirable. In any event, its creation 
 seems to be so remote, depending as it does upon the conscious 
 renunciation of independence, although equality is maintained, 
 that we may be pardoned if we content ourselves at least for 
 the present with more modest proposals. 
 
 We can not hope to realize our ambitions at a bound. 
 Progress is not by revolution, but through a continuous, suc- 
 cessive series of small changes. From earliest childhood 
 we are familiar with this truth, but it is to be feared 
 that when we grow up we do indeed put away childish 
 things and forget the lines, as applicable to the world at 
 large as they are to the nursery, concerning "little drops of 
 water and little grains of sand." We must be content to 
 make haste slowly, if the work of our hands is to stand the 
 test of our successors and if it is to be in itself a round in the 
 ladder of progress. We should, I think, insist upon coopera- 
 tion or common action toward a common end, the.end being 
 the common good of nations. We must frankly recognize the 
 existence of the society of nations, composed of nations equal 
 and independent; that these nations are united as the Hague 
 Conferences have said by solidarity, and that every action 
 taken be measured in terms of the general interest. 
 
 The question arises, how can these nations best cooperate? 
 Put in this form, the question answers itself, for they can 
 not in a common interest very well work apart. I think and 
 I have long thought that we should consciously try to do on 
 
78 AMERICAN INSTITUTE 
 
 a large scale what has been done well and successfully on 
 a small scale, in the hope that each step forward will be an 
 incentive to a further step, and that little by little the problem 
 will solve itself. We should not relax our efforts if what we 
 accomplish does not seem to advance the cause or fit appreciably 
 into the general scheme of things. Logic has its place in the 
 schools, but history is not necessarily logical. Political 
 science is a thing of practice and of experience. The test is 
 not whether a thing is logically perfect, but whether it works 
 well, whether it accomplishes the purpose for which it was 
 created. When sufficient progress has been made, we can then 
 see whither we are tending and perhaps discover a general 
 principle by the aid of which we may accelerate the rate of 
 progress. Very often the little things lay down the great prin- 
 ciple. Very often private initiative points the way to official 
 action. This slow, tentative, hesitating, experimental method 
 is, I think, more necessary in international than in national 
 relations, because nations are fearful, and properly so, lest 
 they take a false step. If an individual makes a mistake, he 
 may undo its consequences, but a nation may by a false step 
 jeopardize its existence, or by entering into an untried agree- 
 ment it may sacrifice or seem to sacrifice its independence. 
 
 The Universal Postal Union Is the Type of a Cooperative 
 
 Union 
 
 In the past fifty or sixty years we have had experience with 
 the so-called international unions, some of which are of a pri- 
 vate, others of a public, nature. Each union deals with a specific 
 subject, and the possibility of the union has been tested by 
 results. The nations taking part in the creation of the union 
 did so because they felt that the union might do good and, as 
 they were free to withdraw, they felt they could safely be par- 
 ties to its creation and in its operation. Take as an example 
 the Universal Postal Union, to which all independent nations 
 and to which also self-governing colonies are signatories. This 
 union was formed in 1874, upon the initiative of Germany, 
 
OF INTERNATIONAL LAW 79 
 
 and the revised convention today in force was signed at Rome 
 on May 26, 1906. The fact that self-governing colonies or 
 dominions are members means and can only mean that sov- 
 ereignty is not involved, because if it were, self-governing but 
 not sovereign communities conld not be members. 
 
 The fact is, something needed to be done and each state 
 and self-governing community had an interest in having it 
 done. It was natural that what concerned all should be done 
 by all, that the nations should come together, that they should 
 cooperate, that they should take common action for a common 
 purpose toward a common goal, namely, the transmission of 
 postal correspondence to, from and through each of them. 
 
 They felt that differences of opinion might arise and the}'- ap- 
 preciated the advantage of settling these differences by peaceful 
 means. They therefore provided in Article 43 that any differ- 
 ences of opinion or disputes arising between postal administra- 
 tions, or that any differences of opinion as to the interpretation 
 of the convention should be submitted to arbitration, each dis- 
 putant appointing an arbiter and the two selecting an umpire. 
 It was evident to the partisans of this union that the nations 
 should meet regularly at stated times to revise the convention, 
 and this has been done. It was foreseen that the successful 
 operation of the union would require administrative ma- 
 chinery. Therefore, a permanent office of the union was 
 created at Berne. All this seems simple enough. It has 
 come about so naturally and so quietly that we hardly take 
 note of its existence; yet this Universal Postal Convention 
 not only points the way, but is the way to international organ- 
 ization, because it creates a union of the nations having a 
 common interest in postal matters. 
 
 It provides for a periodic meeting of representatives of 
 the contracting powers to legislate in postal matters. From 
 this standpoint, it may be called a legislative union, although 
 restricted to matters of postal correspondence. 
 
 It also provides a method of settling differences of opinion 
 and disputes between and among its members and for the 
 
80 AMERICAN INSTITUTE 
 
 authoritative interpretation of the convention. In this aspect, 
 it is a judicial union. 
 
 It further provides for a central office to look after the in- 
 terests of the union, and to see that its provisions are carried 
 out. In this respect it is an administrative union in postal 
 matters. 
 
 I could illustrate the same process of development by citing 
 other public unions, likewise of a special kind, but the Postal 
 Union is sufficient for present purposes. May we not properly 
 ask whether the time will not come, if it is not already at hand, 
 to consolidate these different unions, with the result that we 
 shall have for many purposes a legislative union, a judicial union 
 and an administrative union from those which already exist? 
 
 My purpose, however, is not at present to enter further into 
 details, but to show how easy it would be for the nations to 
 tread, as it were, in their own footsteps and to organize a 
 union differing in degree rather than in kind from those 
 which already exist. It is pertinent, however, to ask 
 ourselves, is it necessary to organize a union? Does 
 not the union which we have in mind already exist, al- 
 though we do not seem to be conscious, as we ought to be, 
 of its existence? The society of nations is a union, how- 
 ever loose and indefinite it may be when compared with the 
 conscious, definite, restricted postal union. The Hague Con- 
 ference, meeting at stated periods, would be a legislature, not 
 in the national but in the international sense, which is another 
 way of saying that it is a diplomatic body which does not 
 enact laws, but which recommends treaties and conventions 
 for the ratification of the nations taking part in its proceedings. 
 If it has been found possible for the nations to agree to settle 
 by arbitration disputes arising under the postal convention, 
 including its interpretation or application, can not these same 
 nations agree to constitute in advance of the dispute an ar- 
 bitral or a judicial body for the trial and disposition of dis- 
 putes when and as they arise? When this is done, the society 
 of nations will have a judicial union. The first step toward? 
 
OF INTERNATIONAL LAW 81 
 
 it, and that a very long one, was taken in 1899 at the First 
 Hague Conference, by the creation of the so-called Permanent 
 Court of Arbitration. The administrative council at The 
 Hague, composed as it is of the nations accredited to the 
 Netherlands, could act either as a body or through committees 
 as the administrative organ of the society. 
 
 Suarez on the Society and Law of Nations 
 
 A great and a learned Spaniard, one Suarez by name, thus 
 stated in classic terms in the early days of the seventeenth 
 century the need of a society of nations and of a law to regu- 
 late the conduct of its members : 
 
 The human race, however divided into various peoples 
 and kingdoms, has always not only its unity as a species 
 but also a certain moral and quasi-political unity, pointed 
 out by the natural precept of mutual love and pity which 
 extends to all, even to foreigners of any nation. Where- 
 fore although every perfect state, whether a republic or 
 a kingdom, is in itself a perfect community composed of 
 its own members, still each such state, viewed in relation 
 to the human race, is in some measure a member of that 
 universal unity. For those communities are never singly 
 so self-sufficing but that they stand in need of some 
 mutual aid, society and communion, sometimes for the 
 improvement of their condition and their greater com- 
 modity, but sometimes also for their moral necessity 
 and need, as appears by experience. For that reason they 
 are in need of some law by which they may be directed 
 and rightly ordered in that kind of communion and society. 
 And although this is to a great extent supplied by natural 
 reason, yet it is not so supplied sufficiently and immedi- 
 ately for all purposes, and therefore it has been possible 
 for particular laws to be introduced by the practice (usu) 
 of those same nations. For just as custom (consuetudo) 
 introduces law in a state or province, so it was possible 
 for laws to be introduced in the whole human race by 
 the habitual conduct (moribus) of nations. And that 
 all the more because the points which belong to this law 
 are few and approach very nearly to natural law, and 
 
82 AMERICAN INSTITUTE 
 
 being easily deduced from it are useful and agreeable to 
 nature, so that although this law can not be plainly de- 
 duced as being altogether necessary in itself to laudable 
 conduct (ad honestatem morum), still it is very suitable 
 to nature and such as all may accept for its own sake. 1 
 
 We look upon recent events, such as the Hague Conferences, 
 as establishing this union, whereas in fact it existed, and must 
 have existed, from the very moment that intercourse of in- 
 dependent states was permitted, because recognized as a ne- 
 cessity. The First Hague Conference of 1899 brought this 
 simple truth home to the most bourgeois among us, and in- 
 deed our state of mind at the present day is largely com- 
 parable to that of Monsieur Jourdain, when he learned that 
 he had been writing prose : 
 
 Monsieur Jourdain. Now let me tell you something in confi- 
 dence. I am in love with a lady of high rank and I want 
 you to help me to write her a little note which I intend 
 to drop at her feet. 
 
