is not altogether well founded. Nations desire an international tribunal and have had no difficulty in establishing one ad hoc when the occasion arises, when the dispute is unimportant or would not justify the expense of war, or when political considerations dictate submission to arbitration rather than recourse to war-in short, when they feel that they have more to gain by arbitration or other form of peaceful settlement, such as mediation, than by war. The hundreds of arbitrations that have been held illustrate this fact. But when the issue is such that peaceful adjustment seems inappropriate or inadvisable, the peaceful method is not chosen; not because there is no machinery for peace, but because there is no will for peace. When President Wilson, in 1914, launched the Vera Cruz expedition, he had just been concluding some thirty so-called Bryan treaties providing for the submission to a Commission of Inquiry of the disputed facts of an incident likely to cause a conflict. The alleged insult to the American flag by two Mexican subordinates in Tampico was eminently suitable to this method of adjustment. Yet President Wilson, irritated at the obstinate refusal of President Huerta to abdicate his office and oblivious to his own declared principle of a peaceful settlement of disputes, found in the incident that overt act which was deemed to justify the making of war on Mexico, and the sacrifice of the lives of numerous Mexicans and Americans at Vera Cruz.

Austria, in 1914, found that the assassination of the Archduke placed so great a strain upon her patience that she refused to tolerate an arbitral settlement of her differences with Serbia, and launched upon a punitive expedition which ultimately engulfed the world and led to her own ruin and that of the rest of Europe. And now France, injured, disappointed and belligerent, has found irresistible the impulse to invade and crush Germany and resents the efforts of reasonable advisors to adjust the issue between the two countries by mediation or arbitration. The issue in part involves an interpretation of the Treaty of Versailles, within the jurisdiction, therefore, of the Permanent Court of International Justice. The suggestion of submitting to an international commission of bankers or statesmen the amount that Germany can pay is resented as offensive, inasmuch as the Reparation Commission, under French control, has already fixed an amount that

is admittedly more than Germany can pay. The fact that the present policy of France may again engulf Europe in war and ruin victor and vanquished alike beyond hope of recovery, appears to be a secondary consideration only.

These illustrations are cited to dispel the illusion that nations in dispute necessarily desire judicial machinery for the settlement of their differences, and that the great need of the world to bring about such settlement is an International Court. On the contrary, nations that believe they have more to gain or are likely to be more successful in war than in arbitration or peaceful settlement, often prefer the arbitrament of the sword and resent the efforts of mediators to frustrate the accomplishment of their objects. Nations that have the physical power to enforce their will are likely to prefer to be the plaintiff, judge and sheriff in their own cause, rather than to call upon the impartial award of a disinterested tribunal.

If I judge correctly the temper of the world, there is less disposition now to adopt the civilized methods of adjusting conflicting interests than there has been for generations. Few people realize or are willing to contemplate the facts that nine years of devastating war and disintegrating peace have undermined the moral foundations of many densely populated areas of the world, and that there is more faith in the efficacy of force-accompanied by a growing contempt for law-as a solution for international differences, than there has been since the days of Napoleon. The forces of disintegration are apparently overpowering the forces of reconstruction, due primarily, I believe, to the shortsighted policy of the present managers of European political affairs.

The arguments of the opponents of the Court, founded upon an alleged lack of machinery to enforce the decisions of the Court, are not, it is believed, substantial. It is surprising to find how strongly this alleged defect impressed Lord Phillimore of the Advisory Committee of Jurists. Among the thousands of arbitration cases we have had, less than a half dozen have been refused execution by the losing nation. These have mostly been boundary disputes and the excuse has usually been an excess of jurisdiction by the arbitrator. Inability to enforce execution of the award, therefore, is so insignificant a factor as not to warrant

consideration as a defect in the organization of the World Court. What is important is the inability to compel nations to submit to a court, and it has already been observed that that important function was taken from the Court by the larger Powers represented in the Council of the League.

While no criticism of the Court, it must not be overlooked that a judicial decision is not of necessity a guaranty of peace. The student of American history need but be referred to the Dred Scott decision of the Supreme Court to be convinced of this. That decision made the Civil War inevitable. Some years ago Ecuador and Peru submitted their boundary dispute to the arbitration of the Council of State of Spain. After deliberating on the matter, the Council of State let it become known that their award, still unannounced, placed the line at a point which would give much territory to Peru and leave Ecuador with a very small Both countries realized that the award if handed down would invite war between them, so at the suggestion of the litigating countries the award has been withheld.

area.

