Supreme Court and all of the Federal courts are appointed by the President. The judges of the Court of Cassation in France owe their appointment to political authority. Our colleague, Lord Phillimore, whose judgment upon a judicial question would be without fear or favor as to any political authority, nevertheless derives his appointment from political power. Under every plan suggested, the judges come from a political authority.

I beg to suggest, for the consideration of my colleagues, whether possibly the election of judges by the concurrent vote of the Assembly and the Council might not point out, for our purpose, the same solution of this difficult question which already has been accomplished on the political side. That would have several advantages. The effect of the necessity of concurrent action by two bodies is that neither one can do anything which is oppressive in respect of the interests specially represented by the other. That is so in the making of all laws, and it is so when appointments are to be made by legislative bodies. The effect of the practical working would be that in the Assembly, where the smaller Powers are in majority, they would protect the interests of the smaller states, and in the Council, the larger Powers having a preponderance, would protect such practical interests of their greater trade and their greater production as would be submitted to the court. The practical effect would be that the selection would be made at the time of the meeting of the Assembly; that would be necessary, and the electors would be canvassed; one could discuss and consider individual names at that time.

The practical method of reconciling differences between two bodies is a committee of conference, a small committee of conference. In that committee all considerations of good faith, all justifiable doubt or apprehension of injury to interests, would be considered without the difficulty that comes from publicity. This selection of judges is an intensely practical thing, and care must be taken not to have it undertaken in such a way as to drive off and practically exclude all the best men. The best men in all countries will be unwilling to permit their names to be put before the world in a contest for something which perhaps they would have to make great sacrifice to accept. The best men, the men we want, are the men whom you have to urge to come in; these men will not be candidates. On the other hand, if you elect a man who seems to be the best, you must have some way of finding out whether he will serve. For example, the Council selected as a member of this committee a very old and valued friend of mine in the Argentine, M. Drago-a most admirable selection. M. Drago could not come. How many times, if you are going to elect a judge, will you not find that situation? Of the members of the committee, a majority are not the ones. originally named. Even for this service, to get the committee, a process had to be worked out for finding out who could leave his home and his occupation to come and render the service. This committee was constituted by an authority absolute. When Sir Eric Drummond wrote to a jurist inviting him to render this service, we all knew that the Council for which Sir Eric spoke had absolute authority to make the person receiving the letter a member of the committee. You cannot get that by the ordinary process of election. In an ordinary method of election, the candidate will not say that he will serve before he knows whether

it will be offered to him, and the election therefore has to take place before the electors know whether the candidate will serve, and the practical method of dealing with that is some such method as this conference committee between the two bodies.

I do not state this view as a conclusion, but as a method which has occurred to my mind as being perhaps nearer to the accomplishment of our object than anything else that has been suggested, the object being, in any arrangement we make, that both the divergent interests shall have a negative power to prevent injustice and an affirmative power to propose action and in dealing with practical questions. If these two powers exist, it should be worked out in some such practical way as that in which free self-government is carried on in every country where it exists.

That is all that occurs to me to say at present, except that I will preserve an open mind for the most respectful consideration of the suggestions of my colleagues on the committee.

Remarks of June 21, 1920

I beg to express my appreciation of the clear and satisfactory way in which the president has responded to the request which I made at the last session, in explaining the plan he has proposed, and I can assure the president that the plan will be studied and considered by me with the most sympathetic feeling and high appreciation of the elements of value of the proposition.

When I was called upon to speak at the last session, I was about to make some observations upon the general subject of the theory which underlies our whole procedure of the formation of the court, and to follow such observations by some other reference to the practical necessities imposed upon us by our assignment of duty here.

There are two fundamental principles laid down by the members of the committee, with which I think we all agree, and by which I think we are ready to have any suggestions we make decided. One is the proposition that the end of this court which we are about to recommend is justice. Unless that court succeeds in doing justice, it is worthless; we shall have failed in our efforts. The other proposition is the equality of sovereign states; to that we all agree; that we are bound to maintain, for it is the very basis, the sub-stratum, which underlies the law of nations. Without that, there is no law, and we return to the days of barbarism and unrestrained brute force.