 Professor of Philosophy. Certainly. 
 
 Monsieur Jourdain. That would be a gallant thing to do; 
 wouldn't it? 
 
 Professor of Philosophy. Undoubtedly. Do you want to 
 write it in verse? 
 
 Monsieur Jourdain. No, no, not verse. 
 
 Professor of Philosophy. You prefer mere prose? 
 
 Monsieur Jourdain. No, I don't want either prose or verse. 
 
 Professor of Philosophy. But you must have one or the other. 
 
 Monsieur Jourdain. Why? 
 
 Professor of Philosophy. Because, monsieur, there is no way 
 to express ourselves except in prose or verse. 
 
 Monsieur Jourdain. Is there nothing but prose and verse? 
 
 Professor of Philosophy. Nothing, monsieur. All that is not 
 prose is verse ; all that is not verse is prose. 
 
 Monsieur Jourdain. When we talk, what's that? 
 
 Professor of Philosophy. Prose. 
 
 l Tractatus de Legibus et Deo Legislature, 2, 19, 9 (1611) ; translated in 
 The Collected Papers of John Westlake on Public International Law, 
 1914, p. 27. 
 
OF INTERNATIONAL LAW 83 
 
 Monsieur Jourdain. What ! when I say, "Nicole, bring me my 
 slippers and give me my night-cap," is that prose? 
 
 Professor of Philosophy. Yes, monsieur. 
 
 Monsieur Jourdain. Good Heavens! I've been talking prose 
 these forty years and never knew it. I am certainly very 
 much obliged to you for teaching me that. 1 
 
 I have dwelt at considerable length upon these matters, be- 
 cause the burning question at the present day is the organiza- 
 tion of the society of nations in such a way as to secure the 
 administration of justice between the states which will as- 
 suredly prove to be the principle of order in this larger politi- 
 cal society as it has proved itself to be such in the smaller 
 political society with which we are more familiar. I have tried 
 to show that the society of nations exists; that if it exists 
 it must have a law; that if it has a law it must have some 
 authoritative agent to interpret this law and to apply it to the 
 disputes which must needs arise between the members of the 
 society. 
 
 That the American Institute, composed of an equal number 
 of representative publicists from each national society created 
 in every one of the twenty-one American republics shall bring 
 to bear upon the world the fact that a society of nations ex- 
 ists; that there is a solidarity among its members; that a law 
 is needed to regulate the conduct of each nation toward all 
 others within the society, and that there must be an agency 
 to develop and to create this law, as well as an agency to ascer- 
 tain it and to apply it to the disputes whenever they shall arise 
 between nations, is the hope not only of its founders, of the 
 national societies with which it will cooperate, of all right- 
 minded men, but also of all men of good will, for the peace 
 which is the perfected fruit of justice is the promise of the 
 Gospel only to men of good will. 
 
 1 Moliere: Le Bourgeois Gentilhotnme, Act II, Scene iv. 
 
REMARKS ON INTRODUCING THE DECLARATION 
 OF THE RIGHTS AND DUTIES OF NATIONS, 
 JANUARY 6, 1916. 
 
 Gentlemen : 
 
 It is my very great pleasure, in pursuance of a promise 
 made in a previous session, to lay before you a project which, 
 if it should meet with your approval, will, I venture to hope, 
 supply a firm and secure foundation upon which the temple 
 of American justice can safely rest. It is a very ambitious 
 project, and I therefore submit it to your consideration with 
 no little misgiving. 
 
 At a time when the very existence of international law is 
 being questioned, it is incumbent upon us to examine with 
 great care the fundamental principles upon which the law of 
 nations must rest if there either is or is to be a system of 
 justice between nations, to ascertain and to state those princi- 
 ples, and to bring them home to every man of light and lead- 
 ing in the continent. It is our duty as well as our privilege 
 to devise a method not merely for the dissemination of a 
 knowledge and an understanding of them but a method of de- 
 veloping them in such a way that rules, based upon these fun- 
 damental principles, shall be formulated in order that there 
 may be a standard of conduct common to the American Re- 
 publics, based upon a system of justice not only common to 
 them but deeply imbedded in the life and thought of their 
 citizens, in the full consciousness that the principles of jus- 
 tice and the rules of conduct acceptable to the American Re- 
 publics are capable of a universal application. 
 
 It has seemed to me that no great good would come from 
 a discussion of the rules of conduct in isolated cases and that, 
 even with the greatest good will in the world and although 
 armed with industry and devotion, we could do little in this 
 way and in this first session calculated to improve or to ad- 
 
OF INTERNATIONAL LAW 85 
 
 vance the law of nations. The different projects which have 
 been proposed for study and investigation are indeed admi- 
 rable, but to make progress upon an uncharted sea we must 
 be sure of the point of departure and the goal which we would 
 reach. Let me reenforce these views by the language of a 
 great American statesman, particularly applicable to the storm 
 and stress in which we exist rather than live, and let me ex- 
 press the hope that his words of wisdom may be as a glass 
 to the eye and as a lamp to our feet. In the very first words 
 of his reply to Hayne, Daniel Webster said : 
 
 When the mariner has been tossed for many days in 
 thick weather, and on an unknown sea, he naturally avails 
 himself of the first pause in the storm, the earliest glance 
 of the sun, to take his latitude, and ascertain how far the 
 elements have driven him from his true course. Let us 
 imitate' this prudence, and before we float farther on the 
 waves of this debate, refer to the point from which we de- 
 parted, that we may at least be able to conjecture where 
 
 In justification of the large part which duty plays in the 
 project which I am about to lay before you, let me quote the 
 language of another great statesman of my country, whose 
 reputation is not confined to the United States and whose name 
 is as a household word in the American Republics. On open- 
 ing the Conference of Teachers of International Law in the 
 City of Washington in 1914, Mr. Elihu Root said: 
 
 I think no one can study the movement of the times 
 without realizing the democracy of the world — for it is 
 not alone in this country — is realizing its rights in ad- 
 vance of a realization of its duties. And that way lies 
 disaster, that way lies hideous wrong, that way lies the 
 exercise of the mighty powers of modern democracies to 
 destroy themselves, to destroy the vitality of the princi- 
 
 JWhipple's "Great Speeches and Orations of Daniel Webster," 1879, 
 . 227. 
 
86 AMERICAN INSTITUTE 
 
 pies upon which they depend. . . . Unless the 
 popular will responds to the instructed and competent 
 leadership of opinion upon the vital question of our for- 
 eign relations, the worst impulses of democracy will con- 
 trol. At the bottom of wise and just action lies an under- 
 standing of national rights and national duties. Half the 
 wars of history have come because of mistaken opinions 
 as to national rights and national obligations, have come 
 from the unthinking assumption that all the right is on 
 the side of one's own country, all the duty on the side of 
 some other country x 
 
 Gentlemen, I ask your consideration of a proposed Declara- 
 tion of the Rights and Duties of Nations, preceded by a pre- 
 amble and followed by a commentary. 
 
 1 Root's Addresses on International Subjects, 1916, pp. 127-8. 
 
DECLARATION OF THE RIGHTS AND DUTIES OF NATIONS 
 adopted by the American Institute of International Law at 
 its first session in the City of Washington, January 6, 1916 
 
 WHEREAS the municipal law of civilized nations recognizes 
 and protects the right to life, the right to liberty, the right to the 
 pursuit of happiness, as added by the Declaration of Independence 
 of the United States of America, the right to legal equality, the right 
 to property, and the right to the enjoyment of the aforesaid rights; 
 and 
 
 WHEREAS these fundamental rights, thus universally recog- 
 nized, create a duty on the part of the peoples of all nations to ob- 
 serve them ; and 
 
 WHEREAS, according to the political philosophy of the Declara- 
 tion of Independence of the United States, and the universal prac- 
 tice of the American Republics, nations or governments are re- 
 garded as created by the people, deriving their just powers from the 
 consent of the governed, and are instituted among men to promote 
 their safety and happiness and to secure to the people the enjoyment 
 of their fundamental rights ; and 
 
 WHEREAS the nation is a moral or juristic person, the creature 
 of law, and subordinated to law as is the natural person in political 
 society ; and 
 
 WHEREAS we deem that these fundamental rights can be stated 
 in terms of international law and applied to the relations of the 
 members of the society of nations, one with another, just as they 
 have been applied in the relations of the citizens or subjects of the 
 states forming the Society of Nations ; and 
 
 WHEREAS these fundamental rights of national jurisprudence, 
 namely, the right to life, the right to liberty, the right to the pursuit 
 of happiness, the right to equality before the law, the right to prop- 
 erty, and the right to the observance thereof are, when stated in 
 terms of international law, the right of the nation to exist and to 
 protect and to conserve its existence ; the right of independence and 
 the freedom to develop itself without interference or control from 
 other nations ; the right of equality in law and before law ; the right 
 to territory within defined boundaries and to exclusive jurisdiction 
 therein; and the right to the observance of these fundamental 
 rights ; and 
 
 WHEREAS the rights and the duties of nations are, by virtue 
 of membership in the society thereof, to be exercised and performed 
 in accordance with the exigencies of their mutual Interdependence 
 expressed in the preamble to the Convention for the Pacific Settle- 
 ment of International Disputes of the First and Second Hague 
 Peace Conferences, recognizing the solidarity which unites the mem- 
 bers of the society of civilized nations; 
 
88 AMERICAN INSTITUTE 
 
 THEREFORE, The American Institute of Interna- 
 tional Law, at its first session, held in the City of Washing- 
 ton, in the United States of America, on the sixth day of Jan- 
 uary, 1916, adopts the following six articles, together with the 
 commentary thereon, to be known as its 
 
 Declaration of the Rights and Duties of Nations 
 
 I. Every nation has the right to exist, and to protect 
 and to conserve its existence; but this right neither im- 
 plies the right nor justifies the act of the state to protect 
 itself or to conserve its existence by the commission of 
 unlawful acts against innocent and unoffending states. 
 
