THE LEAGUE OF NATIONS.

AN ADDRESS BY THE HONOURABLE WILLIAM H. TAFT, EX-PRESIDENT U.S.A.

Delivered at Annual Meeting Canadian Bar Association, at Ottawa, September 1st, 1920.

Mr. Chairman, Your Excellency, Lord Cave and the Political Hierarchy of Canada, together with that association of gentlemen whom I now have the honour of addressing, upon whom and upon whose advice and strength and force of character they all rely — the members of the Canadian Bar Association:

I thank you for this welcome. It is a pleasure to come here, in spite of the fact that Sir James Aikins has imposed on me the duty of speaking-something in which I have had very little practice. I am honoured by the presence of the representative of the Crown here, the Duke of Devonshire, whose kind hospitality I am enjoying. It has been a great pleasure to meet my fellow guests, the Privy Councillor Lord Cave and the American Ambassador-or at least the British Ambassador to America.

When I come here I cannot help feeling as if I was in at the birth of this Canadian Bar Association. I remember well, as doubtless many of you do, that great meeting of the American Bar Association at Montreal, and the very beautiful address of Lord Haldane, who was the guest of the Association on that occasion. I remember his discourse on Sittleichkeit and Gemuthleichkeit in 1913, which did not immediately appear as the controlling influence in the world within the year following. (Laughter.) But it was a beautiful address and it had a truth in it that must not be lost, and that was that the union of nations for the good of the world must depend upon their spirit of co-operation and their kindly feeling to one another, as the indispensable basis of any improvement in

C.L.T.-66

international matters and in the organization of any successful union of the forces of the world to preserve peace. I am glad to know that the Canadian Bar Association, which I hope I am not wrong in saying had the suggestion of its organization from that meeting, has attained the strength and usefulness which this meeting and the the previous meetings have

developed.

I am here, I am glad to say, as the representative of the American Bar Association to express to you our fraternal feeling and our congratulation upon your successful organization and life. Mr. Hampton Carson, the President of that Association, asked me to come; and your President was good enough to press me to come, with an incidental reference to "a word or two" which he said he would be glad to have from me. Having had some experience of that kind of invitation, however, I was not surprised to find that I was to be given a full afternoon for a formal address. I can only be thankful that it was not called an oration. Ordinarily in our country that is what it is called.

What can a man do, thus invited, responding to an obligation to come, seeking a vacation, without a secretary, when he is asked to make an address? Well, I turn always when I am in doubt as to what the professional duty of a lawyer is, to the professional ethics of the profession of clergyman; and when they are away on a vacation and called upon to discharge their professional functions, they turn the barrel up and they proceed to visit upon their temporary auditors sermons which are good because they have used them so often. (Laughter.) Therefore it is that in selecting the text for my remarks I am going to say something about what you may have heard of before, and what I certainly have heard of before. A text here should be legal; it should be something having the professional cast; and something of common interest. Now, I am sure the League of Nations has common interest; whether it has common agreement or not, it has com

mon interest for us all, and if I can limit my discussion to the legal aspects from the standpoint of one country, perhaps it is not inappropriate that I should extend my remarks along that line.

I was delighted with the ceremonies and the speeches this morning-His Excellency's address and that of your President, Sir James Aikins. I was delighted both because of the intrinsic merit of what was said, and also because misery loves company, to know that you too are not without your constitutional difficulties, that you too are constantly engaged, perhaps not so much as we, but nevertheless that you have questions as to your fundamental law and what it really means; and you have that advantage that we all have of making it mean, when you are construing it, what suits you. Now, we have in our country, I fancy, more discussion of constitutional questions than any other country in the world. When I say "constitutional questions" I do not mean the discussion. of such a thing as the British Constitution, which is unwritten and which is certainly not the construction of an exact document. But we began with a written constitution; we began with differences that were avoided by an instrument to which the different sides gave different constructions, and ever since the foundation of our government our politics have been largely, not altogether, but in a greater measure than in any other country, a discussion of what our fundamental law means. The question of the division of power between the States and the Central Government, the question of slavery, which was mentioned in the constitution, and which ultimately led to the Civil War, all tended to make every political issue savour something of constitutional construction. It is to that side of the League of Nations that I would like to invite your attention. I mean by that side the construction of the League of Nations from the standpoint of the federal constitution of the United States, and the question whether the League of Nations, as submitted to the Senate of the United States, is in

violation of any of the provisions of the constitution of that country.

We of course inherit from you this character of question, because I presume the written constitution of the United States was suggested by our relations to the Mother Country. The powers to be exercised by a dependent government under a charter of that government, with a sovereign or with a court of a sovereign to pass on the question whether that charter has been violated or not, suggested what has followed in the United States. It was extended in this wise. The United States is an independent sovereign government with three branches, the legislative, executive and judicial branches, somewhat more rigidly separated than are those branches in your government. They are co-ordinate branches. Who, then, is to determine whether each branch keeps within its limitations? The court was forced into the position, in the litigation of private rights and in its obligation to declare the law, of having to pass on the validity of the action of the legislative and executive branches, even though they were co-ordinate branches. Of course that duty is limited by the possibility of raising the question in a litigated case where the court must act and declare the law accordingly.

So it is that we have had in our country lawyers who were constitutional lawyers-and, I have thought, a good many who were unconstitutional lawyers. Therefore, even though this may seem solemn and narrowly professional, it would not seem so at home. When you wish to dignify a man at home among his clients, not so much among his fellows at the bar or with the court, you call him a "con-sti-tu-tional" lawyer. There is something about that name that so fills the mouth that it carries dignity with its very expression.

Now, you must be interested as lawyers and as leaders of political thought in Canada in what the powers of the United States are as a neighbour in making treaties. That is the question that I want to

discuss to-day. You must be interested to know how far we can go, and how far you can go in entering into contracts with us and be sure that when the contracts come to be enforced we cannot plead that we were acting ultra vires.

The treaty-making power is entrusted, in our constitution, to the President and it is resided in the executive power:

"The President shall make treaties by and with the advice and consent of the Senate

two-thirds of those present. The Senate is the body, we say, that represents the States. It is a body whose membership cannot, by the terms of the constitution, ever be changed. Each state is entitled to two representatives; and that is the only provision in the constitution now that is not the subject of amendment. And this requires that those who are selected by the States-two-thirds of them-shall ratify any contract or treaty that we may make with other countries. Congress is not the treaty-making power; it is the law-making power.

Now you ask-and I refer to this because it seems to arouse some interest when it is referred to: How did we make the Reciprocity Treaty-or propose to make it? (Laughter.) Well, that arose in this wise. It was not a treaty. We had an informal agreement, but it was not a treaty that we made at all. Each government agreed, through its legislative branch, informally to pass a law. The law of the United States was that tariff rates with Canada should be at a certain figure whenever Canada should pass a law of a similar character. Each could retreat from that at any station at all. There was no obligation to continue it; there was no promise to continue it. It was a case where the law on one side was made to be dependent on the operation of the law on the other. It was, if you choose to call it so, a meeting of minds, which could be withdrawn from at will, but it was not a promissory agreement in the sense of contracting to do something in the future.