In applying the first principle, we are seeking justice. The task is one of the adaptation of means to an end; it is that we may recommend that the proposed court be so constituted that, with the greatest certainty possible to human nature, it will do justice,-a practical adaptation of human means to secure a divine end.

In applying the other principle, that of the equality of sovereign states, it is necessary to consider the nature of the transaction on which we enter and to see whether the principle covers the transaction. The principle is limited definitely. The equality of states does not mean that they are equal in numbers,

in extent of territory, in wealth, in power; it means that they are equal in the sovereign right to control their own actions and to freedom from accountability to others. It relates to the rights of each state over its own territory, its own subjects or citizens. Every state is exercising these rights in agreeing or refusing to agree to any arrangements we propose. Monaco, Luxemburg, Haiti, San Domingo, have the same inalienable right to consent or refuse to consent as Great Britain or France. That is the exercise of equality. In brief, it is equality in the exercise of the rights of sovereignty.

When, however, we come to the creation of a court, we pass beyond the exercise of the rights of sovereignty. In constituting a court which is to render judgments limiting the rights of nations, we shall not be merely exercising the powers of sovereignty. What sovereign right has France to limit the sovereignty of Italy, of Great Britain? What sovereign right has Italy to name a judge to say if the power of France should be limited? Whence does this power come? From the sovereignty of Italy? It comes from consent; it has its origin in consent, not in the theory of sovereignty, not in the law of nations; it is purely conventional. The right of Italy to name a judge who can give decisions limiting the sovereign rights of France comes, not from the sovereignty of Italy, but from the consent of France.

As the function to be observed is a function not resting in sovereignty, but resting in consent, then, in determining whether the consent should be given mutually and upon what terms, we must consider not merely the theory of national equality, but the conditions and circumstances of the agreement which we are proposing to make. You have passed from the field of exclusive application of the theory of equality of nations. You have passed into a different field, in which, to determine what course should be followed, you must consider everything as relevant that is reasonable. You cannot say you wish to consider alone the doctrine of equality; you cannot say you must exclude from consideration all those circumstances from which one nation derives the greater interest in a subject-matter than another. All relevant facts must be considered.

For example, take the Convention for a Universal Postal Union. The nations which have made that agreement were equal undeniably, but is that equality treated as the sole test of the stipulations included in the agreement? No! There are, I think, seven classes, the nations being classified according to the benefits which they derive from their business, and also according to their resources for bearing the expense. Great Britain, Japan, Italy, France, the United States, Germany, Austria-Hungary, pay many times as much as the smaller states. That is an illustration of the way in which practical commonsense deals with the basis of agreement for a specific object between equals, and that has been carried into the basis of the League of Nations, the nations being obliged to bear the expense in the proportions of the Universal Postal Union.

The moment you depart from the basis of unanimous agreement, which in diplomatic conferences connotes the uncontrolled equality of states, and submit anything to the determination of a majority, you have left the field of sovereignty and subjected yourself to the application of other considerations than those of the equality of states.

What kind of agreement will it be reasonable for all our countries in the exercise of their equal sovereign rights to enter upon? It is to attain justice. But to agree merely to attain justice is to accomplish nothing; for all civilized nations are already agreed to do justice to each other. What we are to seek is a practical means of so limiting the weaknesses, the passions, of so enlightening the ignorance and awakening the understanding of men engaged in the affairs of nations, that there will be the highest possible probability of justice being done.