It is said that our Supreme Court had no business for some years after its organization, and that the inability of the so-called World Court to secure any important cases outside the Treaty of Versailles is due to the fact that the opportunity has not yet been presented to submit important cases to the Court; and that it is likely to grow as did our Supreme Court. In the absence of obligatory jurisdiction and a will to peace, the likelihood of the Court's acquiring jurisdiction over important cases as time goes on does not seem great. If it does happen, the cases will probably be furnished by the smaller Powers. Yet there is another fallacy in the analogy. When we began life as a nation, there was hardly any business that could go to the Supreme Court; its jurisdiction was new and doubtful and there were few disputes between the States requiring judicial settlement. On the other hand, there are today in the archives of probably every Foreign Office hundreds of pecuniary claims involving no political issues and entirely capable of submission to judicial settlement. Were there a serious will to give cases to the Court, these hundreds of claims could be at once placed on the docket. The unfortunate fact at present is that these money claims are subjected to the

vicissitudes of diplomacy, and the claimant is fortunate who obtains satisfaction in his lifetime. To cite but one illustration: We are now on the friendliest relations with Spain, yet American claimants against Spain are unable to secure the support of the Department of State for their claims because the Spanish Government will not entertain them, the reason being that the United States has refused to entertain the East Florida claims owned by the descendants of the Spaniards who were deprived of lands and otherwise injured when we obtained control of Florida. Inasmuch as the Senate refuses to permit an adjudication of the East Florida claims, the Department of State is itself helpless, and the unhappy position of the American claimant against Spain who has a claim of a purely legal nature, can be readily understood. Were nations willing to have these purely legal and non-political cases determined by judicial methods, the Court would be overwhelmed with business; but there again the factor of unwillingness to submit cases is the great obstacle.

In the light of the fact that the so-called World Court can have but little relation to the problem of peace, the issue as to whether the United States should now "join" it or not can hardly be placed on the ground that peace will thereby either be promoted or retarded. That issue, I believe, is unreal and fanciful. Perhaps we ought to aid any movement that even looks to the judicial settlement of cases, but when one of the announced inducements for our "joining" the Court is that we would never have to submit a case to it, encouraging an inference that probably we never would, one may properly question the purpose that it is intended that our joining shall subserve. Is it merely to encourage others to submit to the Court? Is it just a sentimental question, without possibility of any tangible effect on us? Is this the cherished American ideal? Persons having a serious desire to govern their actions by intelligence rather than emotion have a right to ask such questions. Can it be that the political platform which so long dedicated a plank to the conception of an international court contemplated a court to which we would never have to submit a case? We have such a court now in the Permanent Court of Arbitration, and to it we have submitted four substantial controversies. Would we submit any more cases to a Court over

whose composition for years to come we would probably have no say? If this is not likely, as it is believed, just what important function is our "joining" the Court designed to subserve? If it will not bring to the Court any more cases, is it intended merely as a friendly gesture, as an evidence of our moral support to nations having greater desire or courage to submit disputes?

Or is the charge of the more vigorous opponents of our "joining" the Court sustainable, namely, that it constitutes, as Mr. Hoover intimated and President Harding denied, a first step toward the League of Nations? If it does involve such a possibility, at least there is here a genuine issue as to policy. Although the Court is the direct creation of the League and depends upon the League budget for its support, it may be that it is so far dissociated from its organization that "joining" the protocol, as the Administration spokesmen have asserted, will involve no other commitments to the League. Yet the fact that so many professional and non-professional advocates of the League are so ardently enthusiastic for our "joining" the World Court, of whose real functions some of them appear to have only vague information, may afford some ground to the opponents of the League to suspect that the advocates of the Court are mainly concerned with its function as a door to the League. Unless it has some such significance, the issue is most unimportant; and many earnest students of foreign affairs, men like Senator Borah, the wealth of whose knowledge and the soundness of whose intuitions and judgments are not, in my humble opinion, exceeded by that of any other man in public life, have expressed the firm conviction that our adhering to the protocol of the Court can have no other purpose or effect than affording an entrance to the League. It is doubtless partly on that very account that the proposed step has had such wide support. If Senator Borah's view is justified in fact, the proposed policy deserves more profound consideration from American citizens than it has yet received. It is then more than a mere sentimental question, but one involving the political relations of this country to Europe. On that question, men may well differ and at this moment I have no desire to debate the issue. EDWIN M. BORCHARD.