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New Willard Hotel,

Saturday, April 26, 1913, 7:30 o'clock p.m.

Mr. FREDERIC R. COUDERT, Toastmaster. Gentlemen, you may have noted that since our last banquet the toastmaster has been armed. Why I do not know, because, if I remember correctly, there was no attempt last year to attack him. He was very much encouraged thereby, yet possibly, owing to the ebullition of vivacity that the delightful subjects that we have had to discuss have given rise to recently, he has been furnished with this weapon.

I am very sorry to see, and I know in saying it that I express the feeling of everybody here, that our honored president, Senator Root, cannot, owing to a domestic bereavement, be present this evening. We all know what he has done for our Society, how devotedly he has worked for it, and how much it means to him.

For some reason of an anti-climatic nature, the precise explanation of which can only exist in the brain of one man, the Secretary asked me if I would act in his place tonight. Possibly he wished, in friendly rivalry, to show how much better he was than I, for his silence is always golden and my speech is not silver.

Gentlemen, we are here to assess and take account of stock, as it were. We have been performing most important functions. I incline to the belief that, with the exception of very few of us, we are entirely too modest, that we do not realize that we have been settling, at great expense of nerve power and energy to ourselves, the serious questions that are agitating the country, and that, by reason of our cogitations, deliberations and exchange of views, Congress, or the American people at least, will soon enter on a plan very fairly marked out, and the statesmen who are trying to govern us, will find, as soon as they are able to peruse the pamphlet that will be published next week, that they have full, adequate and excellent authority for any course of action that they may choose to take in regard to any question that arises.

Somebody has said that there are more lawyers in the United States and less law than anywhere else. I am inclined to think that there may be some truth in that. Now, I come from a very excellent town, quite inimitable in all respects. It is the reverse of a cemetery, because everybody in it wants to stay in it, and all the people who are outside want to come in. Nevertheless, we suffer from a plethora of

laws, and we have developed, perhaps by reason of the fact that we have so many laws-we are not lawless; we have too many lawswe have developed a system that unkind people characterize by hard names. In the days of the Stuart kings, it was characterized as "the dispensing power," but when certain high chiefs of our police and general security system find that laws are too numerous, too complex, too much misunderstood by the mass of people, instead of resorting to harsh measures and to violence, they exercise that power which the Stuart kings exercised with so much gratification to themselves, for a short time. We do not characterize it in exactly the same way, but, perhaps, philosophically it is very much the same thing. It is due in part, perhaps, to the fact that law and actual conditions do not harmonize, and, when they do not, so much the worse for the law.

I believe it was Lord Acton, speaking of a certain cynical writer in the Middle Ages, quoted him as saying that "the Lord did not desire the death of a sinner, but rather that he should pay and be saved." And so it is in international law. The value of international law as a substitute for might is that the international lawyer and the international type of mind, do not desire the death or destruction of any nation, but merely that it shall pay and be saved. We have had a good deal to say about construction, construction of statutes and construction of treaties. It was, indeed, very interesting.

I confess I was not wholly surprised to know that the word "all" sometimes meant "some." That did not seem surprising to me. I once spent a good many weeks in a neighboring high tribunal trying to find out what the words "United States" meant. I was not able to find out; I have not yet been able to find out very definitely. Perhaps there is a certain philosophic reason back of these difficulties of construction. Perhaps they could be instanced by a horse trade, of which I was the unwilling victim. The illustration is perhaps homely, but we are all more or less fond of horseflesh, and seeing a very fine looking horse, and hearing the encomiums pronounced upon him by his owner, I resolved to purchase him, and after having purchased him I found he was utterly worthless in the hunting field, and when I reproached the former owner, I said, "You told me that he was very fine." He said, "Sir, I did, and I believed he was very fine, and he is very fine looking, but the trouble is that while I was thinking of appearance, you were thinking of performance."