 II. Every nation has the right to independence in the 
 sense that, it has a right to the pursuit of happiness and is 
 free to develop itself without interference or control from 
 other states, provided that in so doing it does not inter- 
 fere with or violate the rights of other states. 
 
 III. Every nation is in law and before law the equal of 
 every other nation belonging to the society of nations, and 
 all nations have the right to claim and, according to the 
 Declaration of Independence of the United States, "to as- 
 sume, among the powers of the earth, the separate and 
 equal station to which the laws of nature and of nature's 
 God entitle them." 
 
 IV. Every nation has the right to territory within de- 
 fined boundaries and to exercise exclusive jurisdiction 
 over its territory, and all persons whether native or 
 foreign found therein. 
 
 V. Every nation entitled to a right by the law of nations 
 is entitled to have that right respected and protected by 
 all other nations, for right and duty are correlative, and 
 the right of one is the duty of all to observe. 
 
 VI. International law is at one and the same time both 
 national and international: national in the sense that it is 
 the law of the land and applicable as such to the decision 
 of all questions involving its principles ; international in the 
 sense that it is the law of the society of nations and appli- 
 cable as such to all questions between and among the mem- 
 bers of the society of nations involving its principles. 
 
Official Commentary upon the Declaration of the 
 Rights and Duties of Nations, adopted January 6, 
 1916. 
 
 I. Every nation has the right to exist, and to protect 
 and to conserve its existence; but this right neither im- 
 plies the right nor justifies the act of the state to protect 
 itself or to conserve its existence by the commission of 
 unlawful acts against innocent and unoffending states. 
 
 This right is to be understood in the sense in which the 
 right to life is understood in national law, according to which 
 it is unlawful for a human being to take human life, unless 
 it be necessary so to do in self-defense against an unlawful 
 attack threatening the life of the party unlawfully attacked. 
 
 In the Chinese Exclusion Case (reported in 130 United 
 States Reports, pp. 581, 606), decided by the Supreme Court 
 of the United States in 1888, Mr. Justice Field said for the 
 Court : 
 
 To preserve its independence, and give security against 
 foreign aggression and encroachment, is the highest duty 
 of every nation, and to attain these ends nearly all other 
 considerations are to be subordinated. It matters not in 
 what form such aggression and encroachment come, 
 whether from the foreign nation acting in its national 
 character or from vast hordes of its people crowding in 
 upon us. The government, possessing the powers which 
 are to be exercised for protection and security, is clothed 
 with authority to determine the occasion on which the 
 powers shall be called forth; and its determination, so 
 far as the subjects affected are concerned, are necessarily 
 conclusive upon all its departments and officers. 
 
 The right of a state to exist and to protect and to conserve 
 its existence is to be understood in the sense in which the 
 right of an individual to his life was denned, interpreted and 
 applied in terms applicable alike to nations and individuals 
 
90 AMERICAN INSTITUTE 
 
 in the well known English case of Regina vs. Dudley (re- 
 ported in 15 Cox's Criminal Cases, p. 624; 14 Queen's Bench 
 Division, p. 273), decided by the Queen's Bench Division of 
 the High Court of Justice in 1884, to the effect that it was 
 unlawful for shipwrecked sailors to take the life of one of 
 their number, in order to preserve their own lives, because it 
 was unlawful according to the common law of England for 
 an English subject to take human life, unless to defend him- 
 self against an unlawful attack of the assailant threatening 
 the life of the party unlawfully attacked. 
 
 The right of a State to exist and to protect and to conserve 
 its existence, as laid down by the Supreme Court of the United 
 States, is recognized not merely in the United States but in 
 Latin America, as appears from the views of the well-known 
 publicists, Messrs. Bello and Calvo, who may be considered 
 representative of Latin American thought and practice. 
 
 Thus Bello, writing in 1832, said : 
 
 There is no doubt that every nation has the right of 
 self-preservation and is entitled to take protective meas- 
 ures against any danger whatsoever ; but this danger must 
 be great, manifest and imminent, in order to make, it 
 lawful for us to exact by force that another nation alter 
 its institutions for our benefit. (Andres Bello, Principios 
 de Derecho de Jentes, part 1, chap. 1, VII.) 
 
 And Calvo, half a century later, said: 
 
 One of the essential rights inherent in the sovereignty 
 and the independence of States is that of self-preserva- 
 tion. This right is the first of all absolute or permanent 
 rights and is the fundamental basis of a great number 
 of accessory, secondary, or occasional rights. We may 
 say that it constitutes the supreme law of nations, as well 
 as the most imperative duty of citizens, and a society that 
 fails to repel aggression from without neglects its moral 
 duties toward its members and fails to live up to the very 
 purpose of its institution. (Carlos Calvo, Le Droit Inter- 
 national Theorique et Pratique , 5th ed., Vol. 1, § 208.) 
 
OF INTERNATIONAL LAW 91 
 
 II. Every nation has the right to independence in the 
 sense that, it has a right to the pursuit of happiness and is 
 free to develop itself without interference or control from 
 other states, provided that in so doing it does not inter- 
 fere with or violate the rights of other states. 
 
 III. Every nation is in law and before law the equal of 
 every other state composing the society of nations, and 
 all nations have the right to claim and, according to the 
 Declaration of Independence of the United States, "to as- 
 sume, among the powers of the earth, the separate and 
 equal station to which the laws of nature and of nature's 
 God entitle them." 
 
 The right to independence and its necessary corollary, equal- 
 ity, is to be understood in the sense in which it was defined in 
 the following passage quoted from the decision of the great 
 English admiralty judge, Sir William Scott, later Lord 
 Stowell, in the case of The Louis (reported in 2 Dodson's 
 Reports, pp. 210, 243-44), decided in 1817: 
 
 Two principles of public law are generally recognized 
 as fundamental. One is the perfect equality and entire 
 independence of all distinct states. Relative magnitude 
 creates no distinction of right; relative imbecility, 
 whether permanent or casual, gives no additional right 
 to the more powerful neighbor ; and any advantage seized 
 upon that ground is mere usurpation. This is the great 
 foundation of public law, which it mainly concerns the 
 peace of mankind, both in their politic and private capaci- 
 ties, to preserve inviolate. The second is, that all nations 
 being equal, all have an equal right to the uninterrupted 
 use of the unappropriated parts of the ocean for their 
 navigation. In places where no local authority exists, 
 where the subjects of all states meet upon a footing of 
 entire equality and independence, no one state, or any of 
 its subjects, has a right to assume or exercise authority 
 over the subjects of another. 
 
 The right of equality is also to be understood in the sense 
 in which it was stated and illustrated by John Marshall, Chief 
 Justice of the Supreme Court of the United States, who said, 
 
92 AMERICAN INSTITUTE 
 
 in deciding the case of The Antelope, in 1825 (reported in 
 10 Wheaton's Reports, pp. 66, 122) : 
 
 In this commerce thus sanctioned by universal assent, 
 every nation had an equal right to engage. How is this 
 right to be lost? Each may renounce it for its own 
 people; but can this renunciation affect others? 
 
 No principle of general law is more universally ac- 
 knowledged, than the perfect equality of nations. Russia 
 and Geneva have equal rights. It results from this 
 equality, that no one can rightfully impose a rule on 
 another. Each legislates for itself, but its legislation can 
 operate on itself alone. A right, then, which is vested in 
 all, by the consent of all, can be divested only by consent ; 
 and this [slave] trade, in which all have participated, 
 must remain lawful to those who can not be induced to 
 relinquish it. As no nation can prescribe a rule for 
 others, none can make a law of nations; and this traffic 
 remains lawful to those whose governments have not 
 forbidden it. 
 
