for arbitration often come too late, when feelings are inflamed and judgments warped by the imminent threat of war. What is required is a standing tribunal, set up once for all in time of peace, and composed of men of outstanding ability and judicial temper. Such a tribunal should have power to act as soon as a difference between nations shows itself above the horizon, and should have authority on the application of either party to a dispute, to interpret and administer the law. It would soon gain for itself the confidence of the world, and law and precedent and reason would take the place of anger and conflict.

I hope that I am not too sanguine in believing that the foundations of such a tribunal were well and truly laid on the 24th of July last at the Hague. The scheme then adopted has been partly made public, but it may be that I can give you some additional details.

Under this Hague scheme the Court of International Justice is to be a permanent court sitting at the Hague, and is to hold at least one session in every year. It is to consist in the first instance of eleven judges and four supplementary judges; and, except when otherwise especially agreed, it is to sit as a full court of eleven or at least of nine members. The judges are to be selected by the Council and Assembly of the League of Nations out of a list or panel framed for the purpose by the Arbitration Tribunal appointed under the old Hague Convention; so that, while the League will have a voice in the selection of judges, the persons from whom the selection is to be made will be nominated by an existing body not connected with the League and upon which the United States is already represented. Elaborate provisions are made for securing agreement among the electing bodies; but as a last resort, and failing agreement in any case, the judges already elected are to co-opt. Casual vacancies are to be filled in like manner. No state is to have more than one elected judge; but it is provided that when a state which is a party to a dispute has no elected judge upon the tribunal, it shall have the right to nominate a judge to sit for the purposes of that dispute. The court is to have power to adjudicate upon the usual juridical questions, which are fully enumerated in the scheme; but it is to adjudicate between states only and not between individuals. It is to be guided, not by arbitrary opinion, but by international law.

Its judgments are to be reasoned, and a judge who dissents will be able to record his dissent. The sittings will, except for some special reason, be held in public.

The scheme may appear in some parts to be somewhat elaborate; but that is not to be wondered at when so many interests and opinions had to be reconciled, and I think that (taken as a whole) it provides a working basis for the establishment of a Court of International Law.

Speaking in the United States, where the principle of the peaceful adjustment of international disputes has been long accepted, I express with confidence my strong opinion that the creation of such a court would prove to be of incalculable service to the future of the world.

I have spoken of the formal sanctions for the rules of international law. Let me conclude by a reference to that which may be an informal but is yet a potent support for those rules. I refer to the fact, evident to us all, that the English-speaking communities, the British Empire and the United States of America,are firmly resolved that lawless aggression shall if possible be brought to an end and justice shall be observed as between the nations of the world. That end can, I believe, be attained, but only if those great communities, which wield together so large a share of the strength of the world, maintain their unity of will and purpose. If that unity goes, all goes. If that holds, all holds, and hold it will and shall.

We have had our differences. In the eighteenth century we had a 66 scrap," as brothers do. In the nineteenth century we had "words," but we resolved upon a family settlement, which must have been a just one, for it pleased nobody. In the twentieth century real trouble came upon the family, and we fought side by side for the right; and that comradeship in battle forged for us a link stronger than brotherhood, the link which binds together men who have tried each other's mettle in common and heroic conflict with a deadly enemy. And now that the enemy is overthrown we look out together upon a world alive with warring appetites and desires, the appetites of those who would profit by the suffering of others and the desires of those who suffer. And there are those who would throw into this seething cauldron the poison of a revolutionary agitation, designed to kill all law, all

freedom, all learning, all comfort and beauty of life, in the vain hope that out of murder and rapine and pollution may be generated purity and peace. Here are new enemies to be met, and here, too, we may perhaps help one another.

In England the trouble seems near at hand. The continent of Europe is in sight, the North Sea is narrow, and communication is easy and swift. But our people are meeting the new danger with a stout heart and a cheery spirit, and we shall pull through. After the falls come the rapids, but after the rapids the smooth water. To some of you in this country the danger may appear distant, but you cannot, if you would, wholly disinterest yourselves in this new struggle. I have heard it said that the tides which wash the shores both of Europe and of America have their origin at one and the same point in the South Seas; and so any great change, any crisis in Europe or elsewhere in the world, is not without its effect here on this distant continent. For all practical purposes you are nearer to Eastern Europe today than we were a few years ago; and what happens there touches you as closely as it touches us. The trouble is yours as well as ours. If need be, we are ready, with God's help and the firm comradeship of the sister nations within the British Empire, to meet it alone; but I think that it is written in the book of fate that you and we shall face and overcome it together.

THE ASSAULT UPON AMERICAN FUNDAMENTALS.

BY

ALBERT J. BEVERIDGE,

OF INDIANA.

It was America's good fortune that most of her great lawyers in the period preceding and following the Revolution were statesmen. From James Otis to Daniel Webster they looked upon the making, interpretation and execution of constitutions and statutes with the eye of statesmanship rather than of legalism. In an even greater degree the preeminent judges of the period also conspicuously showed this outstanding characteristic. When rendering decisions and delivering opinions, especially in cases involving liberty and affecting government, the members of the Bench whose names we now revere, were always inspired by broad and far-sighted considerations of public policy. This quality particularly distinguished that greatest jurist-statesman of all time, John Marshall.

For example, it is to his courage and vision that we owe the destruction of the cruel and unjust European doctrine of constructive treason, and the establishment in the place of it of the rational, just and humane American law of direct and actual treason. In the face of a public opinion enraged to the point of violence, in defiance of a powerful administration bent upon conviction at any cost, John Marshall threw the shield of a distinctively American interpretation of the Constitution between the accused and those who were clamoring for his life. As a result, he was himself publicly denounced as a traitor, his impeachment was demanded, floods of scurrility and vituperation were poured upon him through the channels of the press, and finally he was hung in effigy on Gallows Hill at Baltimore amid execrations of maddened mobs.

In the notable trials of Aaron Burr and his reputed agents, John Marshall, with the calmness, wisdom and intrepidity of the just and far-seeing statesman, not only decided the legal points at issue, but, in doing so, laid down fundamental rules for the

guidance of those who make and those who execute, as well as those who interpret laws affecting human rights, especially at times of public excitement. He declared, for instance, that since treason is the blackest of offences, and the accusation that a person is guilty of that infamous crime inevitably inflames public passion and prejudice, courts should be correspondingly calm and temperate in considering such cases. He warned executives against permitting what he termed "the hand of malignity" from seizing and abusing objects of popular wrath; and he asserted that punishment for crime against the state "should be ordained by general laws formed upon deliberation, under the influence of no resentments, and without knowing on whom they are to operate, rather than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime or a construction which would render it flexible, might bring into operation.'

At no time since the historic argument of James Otis against the Writs of Assistance has statesmanship been more required of American lawyers and judges than now and throughout the period upon which we have entered. We are living in dramatic times when human destiny is being determined by the united thought and united action of immense numbers of men in the mass. Novel doctrines, unfamiliar to "civilization" as we understand that term, are being preached everywhere; and in great portions of the earth inhabited by scores of millions of people, are being put into practice. Throughout Europe and Asia the established order is being boldly challenged, and in every country of the old world the advocates of basic economic, social and political change are gaining in numbers and audacity.

Thoughtful Americans are beginning to realize that it is not impossible that our Republic founded upon our peculiarly American institutions of orderly freedom, may become the one stable and stabilizing force in a world of chaos; and the same vision which enables them to see that inspiring and saving possibility, also shows them the vital necessity of maintaining those American fundamentals without which our nation as established and thus far developed, cannot exist.

Ez parte Bollman and Swartwout, 4 Cranch 125.