For a treaty to which many nations would be parties, it would only be necessary to agree upon a number of members possessing the confidence of the contracting countries, and to allow each of the nations in dispute to add one of its citizens or subjects to the permanent membership thus composed, which may be considered the nucleus of the commission.

Because of the interest and importance of this treaty, four of its articles are quoted. The first, dealing with jurisdiction is thus worded:

Controversies which may arise among the three Contracting Parties, or between two of them, on any subject whatever originating in the future and which can not be adjusted by diplomacy, or submitted to arbitration in conformity with existing or future treaties, shall be submitted for investigation and report to a Permanent Commission organized in the manner established by Article 3. The High Contracting Parties engage not to commit hostile acts before the report of the Commission established by the present treaty, or until the expiration of the period of one year mentioned in Article 5.

The third article provides that the commission shall be organized as follows:

In order to constitute the permanent commission referred to in Article 1, each of the High Contracting Parties shall appoint a delegate within three months after the exchange of ratifications of the present treaty. Each Government may revoke the appointment of its own delegate at any time before the beginning of the investigation, but shall, however, designate the successor in the same act of revocation. Vacancy due to other causes shall be filled by the respective Government, and the provisions of the present treaty shall not be suspended thereby.

To the commission thus formed, the fourth article requires that:

The controversies mentioned in Article 1 shall be submitted for investigation and report to the commission immediately after the breakdown of the diplomatic negotiations for their solution. Each of the Governments interested in the controversy can convoke the Commission. In order that the convocation may produce its effect. it is sufficient to communicate it to the two other Governments. The fifth article deals with the procedure, which it regulates in the following manner:

The Permanent Commission shall be constituted in the city of Montevideo within three months of its convocation, and it shall

determine the rules of procedure necessary for the accomplishment of its mission. If for any reason the Commission can not meet, it shall, at the expiration of the three months, be considered as constituted for the purposes of the periods established in the present article. The High Contracting Parties shall submit the antecedents and the information necessary for the investigation. The Commission must present its report before the expiration of a year from the date of its constitution. If it can not complete its investigation nor prepare its report within the period fixed, it may extend the period for six months or longer, with the consent of the High Contracting Parties.

As in the case of the Treaties for the Advancement of Peace, to which only two contracting nations are parties, the report is advisory, leaving it to the nations to take such action as their wisdom, discretion, or special interests may suggest.

But Mr. Bryan's plan and method of composing the commission is as applicable to an international court of justice as to an international commission of inquiry. In enumerating the advantages of his method of constituting the Board or Commission, Mr. Bryan says that in order to assure fairness two members should be added in every investigation, one of whom should be chosen by each side; and that the temporary should possess equal authority with the permanent members during the investigation for which they were selected. If an international court were to be formed by the civilized nations professing and practicing international law, and if the court were to consist of an odd number of judges,-not less than nine, nor more than thirteen,—each litigating nation could, if not represented on the bench, appoint "in order to assure fairness," one of its subjects or citizens, to sit with the permanent judges during the trial and disposition of the case. The judgment would, under given conditions, be reached by permanent and indifferent members who would nevertheless enjoy the advantage of the presence of alert and vigilant representatives of the litigating nations. The judges would also benefit by the knowledge which the temporary members possessed, of the laws and constitutions of the countries in controversy, without danger that the decision would in any way depend upon these frankly interested parties.

A court constituted in this manner would be as ready as the commission to assume jurisdiction and if either party could thus lay its case before the court as it may before the commission, a judgment would

be reached by judicial means ascertaining the rights and duties of the contending parties.

As in the case of the commission, it is not necessary to enforce the decision as execution of an arbitral award depends upon the good faith of the parties, and good faith has hitherto been found sufficient. If we would frankly admit that the duty of the judge is to decide and not to execute, we could by this simple device secure a judicial decision of every justiciable dispute when and as it arises, upon the initiative of the party in interest, and leave public opinion to do the rest.

By this method a special agreement for each case would not need to be negotiated and any nation could as plaintiff carry its difference to the court and set it in motion. If each party were left free to accept and to comply with the holding, according to its standard of honor and conception of its duty in the premises, there could be no greater objection to a treaty creating a permanent international court of justice instead of or in addition to a permanent international commission of inquiry, and, as far as the United States is concerned, there would be thirty precedents for signing, twenty-nine precedents for ratifying, and twenty precedents for proclaiming such an agreement.