 The right of equality is further to be understood in the 
 sense in which it was expressed and illustrated by Mr. Elihu 
 Root, in the following passage from the address which he 
 delivered, when Secretary of State of the United States, and 
 in the presence of the official delegates of the American Re- 
 publics accredited to the Third Pan American Conference held 
 at Rio de Janeiro on July 31, 1906: 
 
 We wish for no victories but those of peace; for no 
 territory except our own; for no sovereignty except the 
 sovereignty over ourselves. We deem the independence 
 and equal rights of 'the smallest and weakest member of 
 the family of nations entitled to as much respect as those 
 of the greatest empire, and we deem the observance of 
 that respect the chief guaranty of the weak against the 
 oppression of the strong. We neither claim nor desire 
 any rights, or privileges, or powers that we do not freely 
 concede to every American Republic. We wish to in- 
 crease our prosperity, to expand our trade, to grow in 
 wealth, in wisdom, and in spirit, but our conception of 
 
OF INTERNATIONAL LAW 93 
 
 the true way to accomplish this is not to pull down others 
 and profit by their ruin, but to help all friends to a com- 
 mon prosperity and a common growth, that we may all 
 become greater and stronger together. 
 
 It would seem that the measured judgments of Lord Stowell 
 and of Chief Justice Marshall, not to speak of Mr. Root's 
 opinion, given as Secretary of State, are sufficient to estab- 
 lish a principle of international law, and that it is unneces- 
 sary to cite other authorities, if the ones already quoted fail 
 to produce conviction. In order to show, however, that inde- 
 pendence and equality are the law of the American Continent, 
 the authority of the two great Latin American publicists may 
 be again invoked. 
 
 Thus, Bello says : 
 
 From the independence and the sovereignty of nations 
 it follows that no one nation is permitted to dictate to 
 any other nation the form of government, of religion, or 
 of administration that it must adopt, or to hold it ac- 
 countable for the relations between its citizens or those 
 between the government and its subjects. (Bello, Prin- 
 cipios de Derecho de Jentes, part 1, chap. 1, VII.) 
 
 All men being equal, the groups of men composing 
 universal society are equal. The weakest republic enjoys 
 the same rights and is subject to the same duties as the 
 mightiest empire. (Bello, Principios de Derecho de Jentes, 
 part 1, chap. 1, II.) 
 
 And to the same effect, but more at length, Calvo says : 
 
 States possess, by virtue of the law of their organiza- 
 tion and of their sovereignty, their own exclusive and 
 particular sphere of action. In this respect, they depend 
 upon no one and are bound to provide for the mainte- 
 nance of those rights and for the observance of those 
 duties alone which are the fundamental and necessary 
 basis of every free society. Absolute sovereignty neces- 
 sarily implies complete independence. Hence States, in 
 so far as they are moral persons, have a fundamental 
 right : the right of freely carrying out their destinies ; and 
 
94 AMERICAN INSTITUTE 
 
 a duty that is no less imperative : the duty of recognizing 
 and of respecting the sovereign rights and the absolute 
 Independence of other States. (Calvo, Le Droit Inter- 
 national Theorique et Pratique, 5th ed., Vol. I, § 107.) 
 
 The equality of sovereign States is a generally recog- 
 nized principle of public law. It has the twofold conse- 
 quence of giving all States the same rights and of impos- 
 ing upon them the same mutual duties. The relative size 
 of their territories cannot justify, in this regard, the 
 slightest difference or the slightest distinction be- 
 tween nations considered as moral persons, and, 
 from the point of view of international law, as 
 well as from that of equity, what is lawful or un- 
 just for one State is likewise lawful or unjust for all 
 others. "Nothing can be done to a small or weak nation," 
 said Mr. Sumner in the United States Senate on March 
 23, 1871, "that would not be done to a large or powerful 
 nation, or that we would not allow to be done to our- 
 selves." (Calvo, Le Droit International Theorique et 
 Pratique, Sth ed., Vol. I, § 210.) 
 
 IV. Every nation has the right to territory within de- 
 fined boundaries and to exercise exclusive jurisdiction 
 over its territory, and all persons whether native or 
 foreign found therein. 
 
 This right is to be understood in the sense in which it was 
 stated by Chief Justice Marshall in the following passage of 
 his judgment in the case of the schooner Exchange (reported 
 in 7 Cranch's Reports, pp. 116, 136-7), decided by the 
 Supreme Court of the United States in the year 1812 : 
 
 The jurisdiction of the nation, within its own territory, 
 is necessarily exclusive and absolute ; it is susceptible of no 
 limitation, not imposed by itself. Any restriction upon it, 
 deriving validity from an external source, would imply 
 a diminution of its sovereignty, to the extent of the 
 restriction, and an investment of that sovereignty, to the 
 same extent, in that power which could impose such re- 
 striction. All exceptions, therefore, to the full and com- 
 plete power of a nation, within its own territories, must 
 
OF INTERNATIONAL LAW 95 
 
 be traced up to the consent of the nation itself. They can 
 flow from no other legitimate source. 
 
 This consent may be either express or implied. In the 
 latter case, it is less determinate, exposed more to the 
 uncertainties of construction ; but, if understood, not less 
 obligatory. The world being composed of distinct sov- 
 ereignties, possessing equal rights and equal independence, 
 whose mutual benefit is promoted by intercourse with 
 each other, and by an interchange of those good offices 
 which humanity dictates and its wants require, all sover- 
 eignties have consented to a relaxation, in practice, in 
 cases under certain peculiar circumstances, of that abso- 
 lute and complete jurisdiction within their respective ter- 
 ritories which sovereignty confers. This consent may, in 
 some instances, be tested by common usage, and by com- 
 mon opinion, growing out of that usage. A nation would 
 justly be considered as violating its faith, although that 
 faith might not be expressly plighted, which should sud- 
 denly and without previous notice, exercise its territorial 
 powers in a manner not consonant to the usages and 
 received obligations of the civilized world. . . . 
 
 This perfect equality and absolute independence of sov- 
 ereigns, and this common interest impelling them to mu- 
 tual intercourse, and an interchange of good offices with 
 each other, have given rise to a class of cases in which 
 every sovereign is understood to waive the exercise of a 
 part of that complete exclusive territorial jurisdiction, 
 which has been stated to be the attribute of every nation. 
 
 In view of the fulness of Chief Justice Marshall's exposi- 
 tion of this right and its consequences, and in view also of the 
 acceptance of The Exchange as an authority in every civilized 
 country, both as to the right and its limitation, it does not seem 
 necessary to quote statements of Latin-American publicists, in 
 order to sustain what may be called the obvious, and which is 
 deeply imbedded in the legislation of the American Republics. 
 
 In lieu of many illustrations that might be drawn from the 
 civil codes of the Latin-American States, one will suffice, 
 namely, Article 14 of the civil code of Chile, which declares 
 that, 
 
96 AMERICAN INSTITUTE 
 
 the law is binding upon all the inhabitants of the Repub- 
 lic, including foreigners. 
 
 V. Every nation entitled to a right by the law of nations 
 is entitled to have that right respected and protected by 
 all other nations, for right and duty are correlative, and 
 the right of one is the duty of all to observe. 
 
 This right is to be understood in the sense in which it was 
 stated in the following passage from the judgment of Chief 
 Justice Waite in the case of United States vs. Arjona (reported 
 in 120 United States Reports, pp. 479, 487), decided by 
 the Supreme Court of the United States in 1886, holding that 
 as each nation had by international law the exclusive right to 
 fix its standard of money, it was the duty of the United States 
 as a member of the Society of Nations to protect the money of 
 a foreign country, in this case Colombia, from forgery: 
 
 But if the United States can require this of another, 
 that other may require it of them, because international 
 obligations are of necessity reciprocal in their nature. The 
 right, if it exists at all, is given by the law of nations, 
 and what is law for one is, under the same circumstances, 
 law for the other. A right secured by the law of nations 
 to a nation, or its people, is one the United States as 
 the representatives of this nation are bound to protect. 
 
 VI. International law is at one and the same time both 
 national and international: national in the sense that it is 
 the law of the land and applicable as such to the decision 
 of all questions involving its principles ; international in the 
 sense that it is the law of the society of nations and appli- 
 cable as such to all questions between and among the mem- 
 bers of the society of nations involving its principles. 
 
 International law, then called the law of nations, was de- 
 clared by judges and commentators before the Declaration of 
 Independence of the United States to form an integral part 
 of the common law of England, and by judges and comrnen~ 
 
OF INTERNATIONAL LAW 97 
 
 tators of the United States as adopted at one and the same time 
 with the adoption of the common law of which it formed an 
 integral part. Thus, in the case of Buvot v. Barbuit (reported 
 in Cases Tempore Talbot, p. 281), decided by Lord Chancellor 
 Talbot in 1733, that distinguished judge and upright man is 
 reported by Lord Mansfield, who was then the ornament of 
 the bar and was counsel in the case, to have said : 
 
 That the law of nations, in its full extent, was part of 
 the law of England. That the act of Parliament was de- 
 claratory, and occasioned by a particular incident. That 
 the law of nations was to be collected from the practice 
 of different nations, and the authority of writers. 
 
