Judges In Our Own Cause


By FELIX MORLEY, President, Haverford College, Haverford, Pa.

Delivered before American Society of International Law, Washington, D. C., April 29, 1944

Vital Speeches of the Day, Vol. X, pp. 499-502.

ONLY one accomplishment, it has been said by Aeschylus, is beyond both the power and the mercy of the gods. They cannot make the past as though it had never been.

In spite of its simplicity, and its unquestionable truth, that is not an easily acceptable thought. Few of us like to believe that all our actions—the unworthy as well as the admirable—count in determining the composite of our personality. We would prefer to be judged only by our more excellent moments, with shortcomings regarded as "off the record". And it is undeniable that, temporarily at least, a good many individuals are able, by reason of position, or personality, or ability, to build up the basis of a highly selective epitaph. In the vernacular we "get away with it", perhaps as a college president, perhaps even in more exalted occupations.

The difference between the individual and the institution, whether the latter is concerned with private or with public business, is that the corporate body can never escape its past as the unscrupulous person may do under the benevolent doctrine of de mortuis.

During the four years that I have had responsibility for the affairs of a small college I have come to realize first how greatly its current operation is conditioned by the traditions, customs, and habits of earlier years, second how definitely the operation of the future is being molded by the practices of today. No institution can successfully lead a double life,

playing Jekyll by day and Hyde by night. Beyond that, however, no existing institution can in the present separate itself wholly from the past, and none that continues to survive will in the future separate itself completely from what is now the present. It follows that if you carry responsibility you cannot afford to believe that humanity will one day awake from what every intelligent man must regard as a nightmare and find itself standing in the rosy light of an achieved Utopia.

Institutional continuity is today strongest in the case of the State, if for no other reason because the predominance of the State now menaces the continuity of all other human institutions. There have been—there may be again—long periods in which this was not true. At different places, in different times, the family, the clan, the church, the estate, the cartel, the labor union—have all temporarily dominated the political scene. Society, in one or more of its phases, has historically been far more powerful than the State. But the outstanding characteristic of our time is the subjection of society, and of the individuals who compose society, by the State. Over a century ago Hegel attempted to rationalize this development and much as I hate to concede the point I am afraid it is today increasingly difficult to deny the universality of the totalitarian trend. That, says the optimist, is for us only a temporary war-time phenomenon. I doubt it. Not even the gods—let alone a Republican President—can make the past as though it had never been.

If there is a dominant trend now shaping the future of national development that process will certainly control the evolution of international law. In stating this truism let me hasten to deny any claim to proficiency in the field of your specialization. International relations, and consequently the procedures which govern them, have always interested me. But every newspaperman and every college president is ex officio a dabbler. And when the professions are combined, dabbling is doubled and vulnerability thereby increased.

Nevertheless, every American should be interested, even in war-time, and perhaps particularly in war-time, in the effect of events on the structure and spirit of his government.

This structure, with its careful allocation and reservation of power as between State and Federal authorities; with its delicate coordination of power among Legislative, Executive and Judicial authorities in each of the forty-nine united governments, is one of the most ingenious systems, and one of the most difficult systems to operate successfully, that the world has ever seen. The balance provided by our Constitution cannot, as in Russia, be ostensibly altered overnight by the perfunctory action of a supreme Soviet. Our balance of power cannot, as in Great Britain, be temporarily locked or frozen in order to maintain a government in office for the duration of a national emergency. More than that of any other nation our government has been made independent of that arbitrary action to which mankind is prone. From this design arises not merely its legalism and its conservatism but also an obvious structural weakness to which the possession of vast material power should never blind us. There is much contemporary significance to Dicey's warning, expressed in "The Law of the Constitution" sixty years ago, that "A federation will always be at a disadvantage in a contest with unitarian States of equal resources."

No government, however, can permit itself to be at a disadvantage when engaged in a struggle of life and death proportions. It will, if necessary, subordinate all considerations of form and structure and policy to those of power. And if the emphasis on power is continued long enough the consequent structural changes will be permanent, not less so because we may dislike to admit that they have been made. We should have the intellectual honesty to confront this fact and we should have the patriotism to consider its implications for our country.

I confess to being worried by the prevalent failure to analyse, in any realistic fashion, the profound changes which the war is bringing to our political philosophy. Every so often our complacency in this matter receives a jolt, as when some slapdash general tells us that it is our destiny to rule the world, with partners as to whose identity there seems to be some confusion. But such outbursts by an ebullient militarist are not really as significant as the shift in official thinking which gives them a certain plausibility.

