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makes it can unmake it at pleasure. Its keeping must always remain in the hands of the ruling nations; and it is binding just so far as there is power to enforce it.
NATIONAL RELATIONSHIP. Nations are becoming more closely connected as education and invention develop. The ocean cables, the wireless telegraph and the rapid steaming leviathans of the twentieth century bring the people of the world into daily contact and communication. We cannot, if we would, seclude ourselves in the desert nor in the mountain wilderness. We are drawn willingly or unwillingly into the world's struggles, commerce and warfares. This situation is not peculiar to the United States alone, but likewise affects all nations in the ruling class.
During this transition from the lower to the higher civilization our national rights, needs and duties are ever increasing. The Esquimau of the frozen North has but little need of railroads and ship canals. The planter on a small tropical isle may need ships and canals but not the railroad. Yet the active, hustling nations of the temperate zone engaged in all branches of the world's traffic and, often by necessity in its wars, needs and should have all privileges, rights and benefits in the seas and lands of the world that a wise and universal policy may demand.
In legal theory an independent nation owns not only its sovereignty but its territory; still, whatever it does own is subject to conquest in a just cause by a stronger power or a combination of powers. A nation, also in theory, controls its subjects; yet combined international power may control both the nation and its subjects. A magna charta, a constitution, or a state code is of no avail against an overpowering hostile army. Following the Norman conquest British land titles were divested; the landlord became vassal, sovereignty was overthrown and a new regime was erected upon the fearful wreck. Modern international law has revoked this Norman rule, and conquest now overthrows sovereignty only, and leaves the private land titles vested in the prior owner. In 1825 Chief Justice Marshall decided that the African slave trade was legal by the law of nations; but before the elapse of twentyfive years the powers of the world decreed this trade to be illegal and the slave dealer was driven from the high seas.
Theorists may not approve of this doctrine of forcible national action, but if in any given case universal policy approves the act, it passes into the realm of res adjudicata and becomes final. This is the court of last resort; there is no higher appeal so far as worldly power extends. Thus the world powers rule the world, and this becomes more emphatic day by day. The people of the world constitute these powers—and who shall reverse what the people have decided ?
All writers on international law lay down the rule that nations are equal in their sovereignty and that no one can (without consent) invade the domain of another. But these authors show, before reaching their closing pages, that there are numerous exceptions to the rule and that in many instances sovereignty may justly be invaded. These exceptions make the rule a limited one, and thus wholly destroy its universality. When the gate is opened to let in one exception it will be difficult to close it against a host of others following in the same line and with credentials fully as strong. By conceding that the sovereignty of a nation may in certain cases be
a invaded by another nation we do not admit the doctrine that "might makes right," because this adage is neither universally true nor universally false; for might makes
right when it is right, and only the right should prevail.
The deduction from these premises is that the property and sovereignty of a nation, if needed for a high international purpose, may be invaded, and, to that extent, may be appropriated under the doctrine of international eminent domain subject to the payment of a just compensation, if the right to compensation has not been forfeited. The cases in which this rule may be enforced are not enumerated in any tabulated list, but each case is determined by its own circumstances.
Are there precedents for the doctrine that an international way can be built through the domain of a nation without her consent? A perfect parallel may be difficult to find, but analogy is so close that it may be said that history furnishes ample precedent.
The Suez canal became a necessity and was made, perhaps, by agreement of the parties in interest; but if consent had been refused and the civilized powers had determined that the canal was needed the refusal of consent would not have prevented its construction. The straits of the Dardanelles and the Bosphorus lie wholly within the empire of Turkey, still they were compelled by the treaty of five nations to be kept open to the merchant shipping of the world. The rivers Danube, Scheldt and Rhine in Europe, and the St. Lawrence and the Yukon in North America, and the Amazon and the La Plata in South America furnish instances where the ocean end of the river belonged to one sovereignty, and the source end to another. Treaties (more or less voluntary) have made these rivers free to the world's commerce. If this had not been accomplished by express compact the shut-in nations would, by conquest or international eminent domain, have opened the way as soon as they had acquired sufficient international aid.
The Mississippi was at one time a source of trouble between the United States and Spain. Our country asserted her right to the free navigation of this river throughout its length. Spain, then owning Louisiana, denied our right. The later purchase of Louisiana by the United States from France settled the question for all future time.
Perhaps the strongest illustration of the right to traverse the domain of a foreign nation for general navigation purposes is the case of the Danish inland seas and passage. If Denmark could lawfully have prevented the invasion of these waters for the purpose of navigation a very important and extensive part of northeastern Europe would have been shut in from the Atlantic. This was the cause of much international dispute during the period from 1319 up to 1857. In the early stages Denmark was arbitrary; but as time passed and nations became more enlightened, and commerce spread over the world the great nations made a more positive demand for freer rights of transit, when, at last through great pressure a liberal grant was made which, though apparently voluntary, was more or less a matter of subdued compulsion.
How long would England and Morocco be permitted to close the straits of Gibraltar against general navigation? What would follow if Russia and the United States should interdict passage through Behring Straits ? Universal policy would administer the needed relief and open the channels to general traffic.
It may be said that these specified waterways can be kept open because they are natural existing channels; but that the making of a new passage through a nation is a different question. The proposed way
would be obstructed by the virgin soil.
The existing channels mentioned were obstructed by the prohibitory edict of the holding nation. To acquire the right of navigation in either case, the obstruction would need to be removed. It might in many cases be less difficult to cut a new canal than to force a passage through the waters of a strong and powerful nation against its consent. The governing principle in both of these cases being identical the legal right must of necessity be the same. The question to be decided in all such cases will be, is the desired channel or way an international necessity and do the world's powers demand it?
INTERNATIONAL EMINENT DOMAIN.
Can the right of eminent domain apply to an international right of way? Is there a right of international eminent domain? A state may take the property or franchise of a subject and apply the same to a higher and more beneficial use, on the theory that the needs of the nation demand it. The doctrine of eminent domain did not spring into being by force of any written law, but it is inherent in government itself, and is subject to the dictates of any supreme power whether national or international. If it is essential to the sovereignty of a single state, with much stronger reason is it essential to the world's higher sovereignty. Can it be that the needs of a single state are of a higher order and more imperative than those of the whole world of which it is but a part?
These questions then must be adjusted along legal and equitable lines. The binding power of law is in the penalty. The penalty is but a dead letter if there is no appointed power to execute it. It requires sovereign