 In the case of Triquet v. Bath (reported in 3 Burrow, p. 
 1478), decided by the Court of King's Bench in 1764, Lord 
 Chief Justice Mansfield held, quoting the judgment of Lord 
 Talbot in Buvot v. Barbuit, that the law of nations was part 
 of the law of England; and three years later, in the leading 
 case of Heathfield v. Chilton (reported in 4 Burrow, p. 2015), 
 Lord Chief Justice Mansfield reiterated his opinion, stating 
 that, 
 
 the privileges of public ministers and their retinue depend 
 upon the law of nations ; which is part of the common law 
 of England. And the act of Parliament of 7 Ann. c. 12 
 did not intend to alter, nor can alter the law of nations. 
 
 The distinguished commentator, Sir William Blackstone, 
 who had been counsel in both these cases tried before Lord 
 Mansfield, wrote in the first edition of the fourth volume of 
 his Commentaries upon the Laws of England, published in 
 1769, that: 
 
 The law of nations (wherever any question arises which 
 is properly the object of its jurisdiction) is here adopted 
 in its full extent by the common law, and is held to be a 
 
98 AMERICAN INSTITUTE 
 
 part of the law of the land. And those acts of Parlia- 
 ment, which have from time to time been made to enforce 
 this universal law, or to facilitate the execution of its de- 
 cisions, are not to be considered as introductive of any 
 new rule, but merely as declaratory of the old funda- 
 mental constitutions of the Kingdom; without which it 
 must cease to be a part of the civilized world. 
 
 In accordance with the views of English judges interpreting 
 and applying the Common Law and in reliance upon the ex- 
 press language of the illustrious English commentator from 
 whom they had learned their law, the Revolutionary statesmen 
 of North America understood and stated that international law 
 was a part of the law of the United States. Thus, Thomas Jef- 
 ferson, Secretary of State under Washington's Administration, 
 referred in the year 1793 to "the laws of the land, of which the 
 law of nations makes an integral part." (American State 
 Papers, Foreign Relations, Vol. 1, p. ISO.) His great opponent, 
 Alexander Hamilton, differing in most respects from Thomas 
 Jefferson, nevertheless concurred in the view that international 
 law was a part of the law of the land, and explained it more 
 elaborately than Mr. Jefferson in the following passage quoted 
 from the essays which Hamilton, under the pseudonym of 
 Camillus, wrote for the Press in 1795 in defense of the Jay 
 Treaty : 
 
 A question may be raised — Does this customary law 
 of nations, as established in Europe, bind the United 
 States? An affirmative answer to this is warranted by 
 conclusive reasons. 
 
 1. The United States, when a member of the British 
 Empire, were, in this capacity, a party to that law, and not 
 having dissented from it, when they became independent, 
 they are to be considered as having continued a party 
 to it. 
 
 2. The common law of England, which was and is in 
 force in each of these States, adopts the law of nations, 
 the positive equally with the natural, as a part of itself. 
 
OF INTERNATIONAL LAW 99 
 
 3. Ever since we have been an independent nation, we 
 have appealed to and acted upon the modem law of nations, 
 as understood in Europe — various resolutions of Congress 
 during our Revolution, the correspondence of executive of- 
 ficers, the decisions of our courts of admiralty, all recog- 
 nize this standard. 
 
 4. Executive and legislative acts, and the proceedings 
 of our courts, under the present government, speak a simi- 
 lar language. The President's proclamation of neutrality 
 refers expressly to the modern law of nations, which must 
 necessarily be understood as that prevailing in Europe, and 
 acceded to by this country; and the general voice of our 
 nation, together with the very arguments used against the 
 treaty, accord in the same point. It is indubitable, that 
 the customary law of European nations is as a part of the 
 common law, and, by adoption, that of the United States. 
 (Lodge's "Works of Alexander Hamilton," 1885, Vol. 
 V, pp. 89-90.) 
 
 A recent decision of the Supreme Court of the United States 
 defines the relation of international law to the law of the land 
 as it was stated by Sir William Blackstone in his Commentaries 
 published before the American Revolution. Thus, in the case 
 of The Paquete Habana (reported in 175 United States Re- 
 ports, pp. 677, 700), decided in 1899, Mr. Justice Gray, deliv- 
 ering the opinion of the Court, said : 
 
 International law is part of our law, and must be ascer- 
 tained and administered by the courts of justice of appro- 
 priate jurisdiction, as often as questions of right depend- 
 ing upon it are duly presented for their determination. 
 For this purpose, where there is no treaty, and no con- 
 trolling executive or legislative act or judicial decision, 
 resort must be had to the customs and usages of civilized 
 nations ; and, as evidence of these, to the works of jurists 
 and commentators, who, by years of labor, research, and 
 experience, have made themselves peculiarly well ac- 
 quainted with the subjects of which they treat. Such 
 works are resorted to by judicial tribunals, not for the 
 speculations of their authors concerning what the law 
 ought to be but for trustworthy evidence of what the law 
 really is. 
 
100 AMERICAN INSTITUTE 
 
 It may be said in summing up the relation of inter- 
 national law to the common law of England and to the 
 municipal law of the United States, that international law is 
 part of the English common law; that as such it passed with 
 the English colonies to America; that when, in consequence 
 of successful rebellion, they were admitted to the society 
 of nations, the new Republic recognized international law as 
 completely as international law recognized the new Republic. 
 Municipal law it was in England; municipal law it remained 
 and is in the United States. Without expressing an opinion 
 upon the vexed question whether it is law in the abstract, the 
 courts, State and Federal, take judicial cognizance of its exist- 
 ence, and in appropriate cases enforce it, so that for the Amer- 
 ican student or practitioner international is domestic or muni- 
 cipal law. 
 
 The constitutions of certain Latin-American States ex- 
 pressly lay down the principle of Anglo-American law that 
 international law is part of the law of the land. Thus, Article 
 106 of the constitution of the Dominican Republic and Arti- 
 cle 125 of the constitution of Venezuela, which admits the prin- 
 ciple with certain limitations. The constitution of Colombia 
 of 1863 expressly declared that "The law of nations forms 
 part of the national legislation," and an eminent American 
 publicist specially versed in such matters states that "the au- 
 thorities of the country are understood, in their treatment of 
 neutrality and other questions, to have acknowledged the con- 
 tinuing force of the principle." In other constitutions of the 
 American Republics the principle is not stated in express 
 terms. It is, however, recognized implicitly or for specific 
 cases; for example, Articles 31, 100, and 101 of the constitu- 
 tion of Argentina ; Articles 59, 60, and 61 of the constitution 
 of Brazil; Article 73 of the constitution of Chile; Article 107 
 of the constitution of Honduras ; Article 96 of the constitution 
 of Uruguay, etc., etc. 
 
 The laws of Latin-American countries — notably those re- 
 lating to judicial procedure or to the organization of judicial 
 
OF INTERNATIONAL LAW 101 
 
 authority — recognize, expressly or implicitly, the principle in 
 question. In all the American countries the rules of inter- 
 national law have been treated as in force in their proclama- 
 tions of neutrality in the great European war. 
 
 In future it must be expressly admitted as the basis of 
 the public law of the New World that international law is part 
 of the national legislation of every country. This is not only 
 a principle of justice but one that is necessary to facilitate and 
 to strengthen the friendly relations of all States. 
 
 The following impressive language of an eminent citizen of 
 the American continent, Daniel Webster, to be found in an 
 official instruction written when he was Secretary of State of 
 the United States of America, may be quoted as a statement 
 in summary form of the rights and duties of nations, especially 
 of the American Republics : 
 
 Every nation, on being received, at her own request, 
 into the circle of civilized governments, must understand 
 that she not only attains rights of sovereignty and the 
 dignity of national character, but that she binds herself to 
 the strict and faithful observance of all those princi- 
 ples, laws, and usages which have obtained currency 
 among civilized states, and which have for their object 
 the mitigation of the miseries of war. 
 
REMARKS AT THE CLOSING SESSION OF THE 
 AMERICAN INSTITUTE OF INTERNATIONAL 
 LAW, JANUARY 8, 1916. 
 
 There must, gentlemen, be an end to all things, and the time 
 has come for the Institute to adjourn, but not to close, its 
 labors. Indeed, I might rather say that the time has come, or 
 will come with the adjournment, to begin the serious work 
 which has drawn us together and which we hope will justify 
 our existence. A few days ago, when we met for the first 
 time, we came together as publicists from the different coun- 
 tries of America deeply interested in international law and 
 impressed with the belief that direction could be properly 
 given to our efforts by a central organization, such as the 
 American Institute of International Law. We close our ses- 
 sion today as members of an organization embracing the 
 publicists of the American continent. We have defined the 
 objects, the aims and the purposes of the Institute, and the 
 means whereby they may be realized. We have considered 
 the relations that should exist between the Institute on the 
 one hand and the twenty-one national societies of interna- 
 tional law on the other and have found them to consist in 
 cooperation under a central direction. We have completed 
 the election of members of the Institute by selecting in each 
 instance the five publicists rcommended by the national socie- 
 ties for membership in the Institute. We have chosen the 
 officers and we have agreed upon a method of procedure. 
 