Three weeks ago the Secretary of State made a radio address which must have been of extraordinary interest to everyone in this gathering. For Mr. Hull's observations on the subject of neutrality, in that speech, constituted one of the most important policy pronouncements ever made by a responsible American statesman. Yet, so far as my observation goes, this part of his remarks has aroused little or no comment. Because they illustrate a changing American philosophy I shall quote the relevant paragraphs:

"This growth of our strength entails consequences in our foreign policy. Let us look first at our relations with the neutral nations.

"In the two years following Pearl Harbor, while we were mustering our strength and helping to restore that of our Allies, our relations with these neutral nations and their attitudes toward our enemies were conditioned by the position in which we found ourselves. We have constantly sought to keep before them what they, of course, know—that upon our victory hangs their very existence and freedom as independent nations. We have sought in every way to reduce the aid which their trade with the enemy gives him and to increase the strength which we might draw from them. But our power was limited. They and we have continually been forced to accept compromises which we certainly would not have chosen.

"That period, I believe, is rapidly drawing to a close. It Is clear to all that our strength and that of our Allies now makes only one outcome of this war possible. That strength now makes it clear that we are not asking these neutral Rations to expose themselves to certain destruction when we ask them not to prolong the war, with its consequences of suffering and death by sending aid to the enemy.

"We can no longer acquiesce in these nations' drawing upon the resources of the allied world when they at the same time contribute to the death of troops whose sacrifice contributes to their salvation as well as ours. We have scrupulously respected the sovereignty of these nations; and we have not coerced, nor shall we coerce, any nation to join us in the fight. We have said to these countries that it is-no longer necessary for them to purchase protection against aggression by furnishing aid to our enemy—whether it is by permitting official German agents to carry on their activities of espionage against the Allies within neutral borders, or by sending to Germany the essential ingredients of the steel which kills our soldiers, or by permitting highly skilled workers and factories to supply products which can no longer issue from the smoking ruins of German factories. We ask them only, but with, insistence, to cease aiding our enemy."

Those remarks deserve close consideration not merely—and not primarily—because of their war-time implications, but rather as revealing a notable development of thought on the whole subject of national sovereignty. "We have," says the Secretary of State, "scrupulously respected the sovereignty of these (neutral) nations." Nevertheless, we ask them, "with insistence" to cease aiding our enemy. Such a request is not compatible with any traditional interpretation of the doctrine of sovereignty.

There has been increasing doubt, as a result of the experiences of 1812, of 1917, and of 1941, of the ability of the United States to maintain its own neutrality in any protracted war between major belligerents. Most of us, I suppose, are now dubious of the validity of Jefferson's assertion that: "War between two nations cannot diminish the rights of the rest of the world remaining at peace". But heretofore I do not believe we have ever officially questioned the validity of the doctrine of neutrality as such. The right of an independent nation to declare and practice this policy has been regarded as an inherent and integral part of its sovereign status.

Until recently that was certainly the attitude of the present Administration. As a case in point—and others could be cited—let us recall our action when Italy invaded Ethiopia, a shameless aggression for which the miserable Italian people are now paying in compound interest.

Immediately following the outbreak of this war, on October 5, 1935, President Roosevelt, acting under the then existing neutrality legislation, issued two proclamations, countersigned by Mr. Hull as Secretary of State. One of these proclamations admonished "all citizens of the United States to abstain from travelling on any vessel of ion similarly warned Americans not to export, either to Ethiopia or to Italy, any "armored trains", "tanks", "aircraft", "aircraft carriers", "submarines", "flame throwers", "ethyldichlorasine", "methyldichlorasine" or other specified "implements of war".

Under these proclamations, however, Americans could with complete legality continue to ship to Italy such unspecified implements of war as aviation gasoline, or chrome, or ball bearings, even though it was impossible to send the equivalent, of course, to the helpless victims of Italian aggression. And if Sweden, or Ireland, or Argentina or Turkey had in 1935 denounced us for an essentially fictitious neutrality the administration could, and very probably would, have replied that it was acting under a domestic law which was not the concern of other governments. It appears that Sweden has now made substantially that very retort.

