Cuba, and to protect the people thereof, as well as for its own defense, the Government of Cuba will sell or lease to the United States, lands necessary for coaling or naval stations at certain specific points to be agreed upon with the President of the United States."

It is quite clear from these three articles that the Government of the United States binds itself to maintain the independence of Cuba and to exclude other governments from lodgment in the Island. If any Government attempts to filch territory from Cuba or to subvert the government, it becomes the duty of the United States to make war and defend against such invasion. Does this treaty obligation thus created take away from Congress the power to declare war? It only creates the obligation on the part of the United States to wage war, and in discharging this obligation Congress must act, or the Government must be recreant to its agreement.

Thus, by reason and precedent, it would appear clear that this third plank of the platform of the League is not in any way an attempt to take from Congress the power which it has to declare war under the Constitution. The suggestion that in order to carry out such an obligation on the part of the United States, it would be necessary to amend the Constitution, grows out of a confusion of ideas and a failure to analyze the differences between the creation of an obligation of the United States to do a thing and the due, orderly and Constitutional course to be taken by it in doing that which it has agreed to do.

A CONSTRUCTIVE PLAN FOR HUMAN

BETTERMENT 1

What is International Law? It is the body of rules governing the conduct of the nations of the world toward one another, acquiesced in by all nations. It lacks scope and definiteness. It is found in writings of international jurists, in treaties, in the results of arbitration, and in the decisions of those municipal courts which apply international law, like the Supreme Court of the United States and courts that sit in prize cases to determine the rules of international law governing the capture of vessels in naval warfare. It is obvious that a Congress of the League with quasi-legislative powers could greatly add to the efficacy of international law by enlarging its application and codifying its rules. It would be greatly in the interest of the world and of world peace to give to such a code of rules the express sanction of the family of nations.

As to the submission of all questions at issue of a legal nature to a permanent international court, it is sufficient to point out that the proposal is practical and is justified by precedent. The Supreme Court of the Unted States., exercising the jurisdiction conferred on it by the Constitution, sits as a permanent international tribunal to decide issues between the States of the Union. The law governing the settlement of most of the controversies between the States cannot be determined by reference to the Constitution, to statutes of Congress, or to the legislation of the States. Should Congress in such cases attempt to enact laws they would be invalid. The only law which applies is that which

1 Address delivered before the National Educational Association, New York City, July 3, 1916.

applies between independent governments, to wit: International Law. Take the case of Kansas against Colorado, heard and decided by the Supreme Court. Kansas complained that Colorado was using more of the water of the Arkansas River which flowed through Colorado into Kansas than was equitable for purposes of irrigation. The case was heard by the Supreme Court and decided, not by a law of Congress, not by the law of Kansas, not by the law of Colorado, for the law of neither applied. It was decided by principles of International Law.

Many other instances of similar decisions by the Supreme Court could be cited. But it is said that such a precedent lacks force here because the States are restrained from going to war with each other by the power of the National Government. Admitting that this qualifies the precedent to some extent, we need go no further than Canada to find a complete analogy and a full precedent. There is now sitting to decide questions of boundary waters (exactly such questions as were considered in Kansas and Colorado) a permanent court, consisting of three Americans and three Canadians, to settle the principles of international law that apply to the use of rivers constituting a boundary between the two countries and of rivers crossing the boundary. The fact is, that we have gotten so into the habit of arbitration with Canada that no reasonable person expects that any issue arising between us and that country, after a hundred years of peace, will be settled other than by arbitration.

If this be the case between ourselves and Canada and England, why may it not be practical with every wellestablished and ordered government of the Great Powers? The Second Hague Conference, attended by all nations, recommended the establishment of a permanent International

Court to decide questions of a legal nature arising between nations.

The second proposal of the League involves the submission to a Commission of Conciliation of all questions that cannot be settled in court on principles of law or equity. There are such questions which may lead to war, and frequently do, and there are no legal rules for decision. We have such questions giving rise to friction in our domestic life. If a lady who owns a lawn permits children of one neighbor to play upon that lawn and refuses the privilege to the children of another neighbor because she thinks the latter children are badly trained and will injure her lawn or her flowers, it requires no imagination to understand that there may arise a neighborhood issue that will lead to friction between the families. The issue is, however, a non-justiciable one. Courts cannot settle it, for the reason that the lady owning the lawn has the right to say who shall come on it and who shall be excluded from it. No justiciable issue can arise, unless one's imagination goes to the point of supposing that the husbands of the two differing ladies came together and clashed, and then the issue in court will not be as to the comparative training of the children of the families.

We have an analogous question in our foreign relations with reference to the admission of the Chinese and Japanese. We discriminate against them in our naturalization and immigration laws and extend the benefit of those laws only to whites and persons of African descent. This discrimination has caused much ill-feeling among the Japanese and Chinese. We are within our international right in excluding them; but it is easy to understand how resentment, because of such discrimination, might be fanned into a flame,

if through lawless violence or unjust State legislation the Japanese should be mistreated within the United States.

We have had instances of the successful result of commissions of conciliation where the law could not cover the differences between the two nations. Such was the case of the Bering Sea controversy. We sought to prevent the

1 In an address before the National Geographic Society in Washington, D. C., Jan. 17, 1919, Mr. Taft has the following to say in regard to this arbitration:

"The United States, by a transfer from Russia, became the owner of the Pribiloff Islands, in the middle of the Bering Sea. Upon those islands was the breeding place of the largest herd of fur-bearing seals in the world. They were a valuable property and a considerable annual income was derived by the United States from the sale of the fur. Canadian schooners began what was called pelagic sealing. They shot the seals in the open Bering Sea. This indiscriminate hunting killed the females of the herd and was destroying it. Revenue cutters of the United States, by direction of the government, seized such sealing vessels, brought them into a port of the United States, where were instituted proceedings to forfeit them. Great Britain objected on the ground that the United States had no legal jurisdiction. The case was submitted to an arbitration. The treaty contained a provision that the arbitrators, should they reach the conclusion that the United States had no legal right, might recommend a basis of compromise. The United States asserted its right, on the ground, first, that it had territorial jurisdiction over the open waters of the Bering Sea by transfer from Russia, which had asserted, maintained, and enjoyed such jurisdiction, and, second, that it owned the seals while in the sea in such a way that the Canadian schooners were despoiling its personal property. The court of arbitration held against the United States on both points, deciding that Russia never had any territorial jurisdiction over the open Bering Sea to transfer to the United States, and that when the seals left the islands and swam out into the open sea they were the property of no one and were subject to capture by any one. The judgment of the court, therefore, was against the United States and awarded damages. Pursuing, however, the recommendation of the treaty, the court made itself into a council of mediation. It said that while the killing of seals in the open sea was not a violation of the legal rights of the United States of which that country could legally