the subject, are completely within their international right and the real essence of the trouble can not be aided by a resort to a court. The dispute is non-justiciable.

We propose that for justiciable questions we shall have an impartial court to which all questions arising between members of the League shall be submitted. If the court finds the question justiciable, it shall decide it. If it does not, it shall refer it to a Commission of Conciliation to investigate, confer, hear argument and recommend a compromise.

We do not propose, in our plan, to enforce compliance either with the Court's judgment or the Conciliation Commission's recommendation. We feel that we ought not to attempt too much. We believe that the forced submission, the truce taken to investigate and the judicial decision, or the conciliatory compromise recommended, will form a material inducement to peace. It will cool the heat of passion and will give the men of peace in each nation time to still the jingoes.

The League of Peace will furnish a great opportunity for more definite formulation of the principles of international law. The arbitral court will amplify it and enrich it in their application of its general principles to particular cases. They will create a body of judge-made laws of the highest value.

Then the existence of the League will lead to ever recurring congresses of the League, which, acting in a quasilegislative capacity, may widen the scope of international law in a way that a court may not feel able or competent to do.

This is our plan. It is not complicated, at least in statement. In its practical application, difficulties now unforeseen may arise, but we believe it offers a working hypothesis upon which a successful arrangement can be made.

We are greeted first by the objection that no treaties can prevent war. We are not called upon to deny this in order to justify or vindicate our proposals as useful. We realize that nations are sometimes utterly immoral in breaking treaties and shamelessly bold in avowing their right to do so on the ground of necessity. But this is not always the case. We cannot give up treaties because sometimes they are broken any more than we can give up commercial contracts because men sometimes dishonor themselves by breaking them. We decline to assume that all nations are always dishonorable or that a solemn treaty obligation will not have some deterrent effect upon a nation which has plighted its faith, to prevent its breach. In every nation there are people who are in favor of peace and opposed to war, and when you furnish a treaty that binds the nation not to go to war, you strengthen the hands of the people in that nation that do not want to go to war and are in favor of preserving the honor of the nation. When we add to this the sanction of an agreement by a number of powerful nations to enforce the obligation of the recalcitrant and faithless member, we think we have a treaty that is much more than a "scrap of paper "and we base our faith in this on a common sense view of human nature.

We have got to depart from the traditional policy of this country, I agree. But this war has borne in on us the fact that we are so near to all the nations of the world to-day that we are vitally interested in keeping war down as far as we can, and that we had better step forward and assume certain obligations in the interest of the world and in the interest of mankind, because there is a utilitarian reason for it we are likely to be drawn in ourselves. Therefore we ought to depart from the policy of isolation that heretofore

has served us so well, because we are a strong nation. We must bear our share of the responsibilities of the moment, and we must help along the world, and incidentally help along ourselves, for I believe, even if you view it from a selfish standpoint, in the long run it will be a better policy.

It is objected that we only propose to include the more powerful nations. We'll gladly include them all. But we don't propose to have the constitution of our court complicated by a demand for equal representation of the many smaller nations. We believe that when we have a League initiated by the larger powers, the smaller powers will be glad to come in and enjoy the protection that the League will afford against the unjust aggression of the strong against the weak.

CONSTITUTIONALITY OF THE PROPOSALS 1

To me has been assigned the discussion of the constitutional objections to the proposals of the League to Enforce Peace. These objections, so far as I understand them, are directed against the first and third planks in our platform. The first plank reads as follows:

"First: All justiciable questions arising between the signatory powers, not settled by negotiation, shall, subject to the limitations of treaties, be submitted to a judicial tribunal for hearing and judgment, both upon the merits and upon any issues as to its jurisdiction of the question."

This looks to an organization of a permanent court by 1 Address delivered at the First Annual Assemblage of the League to Enforce Peace, Washington, D. C., May 26, 1916.

the signatories to the League. It contemplates the opportunity of any member of the League, having a cause of complaint against any other member of the League, to sue such member in this court and bring it into court by proper process. The complainant's pleading will, of course, state its cause of action. The defendant may wish to question the jurisdiction of the court on the ground, for instance, that the cause of action stated by the complainant does not involve a justiciable issue; that it can not be decided on principles of law or equity.

The court, upon this preliminary question, must decide upon its jurisdiction. If it finds the question not to be justiciable, it must dismiss the complaint; but it may properly refer its investigation to the Commission of Conciliation. If it finds that it is justiciable, it must require the defendant nation to answer.

What I have to discuss is whether the President and the Senate, constituting the treaty-making power for this Government, may consent, for and on behalf of the United States, to the settlement of any justiciable issue arising between the United States and any other member of the League by this permanent court; and whether it may leave to that court the power to decide whether the issue raised is a justiciable one. It was argued against a similar provision in the general arbitration treaties with England and France that such a stipulation constituted a delegation by the President and Senate of the authority reposed in them over the foreign relations of our Government and therefore that it was ultravires. Both upon reason and authority this objection is untenable. The United States is a nation, and, from a foreign standpoint, a sovereign nation, without limitation of its sovereignty It may, therefore, through its treaty

making power, consent to any agreement with other powers relating to subject matter that is usually considered and made the subject of treaties. The well-known language of Mr. Justice Field, in the case of Geofrey v. Riggs, 133 U. S. 258, leaves no doubt upon this point. It is as follows:

"That the treaty power of the United States extends to all proper subjects of negotiations between our Government and the Governments of other nations, is clear. . . . The treaty power, as expressed in the Constitution, is in terms unlimited, except by those restraints which are found in that instrument against the action of the Government, or of its Departments, and those arising from the nature of the Government itself, and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the Government, or in that of one of the States, or a cession of any portion of the territory of the latter without its consent. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country."

Issues that can be settled on principles of law and equity are proper subjects for decision by a judicial tribunal. Such issues have been settled by Boards of Arbitration, agreed to by independent sovereigns since there were governments. The first provision agreed to by the United States for an arbitration of this kind was in the Jay Treaty in 1794; and since that time there have been eighty-four international arbitrations to which an American nation was a party. In forty, or nearly one-half of these, the other party was an European Power, while the arbitrations between American nations were forty-four. To about two-thirds of all of these the United States was a party, the number of arbitrations between other American powers being fourteen. Of this