 These facts would in themselves have justified the session, 
 but we have done more than that. We have placed interna- 
 tional law upon firm and larger foundations. We have 
 adopted principles of justice which must and will regulate 
 the relations of nations, if those relations are to be peaceful, 
 
OF INTERNATIONAL LAW 103 
 
 as they will assuredly be if based upon principles of justice. 
 We have adopted a declaration of the rights and duties of 
 nations, to which we have prefixed a preamble stating the 
 reasons for the declaration and a commentary justifying each 
 one of the articles. In so doing, we have confessed our faith 
 in justice as the one great concern of nations, as it is the one 
 great concern of people within national lines, and we have ex- 
 pressed within the compass of half a dozen articles the funda- 
 mental principles upon which a stately and adequate structure 
 of international law can be raised. 
 
 But we do not intend to content ourselves with the adoption 
 of this declaration. We must strive by all the influence which 
 we possess to make it a reality and to make it the measure 
 of right and wrong in the relations of the American Republics 
 one with another. The declaration of the rights and duties 
 of nations is peculiarly an American document. It speaks not 
 alone of rights, but it couples them with duties, because in any 
 just conception right and duty are correlative, coexistent and 
 coextensive, and, where peoples of the past have been prone to 
 assert their rights, we are bold enough to proclaim our duties. 
 We believe in the substitution of law for force, and that in 
 this western continent law should control the conduct of 
 states as well as the actions of men. 
 
 We have therefore stated the rights and duties of nations, 
 not in terms of philosophy or of ethics, but in terms of law, 
 and we have supported and justified each of the six articles 
 forming the declaration by an adjudged case of the Supreme 
 Court of the United States, thus asserting that these principles 
 are law, that they have been and therefore can be administered 
 in courts of justice; and we furthermore express the hope and 
 confess our faith in the fact that they will be considered as 
 law by the American Republics, that they will be applied in 
 their mutual relations and that they will be interpreted, de- 
 fined and developed in courts of justice, as, in the last resort, 
 courts of justice must pass upon the actions of nations just 
 as they pass upon the actions of men. We have shown by the 
 
104 AMERICAN INSTITUTE 
 
 adoption of the declaration that we believe in international 
 law as a branch of jurisprudence, and the adoption of the 
 declaration makes it possible to consider, to study, to expound 
 and to develop it as such — a result which would indeed justify 
 publicists in coming from all of the American Republics. 
 
 With the acceptance of the Declaration of the Rights and 
 Duties of Nations the American Institute is in a position to 
 take up and to consider in the light of fundamental principles 
 of justice the various projects which have been submitted by 
 its members during the session and especially the projects pre- 
 sented by the National Societies. 
 
 These will be referred to a commission in order that they 
 may be examined as their importance deserves and, accompa- 
 nied by a Report, they will be transmitted to the National So- 
 cieties and laid before the next session of the Institute for such 
 action as its members may, in their wisdom and in the fulness 
 of knowledge, be minded to take. 
 
 In separating, we should have the consciousness that we have 
 meant well and that we have done well. We have moreover 
 the very great satisfaction of knowing that our acts have met 
 with the approval not merely of the members who> have taken 
 part in the session but that they have excited the interest and 
 expectation of the countries to which our members belong. 
 For have we not been invited by the Government of Cuba dur- 
 ing the course of this session to hold the next session of the 
 Institute in the City of Havana as the guests of the nation? 
 We have accepted this courteous invitation in the hope that 
 we may prove to be not unworthy of the consideration shown 
 us, and, in declaring the first session of the American Institute 
 closed, I express the hope that we shall all meet in the City 
 of Havana in the Republic of Cuba in the year 1917. 
 
APPENDIX 
 
Appendix 
 
 CONSTITUTION OF THE AMERICAN INSTITUTE 
 OF INTERNATIONAL LAW 
 
 Article I. Name 
 
 An association is founded to be known as the American 
 Institute of International Law. 
 
 Article II. Object 
 
 The American Institute of International Law is an unof- 
 ficial scientific association. 
 It proposes: 
 
 1. To give precision to the general principles of interna- 
 tional law as they now exist, or to formulate new ones, in 
 conformity with the solidarity which unites the members of 
 the society of civilized nations, in order to strengthen these 
 bonds and, especially, the bonds between the American peoples ; 
 
 2. To study questions of international law, particularly 
 questions of an American character, and to endeavor to 
 solve them, either in conformity with generally accepted prin- 
 ciples, or by extending and developing them, or by creating 
 new principles adapted to the special needs of the American 
 Continent ; 
 
 3. To discover a method of codifying the general or special 
 principles of international law, and to elaborate projects of 
 codification on matters which lend themselves thereto; 
 
 4. To aid in bringing about the triumph of the principles 
 of justice and of humanity which should govern the relations 
 between peoples, considered as nations, through more exten- 
 sive instruction in international law, particularly in American 
 universities, through lectures and addresses, as well as through 
 publications and all other means ; 
 
 5. To organize the study of international law along truly 
 scientific and practical lines in a way that meets the needs of 
 modern life, and taking into account the problems of our hem- 
 isphere and American doctrines; 
 
108 AMERICAN INSTITUTE 
 
 6. To contribute, within the limits of its competence and 
 the means at its disposal, toward the maintenance of peace, 
 or toward the observance of the laws of war and the mitiga- 
 tion of the evils thereof ; 
 
 7. To increase the sentiment of fraternity among the Re- 
 publics of the American Continent, so as to strengthen friend- 
 ship and mutual confidence among the citizens of the coun- 
 tries of the New World. 
 
 Article III. Membership- 
 
 The American Institute of International Law is composed 
 of committees or delegates of the national societies of inter- 
 national law established in the different American Republics, 
 which are affiliated therewith and of which it is the permanent 
 representative. 
 
 It comprises : 
 
 1. Charter members; 
 
 2. Titular members; 
 
 3. Ex officio members; 
 
 4. Corresponding members. 
 
 The charter members are those who accepted this designa- 
 tion by signing, in 1912, the draft which has now become the 
 present Constitution. 
 
 The titular members, chosen exclusively from among the 
 publicists of the different Republics of the American Conti- 
 nent, are elected by the Institute, in conformity with the next 
 article. No Republic may have more than five such members 
 at one and the same time. 
 
 If the secretary general of the national society of inter- 
 national law in any one of the American Republics is not 
 personally a member of the Institute, he becomes of right a 
 member ex officio, that is to say, by virtue of and for the 
 term of his office. Ex officio members have, as such, the same 
 rights as titular members. 
 
OF INTERNATIONAL LAW 109 
 
 Jurists of non-American nationality, who, through their 
 writings or their activity, shall have contributed to the prog- 
 ress of international law, may be elected corresponding 
 members. 
 
 Corresponding members are invited to attend all the ses- 
 sions of the Institute, with the same rights and privileges as 
 American members. They have not, however, the right to 
 vote either on administrative or scientific questions. 
 
 They are called upon to give their opinion on questions sub- 
 mitted to the consideration of the Institute, and they are 
 active collaborators thereof. 
 
 They are exempt from the entrance fee and annual dues. 
 
 No one State can have more than three such members. 
 
 Article IV. National Societies 
 
 The national societies organized in each American Republic 
 for the study and popularization of international law, whose 
 members are jurists versed in international law, may affiliate 
 with the American Institute. The members of these societies 
 are entitled to attend the sessions of the Institute, but they may 
 not take part in its deliberations nor may they vote. 
 
 The affiliated national societies propose duly qualified per- 
 sons from among their nationals, for election as titular mem- 
 bers by the Institute. 
 
 The members of the national societies, who are members of 
 the Institute, constitute, in their country, a governing com- 
 mittee of the said society, which committee is the intellectual 
 bond between the national society and the Institute. 
 
 The committee communicates, either directly, or through 
 the secretary general of the national society, with the sec- 
 retary general of the Institute, and sends him all the trans- 
 actions and projects of the said society or informs him of the 
 progress that has been made upon them. 
 
 The secretary general of the Institute transmits these trans- 
 actions and projects in full, in part, or a synopsis thereof to 
 the different national societies. 
 
110 AMERICAN INSTITUTE 
 
 Article V. Officers 
 
 The officers of the Institute are an honorary president, a 
 president, a secretary general, and a treasurer. 
 
 Before the close of each session there is an election of an 
 honorary president and a president, who remain in office until 
 the election of their successors at the following session. 
 
 The application of the foregoing second paragraph is pro- 
 visionally suspended until the Institute shall have decided 
 otherwise. 
 
 In the elections individual ballots are cast, and only the 
 members present are permitted to vote. Nevertheless, absent 
 members are allowed to send their votes in writing, in sealed 
 envelopes. Candidates must receive a majority of the votes 
 of the members present, as well as a majority of all the votes 
 validly cast, in order to be elected. 
 
 Article VI. Executive Council 
 
 An Executive Council is the governing body of the In- 
 stitute. 
 
 It meets at Washington, the seat of the Institute. 
 
 It is composed of the president, the secretary general, and 
 the treasurer, who are members ex officio, and of two other 
 members elected at the beginning of each session. They are 
 eligible for re-election. 
 
 It has the right to increase its membership and itself elects 
 additional members, if it deems it necessary. 
 
 Article VII. Secretary General 
 
 The secretary general is elected by the Institute for three 
 sessions. He is eligible for re-election. 
 