Now I understand from some of the diplomats here present that there is a rough and ready explanation. I understand that when

treaties are made by diplomats, each diplomat thinks that the other diplomat does not understand what he wants, and that, therefore, if the construction is elastic, if they have such a vague, philosophic word as "all" or "some," it then may be possible to construe its meaning as something different from what the untutored intellect naturally assumes. That may indeed be a practical reason, but I doubt if that goes to the root of things. I think the reason is deeper than that. In my own town, where we think less of the practical things than you do, where we have less hunting of all kinds, including offices, and more of the higher realms of disinterested philosophy and altruism, we had a visit some time ago from a very noted philosopher from France, I think I may say the leading philosophic mind, Mr. Bergson, and since Socrates taught in ancient Attica, I doubt whether so fine an audience ever presented itself to hear so delightful a gentleman. In fact, the town turned out in great force, and we learned from him some very interesting things. We learned from him that if we really wanted to know about things, we must stop reasoning about them, that reason and logic would always bring us into mental chaos, and that the truth was ascertained by a much more summary method, namely, the method of intuition. I do not assume that, even with his encyclopedic knowledge, he had gathered all of his philosophic ideas from the reports of the Supreme Court of the United States, but from some of the dissenting opinions I have found therein, I believe he would derive very great comfort, because if I remember one of them, the statement is made that legal judgments are predicated upon some infinitely subtler thing than anything that could be founded on a syllogism. Therefore, when I heard these learned gentlemen differing about matters that the ordinary man in the street would not have sufficient intellect to have two minds about, I thought perhaps there might be some deep underlying reason for it, and I turned to my satchel, where I always keep some philosophic consolation, especially when I am at meetings of this kind, and found a copy of Mr. Bergson's introduction to metaphysics; there I found what I think is the explanation of the psychologic state of mind of which we have been witnesses during the past day or two, and I will read it to you, because it seems to me so absolutely to the point. It has removed all my doubts and all my troubles, and it goes to the real basis of international law, and the reasoning that is predicated upon it.

Mr. Bergson says:

"It would follow from this that the absolute truth [which, of course,

all of us are seeking] could only be given in an intuition, whilst everything else [he means everything else than truth] falls within the province of analysis. By intuition is meant the kind of intellectual sympathy by which one places oneself within an object [that is to say, a treaty], in order to coincide with what is unique in it, and consequently inexpressible."

Gentlemen, this seemed to me to be the explanation.

If we want the truth about these matters, the truth we must not attempt to express, because the moment we attempt to express it, we cease to grasp it intuitively, and we lose it. Therefore, if we were true philosophers, I suppose we would do well to merely announce our intuitive conclusions. They would almost certainly be right, and having done so, we might, perhaps, not volunteer to request directly, but we might request, we will say, the highest law officer of the government to carry our philosophic conclusion to an interpreting tribunal and to explain to them that when they were dealing with these important matters of treaty and international law, it might be well, in the words of the French Revolutionary Committee, la mort sans phrases, to announce conclusions without those misleading formula which Mr. Bergson says never lead to anything save confusion.

I recently had a personal experience, for which I would apologize for speaking of were I not in an audience of lawyers, and lawyers always speak of their own experiences and are very little interested in those of others, perhaps because their own experiences are those with which they are the more familiar. I was again reminded of Mr. Bergson in the trial of a case in connection with a treaty, where the question had been decided in a certain way in the Supreme Court of Massachusetts. That court, in a very short opinion, said that the treaty meant what the English language would convey to the ordinary mind, and that it actually created something that had not existed before the treaty was put into force. In other words, they actually put themselves upon record-put themselves on record-on the proposition that the diplomatic minds who made that treaty actually intended to accomplish a result! Now, that seems very startling. At the same time, in the State of New York the lower courts, at least, followed that result, and generally throughout the country it was acquiesced in; but another case came up from the illustrious State of California, and the jurists in that eminent jurisdiction, possibly because of the greater familiarity with the psychologic work of the diplomatic mind, said these gentlemen who made the treaty meant nothing at all; they were

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