At that time the United States presented a plan for a permanent court to The Hague conference. That conference did not provide for a permanent court, as we all know, although arbitrations were provided for, and there was created what was called a permanent court of arbitration, but which, in fact, is not a court at all.

At the second peace conference at The Hague in 1907 the United States again urged the creation of a permanent court of international justice and Secretary Root issued to our delegation the following instructions:

It should be your effort to bring about in the second conference a development of The Hague tribunal into a permanent tribunal composed of judges who are judicial officers and nothing else, who are paid adequate salaries, who have no other occupation, and who would devote their entire time to the trial and decision of international causes by judicial methods and under a sense of judicial responsibility. The judges should be so selected from the different countries that the different systems of law and procedure and the principal languages shall be fairly represented. The court should be of such dignity, consideration, and rank that the best and ablest jurists will accept appointment to it and that the whole world will have absolute confidence in its judgments.

I invite a comparison of the statute which I shall discuss with these principles of a world court laid down by Secretary Root in 1907.

The second peace conference failed to provide such a court solely because the delegates could not agree upon the method of electing the judges.

The mere fact that the existing statute was recommended for adoption by the League of Nations should neither commend nor condemn it, but the court's statute should be examined and judged by what it is. I realize, Mr. President, that there are some who are so prejudiced against the League of Nations that they can conceive of no good possibly coming out of it. Mr. President, nearly nineteen hundred years ago the question was asked: "Can any good thing come out of Nazareth?" The reply was: "Come and see." So, whatever opinion may be entertained with reference to the League of Nations, we may well say, so far as this one recommendation

is concerned by it with regard to the permanent court, "Come and see."

While it is true that the statute in its present form was recommended by the league, it had no power to give life to the court, and it never could have come into being by its action. That required the separate action of the states who were members of the league; and the nations not members but named in the annex to the covenant of the league, of which the United States is one, had the privilege of joining it upon the same terms as members of the league. As Senators know, 48 nations have adhered to the protocol establishing the court; and it is their action, and theirs alone, that has vitalized it into exist

ence.

I therefore wish to briefly examine the organic act which establishes the court, and then consider the question of its independence, and especially whether it has any such relationship to the League of Nations as makes it dependent upon the league in the performance of its duties.

First, with regard to the judges:

Article 2 of the court statute reads:

The Permanent Court of International Justice shall be composed of a body of independent judges, elected regardless of their nationality from amongst persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices or are jurisconsults of recognized competence in international law.

I think it will be admitted that language could not be more comprehensive to secure an independent body of judges who in the performance of their duties bear allegiance to no country, but only to the law of truth and justice.

As a judge of the court an Englishman will violate the oath of office he takes if he permits his decisions to be influenced in favor of Great Britain by the fact that he is an Englishman. A great American, John Bassett Moore, is one of the judges, but no one who knows him would believe for a moment that his nationality would influence his decisions.

Upon that point we have in the decisions of the court itself one or two very striking illustrations of the independence of the judges. Take the Morocco case, to which I referred a moment ago. France was one of the contending parties. There is a national of France on the Permanent Court of International Justice; and yet that judge, that Frenchman, joined in the unanimous opinion of the court against France.

While it is true that the judges are elected by the Council and Assembly of the League of Nations, acting separately, this has nothing to do with their independence, any more than an honest judge would allow his decisions to be influenced by the fact that one of the parties in a suit before him had voted for him.

It should be remembered in this connection that the Council and Assembly of the League of Nations have not an unrestricted choice in election of judges, but they are nominated by the court of arbitration of The Hague, and the league can make no selection except from the persons so nominated. And may I say in passing that although we are not a member of the League of Nations, nor have we yet adhered to the World Court statute, we to-day have a right to participate in the nomination of these judges.

Finally, on this point, the 11 judges and 4 deputy judges elected are men of great ability as international lawyers, and each has received distinguished honors in his own country by reason of his learning and public service. If any question shall hereafter be raised regarding the standing, the ability of these judges, we shall be glad to discuss that question when it comes up.

Second. The power and duties of the court are defined by the statute creating the court, and none others can be exercised. There is a mistaken idea quite prevalent that the court is dependent not on the statute but on the covenant of the League of Nations for a part of its jurisdiction. In support of this contention it is said that the court statute makes no mention of advisory opinions and that it is the covenant of the league which confers such jurisdiction. The fact is that article 36 of the statute expressly provides that the jurisdiction of the court comprise all cases which the parties refer to it and all matters specially provided for in treaties and conventions in force.

The covenant of the league is such a treaty or convention; and as the request for advisory opinions is a matter that is specially provided for in it, therefore, under article 36 of the statute, the court has jurisdiction to render such opinions. But such jurisdiction is not confined to rendering advisory opinions to the League of Nations. If the United States and Great Britain should enter into a treaty and in it provide that either party might request an advisory opinion from the court as to the interpretation of any clause in the treaty, the court would without question have the same right to render an advisory opinion in that case as to the League of Nations.

We have a Pan American Union. Suppose we should provide by treaty between all of the States on the Western Hemisphere that with reference to some subject matter of that treaty the Pan American Union should have the right to request the World Court to render an advisory opinion. It would have the same right to do so that it now has to render an advisory opinion to the League of Nations.

The statute establishing the court is complete in itself and is the constitution of the court. It can no more exercise powers not conferred expressly or by implication by that instrument than our Congress can exercise powers not conferred upon it by the Constitution of the United States.

Third. The court is absolutely independent in the performance of its functions. I have already referred to the fact that the judges, as such, owe no allegiance to the country of which they are nationals; but it is said that the court is the agent and servant of the League of Nations. This assertion is based for the most part upon two facts:

1. That the council and assembly of the league elect the judges; and

2. That the salaries of the judges and other expenses of the court are paid through the league.

While this is a fact and I personally wish it might be otherwise, and I shall refer to that a little later-I contend that it in no way affects the independence of the court.

I think no one will contend that the Supreme Court of the United States is not absolutely independent of both the executive and legislative branches of our Government. Its judges are appointed by the President and confirmed by the Senate, and the Senate, sitting as a court of impeachment, has the right to remove them. Will anyone say that because of this fact the Supreme Court of the United States is subservient to or is the agent of the President and Senate? No one would dare so assert, because the recorded history of the court would confound him.

No justice of the Supreme Court can receive any compensation for his services except as it is appropriated by Congress. In other words, the Justices of our Supreme Court are as dependent upon Congress for their salaries as are the judges of the World Court upon the League of Nations for their salaries. Will anyone say that our Supreme Court is subservient to or is the agent of Congress because its Justices are dependent upon it for their salaries? The decisions of the court setting aside acts of Congress as unconstitutional are a complete answer. Indeed, Mr. President, it is worthy of note that most of the complaint of the Supreme Court of the United States is not that they are influenced in their decisions by the fact that they are appointed by the executive branch, that their salaries are appropriated by Congress, and that they are subservient to them. Most of the complaint against that court of late years has been that they are too independent; that they pay too little attention to the acts of Congress and too often find what we do to be invalid because contrary to the Constitution. So I contend that it can not be said that either the election of judges of the World Court or the payment of their salaries affects in any way the independence of the court.

I anticipate, Mr. President, that it may be said that inasmuch as they must be reëlected, their terms being for nine years, that will affect their independence; and yet, Mr. President, I anticipate that most of the Senators who may urge that view are in favor of the election of judges in the United States as against appointment by the Executive. In most of our States we do so elect them. In many of the States they are elected through party nomination. Is there any question about the independence of the courts of this country?