Page:The Green Bag (1889–1914), Volume 21.pdf/528

 Covenants Without the Sword Cephas Brainerd,11 the petition of the New York State Bar Association in 1896, 12 followed by the eloquent appeal of Russell of Kiloween the same year before the American Bar Association, the resolutions of the National Arbitration and Peace Congress at New York in April, 1907,13 the resolutions of the Lake Mohonk Conference at its sessions of 1907 and 1909; and since the last Hague Conference there has been no end of pastoral, conventional, and edi torial propaganda. . But the striking part of all this effort for such a Court is its Anglo-American origin. The only project prior to the Hague Conference in 1907 that has not emanated from England or America is the resolution adopted by the Inter parliamentary Conference at Brussels, in 1895, 14 and this really had an Eng lish origin, just as the Hague proposition had an American origin.

497

Having given this cursory history of the movement, let us now consider (1) the proposal itself. What are its in herent virtues and defects? How far may we expect it to accomplish the great purposes for which it is designed? For if it cannot accomplish measurably these purposes—if it will not bear the, strain of a real conflict, say, for example, between England and Germany, will it not set back the cause of peace and undermine international law instead of strengthening it? Would not its failure destroy all respect for a system whose strongest partisans admit that it rests upon no support more substantial than the moral sentiment of nations and on international public opinion, whatever that may be. And (2) let us consider the reasons that impel English and Americans to advocate such a Court so persistently—in other words, its rela tions to Anglo-American juristic thought. II

"Covenants, without the sword, are but words, and of no strength to secure a man at all."1* • "Unfortunately for the welfare of the world, men are not so consti tuted that to know the right is to do it. Each man tends ever to do what is right in his own eyes, instead of that which is right in the eyes of mankind at large, preferring the relatively to the absolutely good. If, therefore, we would maintain the right, it is necessary to add com pulsion to instruction. It is not enough to point out the way; it is needful to compel men to walk therein."™ "A legal proposition without legal compulsion behind it is a contra diction in itself; a fire that burns not, a light that shines not.""

In a sense, this would be a court not only without a sword behind it, but without even any law to administer. It would have largely to create its own "Ibid., 124. "Ibid., 138. •Mm. Jour. Int. Law, vols. I, II and III. See also Sir Thomas Barclay's book (1907); papers by Clarke, Ralston, Scott, el at. (Am. Jour. Int. Law, vols. I, II and III). "Darby. 132.

law. And in saying this I do not mean to adopt the Austinian conception of law, nor to be drawn into any discussion of the several schools of international law, who still argue over their doctrinal differences as earnestly, if not as bitterly, as the early Schoolmen. "Hobbes (Molesworth ed.), vol. 3, p. 154. "Salmond, First Principles of Jurisprudence, 17-18. "Ihering, Zweck im Recht, I, 322 (3d ed.).