We are so accustomed to associate execution with judgment that we find it hard, if not impossible, to separate the two and think of one without the other. Yet it is a fact that the two grew up separately, that the judgment antedated the execution and that it is only in fully developed systems of jurisprudence that the two are combined. They are concomitants in suits between private suitors, they are not inseparable companions in litigation to which nations are parties. It is therefore well to let experience decide whether execution is necessary, and to suggest the terms of an agreement on this subject, if one should prove to be advisable and practicable.

The absence of the sheriff does not prevent the negotiation of treaties of arbitration, the absence of the marshal should not delay the negotiation of a treaty for judicial settlement. The experience had with the one suggests the feasibility of the other, and a permanent nucleus of judges, chosen by the nations, to pass upon their justiciable disputes, would assure a judgment by disinterested parties, in accordance with a treaty creating the obligation for all of the high contracting parties to submit their controversies to the same body and number of indifferent judges, preserving to each equality of representation upon the bench during the trial and disposition of the case.

This equality would not be affected by the fact that a member of the court happened to belong to one of the litigating nations, inasmuch as the other litigant could exercise its right of appointment for the case and have its views presented by a judge of its own choice, who would, it is to be presumed, be equally well informed and vigilant as the judge of the other litigant.

By this method we would thus have one obligation for all, and an equality of representation for each at the very moment when it is desired and supposed to be of prime importance.

Possessed of the experience which would necessarily result from such an institution, the nations could then in the light of this experience and of its lessons establish a more perfect tribunal, just as the framers of the Constitution of the United States created a more perfect Union. because of the experience and the lessons of the Confederation.

To the modern man with the medieval mind, these treaties will seein but sorry stuff, for they decide nothing, leaving the nations free to adopt or to reject the report of the commitee of inquiry. To others they will seem unheroic, as physical force is neither invoked to compel the contracting parties to submit the dispute to the commission nor to enforce its findings.

To those who believe in good faith and that it can only be educated, not coerced into action in conformity with the given word, as well as to those who regard public opinion as the universal and supreme sanction before which in the long run crowns are humbled and against which the mailed fist strikes in vain, these harmless agreements, for they can neither injure man nor nation, will be a comfort and a hope: a comfort that the persuasion of public opinion is relied upon instead of physical coercion, and a hope that other advocates of justice between nations. will regard these treaties as precedents for further progress.

Any dispute that can be talked about can be settled; any dispute that is talked about must and will be settled in accordance with the dictates of an insistent and enlightened public opinion.

JAMES BROWN SCOTT.

WASHINGTON, D. C., July 9, 1918.

Letter of Secretary of State Bryan to the Honorable W. J. Stone, Chairman of the Committee on Foreign Relations of the United States Senate, August 1, 19141

MY DEAR SENATOR:

August 1, 1914.

In compliance with your request, I am sending you a comparison of the twenty treaties showing wherein they are identical and wherein they differ. The treaty with Salvador, signed August 7, 1913, is the first of this series, and the text of this treaty will be used as the basis for comparison.

The first clause of Article 1 of the Salvador treaty reads:

The High Contracting Parties agree that all disputes between them, of every nature whatsoever, which diplomacy shall fail to adjust, shall be submitted for investigation and report to an International Commission, to be constituted in the manner prescribed in the next succeeding article;

This clause in the treaties with Guatemala, Panama, Honduras, Nicaragua and Persia is identical with Article 1 of the Salvador treaty, and in the treaties with Denmark, the United States of Venezuela, Norway, the Argentine Republic and the Republic of Chile is substantially the same, the difference being merely in the use of other words of the same meaning.

The first clause of Article 1 of the Netherland treaty reads:

The High Contracting Parties agree that all disputes between them, of every nature whatsoever, to the settlement of which previous arbitration treaties or agreements do not apply in their terms or are not applied in fact, shall, when diplomatic methods of adjustment have failed, be referred for investigation and report to a permanent International Commission, to be constituted in the manner prescribed in the next succeeding article;

and this language is followed substantially in the treaties with Bolivia, the Portuguese Republic, Switzerland, Costa Rica, the Dominican Republic (see first sentence in Article III), Italy, Uruguay, and Brazil -the treaty with the United States of Brazil limits questions of an

1 MS. Department of State.