Page:The Green Bag (1889–1914), Volume 21.pdf/532

 Covenants Without the Sword controversy. Obviously, this tribunal might have been called upon to decide momentous questions. In point of fact it was apparently called into existence for but three cases, and of these only one came to judgment; and obviously, also, it failed for want of any sanction of sword or sentiment to its possible decrees; "it could declare everything, but do nothing"; and yet this court, or if not the court, then the Confederation and court, met all the requirements of the learned proponents of an Inter national Supreme Court; and further more, this court was provided to judge among states speaking one language, inhabited by one race, having the same laws, ideals and traditions, and which had covenanted to form a perpetual union as one political community.22 (3) The constitutions of the Latin nations (France, South America, etc.), show how futile are mere covenants. Not only does the legislative department pay no attention to them, but the execu tive overrides as and when it pleases or dares. When the executive overrides law the constitution is vindicated not by quo warranto, but by revolution. Quo warranto has sanction—the consti tutional texts have none. (4) So, too, a valuable moral can surely be drawn from the French "Su preme Court" and Napoleon III. This Court had the power to protest—to pro nounce a decree that the executive was acting unlawfully. Yet it had no more effect on Napoleon's coup d'itat than the attempt of the Deputies to read the constitution to the soldiers:— "Throwing across their shoulders scarfs which marked them as Representatives of the People, the Deputies ranged themselves in front of the barricade, and one of them, Charles Baudin, held ready in his hand the book of the Constitution. When the column "Story Const., pars. 230-252 and pars. 257-58.

501

was within a few yards of the barricade it was halted. For some moments there was silence. Law and force had met. On the one side was the Code Democratique, which France had de clared to be perpetual; on the other a bat talion of the line. Charles Baudin, pointing to his book, began to show what he held to be the clear duty of the battalion; but the whole basis of his argument was an assump tion that the law ought to be obeyed; and it seems that the officer in command refused to concede. . . the major premise, for instead of accepting its necessary consequences he gave an impatient sign. Suddenly the mus kets of the front rank men came down, came up, came level, and in another instant their fire pelted straight into the group of the scarfed Deputies."*3 (5) But aside from any such historical instances as may be cited, it is a fact only too obvious to all of us, that even within the state the actually existing sanctions of law are not sufficient to prevent organized private violence in times of stress. If the fear of the bayonet cannot suppress organized dis order in our great strikes; if existing courts with an effective constabulary and the power to punish behind them, cannot prevent lynchings; if Ku Klux and White Caps and Night Riders are not deterred by the powerful sanctions of the organized state when excitement or a strong sense of social or individual injury seizes the people, isn't it too much to expect that sheer respect for a covenant will keep diverse peoples peace able in times of excitement? For it must always be remembered that it is only in times of excitement, akin to those which produce internal disorders, that modern states think of going to war. It is an error to suppose that the peoples of the world will take a vital interest in the enforcement of inter national law as such. The people of each state do not take such an interest in the enforcement of their own muni'Kinglake, Crimea, vol. I, chapter 14.