Politics

This method of managing international controversies has one great merit. It is founded on the very ancient and simple theory of international obligation, — that the natural attitude of nations to one another is one of hostility, and that the main duty of each government is to get the better of every other for the benefit of its citizens. Nations to-day stand to one another in the same relations which in other times were occupied by the feudal chiefs in certain parts of Europe. We talk now of civilization, and make a profession of the “ enthusiasm of humanity,” of which the feudal chief never heard; but these exalted principles we keep for the benefit of individuals, not governments. They are as inconvenient to us in the domain of politics as he found them in private life. The harmony of international interests is to us to-day very much such a phrase as the music of the spheres would have been to him. A profound belief is expressed in the sanctity of international law, but this is very much the same sort of respect which the feudal chieftain professed for his sovereign, — a convenient cover for bravado, robbery, and murder. When we think of Russia and Poland, of Austria and Italy, of the Mexican invasion, of the conduct of England during our war, of Prussia’s invention of the doctrine of benevolent neutrality during the French war, or again of our own longcontinued collusion with the Fenians, our protectorate of San Domingo, or in smaller matters, the organized system of literary piracy which we still countenance, it is hard to deny that the prevalent theory of international obligation is the modern political equivalent of the simple code of private obligation under which the Bois-Gilberts and De Lacys of an earlier time practised with such success.

If the chieftains of feudal Europe had possessed legal advisers, they would undoubtedly have made the same use of them in their private quarrels that modern governments do in foreign affairs. Mutatis mutandis, they would have received very much the same instructions from their employers that government counsel now receive from theirs ; and history would have been even more confused than it is with accounts of murders which were not murders, but justifiable homicides, and arson which was not arson, but unavoidable accident, and burglaries which after all were not burglaries, but entries to foreclose.

The legal method of conducting an international controversy has been admirably illustrated by the English and American management of the Alabama case. First the method in question was employed by England. At the time of the escape of the Alabama, the English government immediately called in the crown lawyers. They were not called in, as subsequent events have amply proved, to make an impartial investigation of the case, but simply to make an argument about it. The real question was, not whether the escape of any particular vessel could have been legally prevented, but whether England was not openly and persistently violating by a systematic negligence her obligations as a neutral. This question the crown lawyers were not asked to discuss; they were instructed to inform the government whether the letter of a certain municipal law has been complied with. They replied that it had, and this reply was exhibited as a triumphant refutation of the charges. We know the result. We have lately been pursuing an exactly similar course with England. The Treaty of Washington was intended by both countries as a final settlement of all vexed questions. One of these questions was that of consequential damages. There is no doubt in any one’s mind who has followed the history of the Alabama claims with attention, that the treaty forever settled the question of consequential damages in favor of England. In the first place the claim was preposterous, and in the second place it was understood on all sides that it would not be pressed. The English commissioners so understood it. The American commissioners so understood it, the press acquiesced in it, and every one supposed that the dispute was at an end. Then our government took legal advice, and the result was the appearance of the American “ case.” The legal method has again proved a failure ; the treaty has broken down.

The question whether, on a legal construction of the treaty, the American case is a presentation of our complaint which falls within its terms, is a profoundly uninteresting one. It is maintained that it is a rule of the common law, that no verbal evidence shall be admitted to control or vary a written instrument, and that it is also a rule of the common law that words and phrases used in an instrument shall be taken in their common and accepted sense, and not in strained and novel meanings. So it is a rule, too, that the English law respects life, liberty, and dower, and that every man, until he is proved guilty, is entitled to the presumption of innocence. If we are going to make out a preposterous case which we ourselves do not expect to maintain, and privately say that we do not mean to maintain, one of the rules furnishes as good a defence of our conduct as another. Those whose interest in the Treaty of Washington is one of hermeneutics, may find it profitable to maintain a discussion upon the point whether the case is technically admissible under the treaty. But to those who take a political interest in the matter, such a discussion is useless and empty.

If civilization is to make any real progress in the direction of peace, this attorney’s method of managing great international controversies must be brought to an end. The present difficulty over the Treaty of Washington will no doubt be arranged in some way, because it is impossible to maintain for any great length of time a controversy about claims which have no real existence in the minds of either government. But it ought never to have arisen. It is time that we should admit to ourselves that the Alabama controversy has been mismanaged in America quite as badly as in England.