 He has in his charge the drafting of the minutes of each 
 meeting, all the publications of the Institute, its routine work, 
 its correspondence, and the execution of its decisions, unless 
 the Institute provides otherwise. He is keeper of its seal and 
 
OF INTERNATIONAL LAW 111 
 
 of its archives. At the beginning of each session he presents 
 a summary of the work of the preceding session. 
 
 Article VIII. Assistant Secretaries 
 
 On the proposal of the secretary general, the Institute may 
 appoint one or more assistant secretaries, to aid him in the 
 performance of his duties or to represent him in his absence. 
 
 Article IX. Treasurer 
 
 The treasurer is elected for three sessions. He is eligible 
 for re-election. 
 
 He has in his charge the financial affairs of the Institute, 
 under the control of the Executive Council. He presents a 
 detailed report at each session. 
 
 Two members are designated at the first meeting as audi- 
 tors, and present, during the session, a report on the result of 
 their examination of the treasurer's accounts. 
 
 Article X. Reporters 
 
 The Executive Council submits questions for examination 
 and study to the affiliated national societies, or appoints re- 
 porters from among its members, or organizes committees for 
 the preparatory study of questions that are to be submitted to 
 the deliberations of the Institute. 
 
 In urgent cases, the secretary general himself prepares the 
 reports. 
 
 Article XL Sessions 
 
 There shall be at least one session of the Institute every two 
 years; but the Executive Council may, during this interval, 
 call an extra session of the Institute. 
 
 At each session the Institute designates the place and the 
 time of the following session. It may leave this designation 
 to the Executive Council, 
 
1 12 AMERICAN INSTITUTE 
 
 Article XII. Languages 
 
 French, the language of the Institut de droit international 
 and of the Peace Conferences, is likewise the language of the 
 Institute. 
 
 Nevertheless the use of Spanish, Portuguese, and English, 
 as national languages, is permitted as of right. 
 
 Every official document that is to be published is translated 
 into the language or languages selected by the officers. 
 
 Article XIII. Publication of Proceedings 
 
 After each session, the Institute publishes an account of 
 its proceedings. 
 
 Article XIV. Dues and Funds 
 
 The expenses of the Institute are covered : 
 
 1. By the dues of its members, as well as by an entrance fee. 
 The dues are, unless the by-laws provide to the contrary, 
 
 an entrance fee of ten dollars and annual dues of five dollars. 
 The dues are payable from and including the year of election. 
 They entitle the member to all the publications of the Insti- 
 tute. An unjustifiable delay of more than three years in the 
 payment of dues may be considered as equivalent to a resig- 
 nation. 
 
 2. By foundations and other gifts. 
 
 It is proposed that a fund be gradually formed, the in- 
 come from which shall be devoted to the expenses of the 
 sessions, of the publications, of the secretariat, and of Other 
 routine matters. 
 
 Article XV. Amendments. 
 
 The present constitution may be revised or amended, in 
 whole or in part, at a regular session, on the request of a 
 majority of the members present and voting. 
 
BY-LAWS OF THE AMERICAN INSTITUTE OF 
 INTERNATIONAL LAW 
 
 PART I 
 
 Members 
 
 Article I 
 
 The titular members of the Institute are elected by it from 
 the list of names presented by the affiliated national society. 
 
 Article II 
 
 Where no affiliated national society exists or where the 
 existing society neglects to present candidates, the Institute 
 provides for nominations or vacancies as it sees fit. 
 
 Article III 
 
 Corresponding members are elected by the Institute on the 
 proposal of the Executive Council, at the meeting devoted 
 to the election of titular members. 
 
 PART II 
 
 Preliminary Work between Sessions 
 
 Article IV 
 
 By article X of the Constitution the Executive Council 
 presents the questions for study, either by laying them before 
 the national societies, or by designating two reporters, or one 
 reporter and a committee of study for each question. 
 
 In the former case, the subject, with or without a ques- 
 tionnaire, is submitted to each national society. 
 
 If two reporters are appointed, each of them prepares a 
 memorandum, after which one of them or a third reporter des- 
 ignated by the Executive Council prepares a report on the basis 
 of and with the assistance of the memoranda presented. 
 
 If a reporter and a committee of study are designated, the 
 reporter must get into communication with the members of the 
 
114 AMERICAN INSTITUTE 
 
 committee before the 31st of December of the year of his 
 appointment, and submit his ideas to them and learn their 
 views. 
 
 Every member, who signifies his desire to that effect, has 
 the right to be a member of such of the committees of study as 
 he shall indicate to the secretary general. 
 
 Article V 
 
 The national societies and the reporters must transmit their 
 studies or reports to the secretary general in ample time for 
 their publication and distribution before the session at which 
 they are to be discussed. 
 
 The secretary general does not provide for the printing or 
 distribution of other reports or documents prepared by the 
 reporters or by members of committees or of the Institute. 
 Such works are published only in exceptional cases and by 
 virtue of an express decision on the part of the Institute or 
 the Executive Council. 
 
 PART III 
 
 Sessions 
 
 Article VI 
 
 There may be no more than one session each year. The in- 
 terval between two sessions must not exceed two years. 
 
 At each session the Institute designates the place and time 
 of the next session. This designation may be left to the 
 Executive Council (Constitution, Article XI). In this case, 
 the secretary general informs the national societies affiliated 
 with the Institute, at least four months in advance, of the 
 place and date determined upon. 
 
 Article VII 
 
 The program of the session is drawn up by the Executive 
 Council, and the secretary general brings it to the attention 
 of the national societies as soon as possible. 
 
OF INTERNATIONAL LAW 115 
 
 The program must be accompanied by the summary of the 
 progress made on the preparatory work, as well as by all other 
 information that may facilitate the labors of the members 
 taking part in the session. 
 
 Article VIII 
 
 Members who desire to propose new questions for study are 
 invited to lay them before the Executive Council at the be- 
 ginning of the session. This invitation must be extended by 
 the president at the opening of the sessions. 
 
 Article IX 
 
 The president, after consultation with the Executive Coun- 
 cil and the reporters, determines the order in which the sub- 
 jects should be treated; but the program is in all cases under 
 the control of the Assembly itself. 
 
 PART IV 
 
 Meetings 
 
 Article X 
 
 The meetings are devoted to scientific work. 
 
 The titular members and the corresponding members take 
 part in them. The former have the right to vote; the latter 
 have the right merely to take part in the discussions. 
 
 The meetings are not public. The Executive Council may, 
 however, permit the attendance of the local authorities and 
 press, as well as of persons who request to be admitted. 
 
 Article XI 
 
 Unless otherwise resolved by a special decision of the Exec- 
 utive Council, the president delivers an address immediately 
 after the opening of the first meeting. 
 
 The secretary general presents a summary of the work of 
 the last session and makes known the names of the assistant 
 
116 AMERICAN INSTITUTE 
 
 secretaries or editors whom he has appointed to aid him in 
 drawing up the minutes of the session. 
 
 The assistant secretaries or editors hold office only during 
 the session. 
 
 Article XII 
 
 The treasurer is then requested to present his accounts to 
 the Institute, and two auditors are thereupon elected to exam- 
 ine the accounts of the treasurer. The auditors present their 
 report in the course of the session (Constitution, Art. IX), 
 
 Article XIII 
 
 Each meeting is opened by the reading of the minutes of 
 the preceding meeting. 
 
 Separate minutes are drawn up for each meeting, even 
 when there are more than one on the same day; but the 
 minutes of the morning meeting are read only at the opening 
 of the next day's meeting. 
 
 The members present approve or revise the minutes. Re- 
 vision can be requested only in the matter of wording, of 
 errors, or of omissions. A decision cannot be changed in the 
 minutes. 
 
 The minutes of the last meeting of a session are approved 
 by the president. 
 
 Article XIV 
 
 If the Executive Council deems it advisable to consider a 
 matter as urgent, it may propose the immediate discussion 
 thereof, and, if the majority of the members present agree, 
 the matter may be put to vote in the course of this session; 
 otherwise the proposition is of right postponed until the fol- 
 lowing session. 
 
 Article XV 
 
 Committees may be appointed during a meeting for the 
 examination of certain questions. These committees may, in 
 turn, appoint sub-committees. 
 
OF INTERNATIONAL LAW 117 
 
 Article XVI 
 
 The propositions of the reporters and of the committees 
 form the basis of the deliberations in the meetings. 
 
 The members of committees have the right to complete and 
 develop their individual opinions. 
 
 Article XVII 
 
 The discussion is then opened. It takes place in the lan- 
 guages indicated in Article XII of the constitution. 
 
 At the request of the members, the discussion may be 
 summed up in French. 
 
 Article XVIII 
 
 No one may speak without having been previously recog- 
 nized by the president. 
 
 The latter notes the names of the members who request 
 the floor and recognizes them in the order of their requests. 
 
 The reporters, however, when the question on which they 
 have made a report is under discussion, are not subject to the 
 rule of speaking in turn. The same is true of the president 
 of the committee. 
 
 Article XIX 
 
 The reading of an address is forbidden, unless specially 
 authorized by the president. 
 