The object is to secure an institution which, by the application of just principles, will curb the exercise of power, and it is because that is an essential object to be attained that we find throughout the history of the effort to create such a court, a clear division of the smaller nations, on one side, and the larger on the other. The division which occurred in 1907, and which is here before us today, is the best proof that among the fundamental necessities of the case is the curbing of power. Whose power is to be curbed? Not the power of Haiti and of San Domingo, but the power of Great Britain, of France, of the United States. We are not called upon by the general voice of the civilized world to make an effort towards the establishing of a court to curb the power of Norway or Holland. The great Powers, with their immense armies and navies, in the presence of which the smaller nations of the world feel that their lives are in danger, unless justice prevails and a practical method of securing justice be agreed on, are to be curbed. This court will be a court to curb the power of these great nations, on the one hand, and to give protection to small nations on the other.

It follows that the nations are not similarly situated in respect of this project. The surrender of power to limitations imposed by a court is a surrender made chiefly by the great Powers. Small Powers surrender practically nothing, but they get protection, which the great Powers do not get. I repeat that the great Powers and the smaller Powers, who have been opposed since 1907, are not similarly situated in respect to this question. One is the group that is giving, another the group that is receiving, and you cannot solve a question of that description which affects different states in a different manner, in which the states have different kinds of interests, by the application of the theory of the equality of states. You must deal with it as a question to be considered upon the basis of the realities that are to be affected, and it is not reasonable to suppose that these great states will consent to have their power limited, to surrender their sovereignty to a tribunal the constitution of which is to be entirely within the control of the smaller states. The simple constitution of the court by a majority of equal states would place them in the hands of the smaller States, who give little and get much, and always they would have the power to over-ride the larger states, which give much and get little.

It is not wise always to think of states as if they were not composed of individual human beings. There is a particular distinction which divides the people of nearly every country. Every mind will revert readily to the differences between the military party and the peaceful party in a country in its relations with the other states. During the recent war, at times there was a

tendency towards peace, when the peaceful people of Germany wished to end the war; and then a movement the other way, and the military party secured the ascendancy again. In every country there are these parties, and they are always in conflict. What we must do is to present a reasonable proposal, to insure that the principles of peace and of justice may take the control in each country.

The principle of equality of states has, in recent years, met another principle. The growth of democracy in the world has been accompanied and produced by the growth of the conception of individual personal independence. Our recommendations in respect to the court will have to be submitted, not to the Foreign Offices; they will have to be submitted to those great democracies of hundreds of millions of people, knowing but little about international affairs, ill-informed, not accustomed to consider or to discuss or to act upon them,— and they control the Foreign Offices. The government must reach decisions which commend themselves to the great popular mind in our modern democratic governments. With these hundreds of millions of plain people, the theory of equal sovereignty is accepted, but it is a weak motive as compared with the idea that a man counts as much in his own country as in another. No theory of sovereignty or equality is going to get out of this man's head in France, in England, in the United States, that he is just as good and just as much entitled to his voice in the world as the man in another country. And you propose to each member of this multitudinous sovereignty, that his country shall surrender its sovereign rights of control to a tribunal made up in such a way that a man across the border weighs as much as one hundred men on the other side. See what result you get. The tendencies of intercourse and these efforts that are drawing countries nearer together, are leveling the differences and favoring individual manhood and the rights of a universal majority as against the extension of the application of equal sovereignty. The people of the United States number more than a hundred million, and if you ask the hundred million to consent to the sovereign rights of their country being limited in a court in which the one-half million in Honduras can outvote them, all the Foreign Offices in Christendom can never succeed in getting this recognized.

After all, there is that element of individual right and interest involved in all these international troubles; the greater part of the troubles are troubles where a country is championing the cause of its nationals. Remember that the question to be put to the public in these great countries is not a question of consent to the application of sovereignty; it is a question of creating power by consent, a power which is not founded in sovereignty, but a new power with a right to control the action of the several states.

I would not for a moment be thought to be pessimistic or critical in my judgment of the probable conduct of any country, which, under whatever agreement we make, finds itself engaged in the construction of a court; but I have to look facts in the face. There are backward nations, many quite shut up within themselves, some of them centuries behind in political development. Those nations which are the most backward are the nations which have the least interest in the court. But according to the simple method of constituting