INTERNATIONAL controversies occupy only a small portion of the general field of politics ; but in America the legal way of looking at all political questions has been carried to a pitch of perfection unknown elsewhere. This has, no doubt, been mainly due to the fact that the interpreters of our Constitution are the courts of law, and that in the past many of our most important political questions have been legal ones also. The “constitutional question” has intruded itself at every step into politics. From the ratification of the Constitution, down to the abstruse discussion which raged shortly after the war, as to whether the Rebel States were in or out of the Union, the main line which has divided parties has been one of constitutional construction. This fact has made the legal profession in America the great preparatory school for politicians, and has made the legal method of discussing political questions a distinctive feature of American politics. All the great politicians of the last generation in this country were educated as lawyers. Public life was then considered not merely an honorable career, but was, in a certain measure, a pleasing duty for all those who manifested any forensic talent in their early years. To practise at the bar, to go to Congress, to rise through the successive stages of public life to a position of prominence, was the natural career of ambitious Americans forty years ago. The various legislative bodies throughout the country became crowded with lawyers. Lawyers made the laws, interpreted them, and executed them. America was the lawyer’s paradise.

The day of the constitutional lawyer’s glory is past. The Constitution of the United Sates, however dear it may be to the hearts of Americans, is not fresh in their memories ; the constitutional aspect of political questions is neither talked about nor thought about as it once was. The constitutional lawyer himself has disappeared. But the legal method still remains. The political class is still a legal class, but is composed of lawyers of a different order.

The political discussions of the last few years have afforded several signal illustrations of this fact. The controversy over the status of the Rebels at end of the war, to which we have just alluded, was even more than legal. The Rebel States were either in or out of the Union. That was a plain alternative. But if they were out, then they could not be reconstructed by Congress, because the Federal authority did not extend beyond the Union ; while if they were in, it was equally clear that they could not be reconstructed, because Congressional interference with States in the Union was unconstitutional. So in early Grecian times the point was much mooted how many grains of sand made a heap. It was clear that one grain of sand did not make a heap. Add another, and still there was no heap. Add a third, a fourth, a fifth, a sixth ; at some point you must have a heap. Where was the point ? The Greeks, however, did not introduce this kind of discussion into practical politics.

The discussion about paying the government bonds in currency was another singular instance of the keen legal scent of the American politician. There was no sort of question from the beginning that, whether one construction or another of the act of Congress was the correct one, the bonds must be paid in gold, or the credit of the government was ruined ; and on this ground it might have been expected that, as the whole matter was in the hands of Congress, there would have been no discussion about it at all, but if any doubt really arose in any one’s mind, it would have been at once settled by legislation. Nevertheless, no sooner was the legal quarry of a doubtful construction flushed by General Butler, than the whole thirty millions of us, newspapers and all, started in hot pursuit. What the consequences might be was of no importance ; the delightful exhilaration of the chase was enough for us. Meanwhile, the cold and practical world outside, not sympathizing in the least with our legal excitement, began to entertain serious doubts, not of the construction of the statute of 1862, but of the character of the people which could allow such a discussion to be carried on at all. The bonds fell in the market, and it at last became evident, even to the lego-political mind, that the dispute was an unprofitable one for the country. The discussion afforded an admirable instance of the manner in which political questions are habitually confounded with legal ones.

The history of civil-service reform affords another illustration. The opponents of reform have said so much about what they called the “constitutional difficulty,” that many persons really believed there was some such obstacle, and that the President’s hands were tied. The President’s continual professions of interest made it appear that he was only waiting for a thorough legal investigation of the constitutional principles involved, to remove the difficulties in the way of a thoroughgoing crusade against incompetence and corruption in office. And so for some time the constitutional difficulty was a subject of political speculation and regret. No one knew exactly what it was, but every one thought it must be of considerable importance. At last the matter was submitted to the Attorney-General, who returned an opinion to the President, and at last it appeared that there was no constitutional difficulty at all ; that there had been nothing at any time to prevent the adoption by the President of the system of competitive examinations ; and that, if he had had any real interest in the subject, he might have introduced the reform in his first year of office just as well as in his last.

That the legal mind is of great value in certain kinds of political work is undeniable. The familiarity of the trained lawyer with political machinery, the conservative and clear character of his mind, render him at all times indispensably necessary to governments. But there can be as little doubt that the complete possession of the government of the country by lawyers, which lasted down to the time of the war, was a misfortune. The direction of the general policy of a country, lawyers are always sure to mismanage. The constitutional lawyer mismanaged it in his day; and, other considerations apart, the class of questions now before the country — questions of finance, taxation, foreign relations, administration — are the last questions to be left in the hands of the wire-pulling pettifogger who has succeeded him.

The present régime, however, cannot be a permanent one. Broken-down and disreputable lawyers cannot long maintain the distinction of a political high caste. And in various changes which are now taking place, — most of all in the great increase of the power of the newspaper, — we may see that the direction of politics is passing steadily and surely into new hands.