 Article XX 
 
 If a speaker digresses too far from the subject under con- 
 sideration, the president calls his attention to the fact and re- 
 quests him to speak to the question. 
 
 Article XXI 
 
 All propositions and all amendments are submitted, in writ- 
 ing, to the president. 
 
1 18 AMERICAN INSTITUTE 
 
 Article XXII 
 
 If a point of order is raised during a deliberation, the dis- 
 cussion of the main question is suspended until the assembly 
 passes upon the point of order. 
 
 Article XXIII 
 
 The closing of the discussion may be proposed. The discus- 
 sion may not, however, be declared closed, unless a two-thirds 
 majority of the assembly so votes. 
 
 If no one demands the floor or if it has been resolved 
 to close the discussion, the president declares the discussion 
 closed. Thereafter no one may be given the floor, except, in 
 special cases, the reporter or the president of the committee. 
 
 Article XXIV 
 
 Before proceeding to a vote, the president submits to the 
 assembly the order in which the questions will be voted upon. 
 
 If there are objections to the order, the assembly passes 
 upon them at once. 
 
 Article XXV 
 
 Amendments to amendments are put to vote before amend- 
 ments, and the latter before the main question. Proposals 
 purely and simply to reject the question are not considered 
 amendments. 
 
 Where there are more than two alternate main propositions, 
 they are all put to vote, one after the other, and every member 
 may vote for one of them. When a vote has thus been taken 
 on all the propositions, if none of them has obtained a ma- 
 jority, the members decide, by another ballot, which of the two 
 propositions receiving the least number of votes must be elim- 
 inated. The remaining propositions are then voted upon in 
 the same manner until only one is left, upon which a definitive 
 vote may be taken. 
 
OF INTERNATIONAL LAW 119 
 
 Article XXVI 
 
 The adoption of an amendment to an amendment does not 
 bind a member to vote for the amendment itself ; neither does 
 the adoption of an amendment obligate a member to vote in 
 favor of the main proposition. 
 
 Article XXVII 
 
 When a proposition is capable of being divided, any member 
 may request a vote by division. 
 
 Article XXVIII 
 
 When the proposition under consideration is drawn up in 
 several articles, the proposition as a whole is first subjected 
 to general discussion. 
 
 After such discussion and the vote on its articles, the propo- 
 sition as a whole is put to vote. Such vote may be postponed 
 until a subsequent meeting. 
 
 Article XXIX 
 
 The voting is done by raising the hand. 
 
 No one is bound to take part in a vote. If some of the 
 members present abstain, the question is decided by the 
 majority of those voting. 
 
 In case of a tie, the proposition is considered defeated. 
 
 Article XXX 
 
 The vote may be taken by roll-call, if five members so 
 request. There is always occasion for a roll-call on a scien- 
 tific proposition as a whole. 
 
 The minutes mention the names of the members voting for 
 or against and the names of those who abstain. 
 
120 AMERICAN INSTITUTE 
 
 Article XXXI 
 
 The Institute may decide that a second deliberation should 
 take place, either in the course of the session, or during the 
 following session, or that its decisions be referred to a draft- 
 ing committee to be designated by itself or by the Executive 
 Council. 
 
Officers and members of the American 
 institute of international law 
 
 Officers 
 
 Elihu Root, Honorary President 
 James Brown Scott, President 
 Alejandro Alvarez, Secretary General 
 Luis Anderson, Treasurer 
 
 Executive Council 
 
 Elihu Root 
 
 James Brown Scott 
 
 Alejandro Alvarez 
 
 Luis Anderson 
 
 Antonio Sanchez de Bustamante 
 
 Joaquin D. Casasus 1 
 
 Permanent Committee for the Study of Questions 
 Relating to Neutrality 
 
 The Executive Council 
 
 Charter Members 
 
 Argentine Republic: Luis M. Drago 
 
 Bolivia: Alberto Gutierrez 
 
 Brasil: Ruy Barbosa 
 
 Chile: Alejandro Alvarez 
 
 Colombia: Antonio Jose Uribe 
 
 Costa Rica: Luis Anderson 
 
 Cuba: Antonio Sanchez de Bustamante 
 
 Dominican Republic: Andres J. Montolio 
 
 Ecuador: Rafael Arizaga 
 
 Guatemala: Antonio Batres Jauregui 
 
 Haiti: J. N. Leger 
 
 Honduras: Alberto Membreno 
 
 Mexico: Joaquin D. Casasus (Deceased) 
 
 iDied February 25, 1916. 
 
122 AMERICAN INSTITUTE 
 
 Nicaragua: Salvador Castrillo 
 
 Panama: Federico Boyd 
 
 Paraguay: Manuel Gondra 
 
 Peru: Ramon Rireyro 
 
 Salvador: Rafael S. Lopez (deceased) 
 
 United States of America: James Brown Scott 
 
 Uruguay: Carlos M. de Pena 
 
 Venezuela: Jose Gil Fortoul 
 
 Titular Members 
 
 Argentine Republic 
 Eduardo Bidau 
 Carlos Octavio Bunge 
 Luis M. Drago 
 Joaquin V. Gonzalez 
 Eduardo Sarmiento Laspiur 
 
 Bolivia 
 
 Daniel Sanchez Bustamante 
 Alberto Gutierrez 
 Alberto Diez de Medina 
 Claudio Pinilla 
 Victor E. Sanjines 
 
 Brazil 
 Clovis Bevilaqua 
 Lauro Muller 
 Rodrigo Octavio 
 
 Manoel Cicero Perergino da Silva 
 Epitacio Pessoa 
 
 Chile 
 Alejandro Alvarez 
 Luis Barros Borgono 
 Antonio Huneeus 
 Eduardo Suarez Mujica 
 Eliodoro Yanes 
 
OF INTERNATIONAL LAW 123 
 
 Colombia 
 
 Nicolas Esguerra 
 
 Antonio Jose Uribe 
 
 Francisco Jose Urrutia 
 
 Adolfo Urueta 
 
 Jose Maria Gonzalez Valencia 
 
 Costa Rica 
 Luis Anderson 
 Ricardo Gimenes 
 Leonidas Pacheco 
 Manuel Castro Quesada 
 C. Gonzalez Viques 
 
 Cuba 
 
 Antonio Sanchez de Bustamante 
 
 Pablo Desvernine 
 
 Octavio Giberga 
 
 Fernando Sanchez de Fuentes 
 
 Rafael Montoro 
 
 Dominican Republic 
 
 Federico Henriques Carvajal 
 Manuel J. Troncoso de la Concha 
 Manuel Arturo Machado 
 Andres J. Montolio 
 Adolfo Alejandro Nouel 
 
 Ecuador 
 
 Rafael Maria Arizaga 
 Alejandro Cardenas 
 Gonzalo S. Cordova 
 Victor Manuel Penaherrera 
 Jose Luis Tamayo 
 
 Guatemala 
 Mariano Cruz 
 Antonio Batres JAuregui 
 Jose Matos 
 Alberto Mencos 
 Carlos Salazar 
 
124 
 
 AMERICAN INSTITUTE 
 
 Haiti 
 
 Louis Borno 
 Edmond Heraux 
 Pierre Hudicourt 
 Jacques N. Leger 
 Solon Menos 
 
 Fausto Davila 
 Alberto Membreno 
 Alberto Ucles 
 rlcardo de j. urrutia 
 Mariano VAsquez 
 
 Honduras 
 
 Mexico 
 
 Francisco L. de la Barra 
 Manuel Calero 
 Joaquin D. Casasus 1 
 Victor Manuel Castillo 
 Pedro Lascurain 
 
 Nicaragua 
 
 Modesto Barrios 
 Alejandro Cesar 
 Pedro Gonzalez 
 Carlos Cuadra Pasos 
 Maximo H. Zepeda 
 
 Ricardo J. Alfaro 
 Harmodio Arias 
 Eusebio A. Morales 
 Belisario Porras 
 Ramon M. Valdes 
 
 Eusebio Ayala 
 Cecilio Baez 
 Manuel Gondra 
 Antolin Irala 
 Fulgencio R. Moreno 
 
 Panama 
 
 Paraguay 
 
 *Died February 25, 1916. 
 
Isaac Alzamora 
 Victor M. Maurtua 
 Solon Polo 
 Ramon Ribeyro 
 Manuel V. VillarAn 
 
 of international law 125 
 
 Peru 
 
 Salvador 
 
 Salvador Gallegos 
 Alonso Reyes Guerra 
 Victor Jerez 
 Manuel I. Morales 
 Francisco Martinez Suarez 
 
 United States of America 
 
 Robert Bacon 
 Robert Lansing 
 Elihu Root 
 Leo S. Rowe 
 James Brown Scott 
 
 Uruguay 
 
 Daniel Garcia Acevedo 
 Manuel Arbelaiz 
 Juan Antonio Buero 
 Adolfo Berro Garcia 
 Juan Zorilla de San Martin 
 
 Venezuela 
 Simon Barcelo 
 Arminio Borjas 
 Jesus Rojas Fernandez 
 Jose Gil Fortoul 
 F. Arroyo Parejo