I do not mean to imply that there is necessarily the slightest impropriety in the pressure we are now bringing on various neutral nations, even if, for the sake of clarifying our reasoning we ignore the compulsion of that necessity which all too accurately is said to know no law. Hugo Grotius, who must be regarded as the patron saint of this assemblage—at least until the time comes for canonizing Manley Hudson—long ago laid down the principle tacitly invoked by Secretary Hull in his speech of Easter Sunday. Said Grotius: "It is the duty of those who stand apart from a war to do nothing which may strengthen the side whose cause is unjust or which may hinder the movements of him who is carrying on a just war . . .

The recognized deficiency of the Grotius declaration, of course, has been the absence of any impartial judicial agency authorized to identify the cause of justice with that of a particular belligerent. And until mankind establishes such an agency there will be danger as well as promise in the pressuring of a neutral nation by a belligerent. That danger is not lessened by the frank admission that as our physical power grows so does our willingness to utilize it to gain our ends. If we can use that power to deny to weaker nations the established right of neutrality we can, with little extension of the argument, deny these others the right of determining their immigration, or tariff, or even their fiscal polices. For any or all of these might operate to favor one belligerent at the expense of another.

The acid test, in such a policy as that announced by Secretary Hull on April 9, is whether or not we regard it as unilateral, whether or not—if the situation were reversed—we would be willing to have the same reasoning applied to us. We must hope that, under whatever post-war authority is established, we shall accept the same measure of restraint that we deem it appropriate to apply. For otherwise it will be difficult to establish a retrospective legality for our demand that others should abandon a right which we have heretofore regarded as inalienable for ourselves.

I have touched upon certain implications in Mr. Hull's recent speech because they seem to me an illustration, though by no means the only one, of the growth of an American attitude which could be antagonistic to the orderly development of international law. Such development, says the admirable introduction to that study of "Postulates, Principles and Proposals", with which you are all familiar, "has been retarded both by the lack of international organization and by the insistence of States upon a freedom to use force to accomplish their ends". In rectifying our share of the first mistake we must be careful that we do not increase the overwhelming contribution to the second error. We are a volatile people, prone to shift rapidly in our thinking. So it is by no means exaggerated to suggest that the slogan "America First" might, by 1945, come to possess a connotation very different from that which it had in 1940.

An assertive American imperialism, however, seems to me less likely because it would be so sharply at variance with our system of government and because that system, unlike those of more centralized governments, could scarcely be remodeled for the successful conduct of power politics. Faced with a choice between imperial rule and the preservation of our delicately balanced democracy I like to believe—and certainly I hope—that we shall forego the former and maintain the latter. Under our system we can bring aid and comfort, but not dominion, to stricken peoples. I think that in the former role, rather than in the latter, lies our true destiny.

The historic virtue of America is not inherent in our vast material strength. That strength, indeed, may come to endanger our real contribution to civilization, which has always been to give freedom to citizens, never to exact obedience from subjects. And yet the glory that was Greece can easily pass over into the far more ephemeral grandeur that was Rome. Having opened my remarks with a quotation from Aeschylus may I, in this scholarly gathering, conclude with a not altogether inapposite reference to Thucydides?

As a neighbor of Lacadaemonia, having close relations with Sparta, the people of Melos, you will remember, sought stubbornly to preserve their neutrality during the universally disastrous Peloponnesian War. But by the sixteenth year of that war the Athenians had become hard-boiled. As the struggle dragged on their reliance on force, paradoxically but not unnaturally, became steadily more pronounced. And this moral deterioration is clearly brought out in Thucydides' thought-provoking account of the negotiations between the Athenian and Melian envoys. Of course this is all very ancient history, for it happened exactly 2,360 years ago.

Nevertheless the story has journalistic pertinence, as when the Melians, noting the huge military preparations of Athens, said to them: "We sec you are come to be judges in your own cause". To which the Athenians replied, in blandishment not very dissimilar to that of modern statesmanship:

"You will not think it dishonorable to submit to the greatest city in Hellas, when it makes you the moderate offer of becoming its tributary ally, without ceasing to enjoy the country that belongs to you." Like other small States, in later World Wars, the Melians

nevertheless chose to defend their neutrality, and as a result were overwhelmed. Confident that this was the Athenian Century the victors forthwith decided upon the invasion of Sicily, that disastrous expedition which marked the beginning of the end for Athens. Never, after the dictation to Melos, could it be asserted, as Pericles had earlier said with honest pride, that "Athens alone of her contemporaries is found when tested to be greater than her reputation".

Climax approaches in our own struggle against the evil doctrine that justice and power are synonymous. It becomes the more imperative that history shall never record us among those who insist on being judges in their own cause.