Senator PEPPER. I was not attempting to color the statement; I just wanted to get the issue as a matter of international organization.

Mr. WICKERSHAM. I think it is perfectly clear.

Senator SWANSON. I understand your contention also is that we have here three co-ordinate branches of the Government, independent of each other, the executive, the legislative, and the judicial, and that when we wrote our Constitution we created the machinery, the President and the Senate, as agents to select judges without destroying their independence as a co-ordinate branch of the Government at all, and they have always been independent and have nullified laws frequently that we have passed, have they not?

Senator SWANSON. Then instead of creating new machinery to make the selection, which they could have done, as a good many people want to do about this Court; they could have created a commission to fix the salary of the judges, but they had sense to take machinery that already existed.

Mr. WICKERSHAM. Quite right.

Senator SWANSON. Has it interfered with the judiciary in America?

Mr. WICKERSHAM. I think it is the glory of the American judiciary that it has remained demonstrably independent throughout its whole history, and I think that, so long as the Court is composed of those of the eminence who constitute this Tribunal now-and I think we can say that will always be the case, because there are so many factors that have to conform in their selectionyou would have a body of judges who would preserve the integrity of the judicial system from attack. . . .

Gentlemen, I thank you very much for the patience with which you have listened to me. I hesitate to add to what is already. before you. I know the chairman and members of this subcommittee have studied this question carefully and are familiar with this whole structure and organization, and I refrain from repeating what is to them a familiar tale. It does seem to me that we have come to a point now where we must either abandon all hope of taking this forward step in providing a peaceful means for the settlement of international disputes according to the

constitutional administration of public justice or we must show some courage, some faith in ourselves, and give our adhesion to this Court, reserving to the future the special application of particular cases, but at all events saying to the world: We have for 25 years asked you to unite in creating such a tribunal; you have got it now, and we give you our adhesion and we express to you our hope that between us we can make this the greatest institution for the preservation of world peace that has thus far been erected.

STATEMENT OF DR. A. LAWRENCE LOWELL, PRESIDENT OF HARVARD UNIVERSITY, ON BEHALF OF THE WORLD PEACE FOUNDATION

Mr. Chairman and members of the committee, it is a little absurd for anyone to come down here and try to instruct this committee on matters they are more familiar with than he can be himself, but on behalf of many people and the society I represent here I want to say a few words.

Senator PEPPER. Please do not feel yourself restrained in point of time, sir, because we have arranged to be absent from the Senate, and we want you to feel that you are time free.

Senator SWANSON. Yes; we would like to hear you very fully and fairly.

Doctor LOWELL. I have not a great deal to say. It seems to me there are two questions here. One is, do we want any such court at all; and if we do want any such court, do we want this Court?

Senator Swanson has remarked that our Government has three branches, executive, legislative, and judicial, and of those the oldest is the judicial.

If you will excuse me for going back a few years, the civilization to which we belong, the Anglo-Norman civilization, is due to the courts. Really the political conditions in England were brought about by the courts. It was the judges in eyre of the Norman and Angevin kings that made our present civilization. It was they that built up the common law. The idea of legislation was a much later thing.

Really that which marks the central basis of any civilization— that is, the common ideas of men of how they should behave and how they should treat one another, which is, after all, the basis of the whole social fabric-comes to us first through the courts. Legislation is a much later thing, and the executive power is, except so far as it was a military power, a much later thing. Our civilization is based on the decisions of courts of the rights of man to

man.

It is, therefore, natural that our people should have desired an international court to regulate international rights. That is an old aspiration with us; it is not a new one to-day. It antedates its acceptance by any other country. It is our essential AngloAmerican idea that what was needed to regulate things, that could not otherwise be regulated except by force, was a court.

Suppose we were here to abolish all our courts and say that in the future all litigation shall be decided by arbitration, the people to be selected from a panel, by the various litigants, it would introduce a condition of disorder. Why? Because the great object of a court is not only to decide actual controversies, but to declare what the law is so that people may know how to behave so as to keep out of controversies. And the great advantage of a permanent court over such a thing as an arbitral body, the Tribunal of The Hague, which is nothing but a tribunal for the arbitration of particular questions, is that it teaches people how to keep out of controversies. Settling the controversy after it arises is important, but vastly more important is the prevention of the arising of controversies by people knowing what are their rights and what are not their rights. That to my mind is the reason for having a permanent court instead of The Hague Tribunal.

Our people have always been in the habit of desiring that kind of tribunal. It is an American tradition. We have told the world over and over again we want a court of justice. The rest of the world has hesitated and gone slowly. Now, why should we change our mind about it? If this particular court is acceptable and I will come to that later-why should we change our mind about it? Is it because we have grown so large that when we were little we wanted a court, and that now that we have become one of the most powerful nations in the world we do not want a court? Oh, no. That is not the position this country

has taken or the position that it ever will take. This country has always taken the position that we wanted to protect the weaker countries as much as the stronger ones.

Now, here is a curious fact: When this Court was brought forward the difficulty was the unwillingness of the little nations to agree upon the selection of judges. That is what wrecked it in the case of The Hague Conference. But as soon as this was settled all the little countries rushed into it and actually many of them accepted the compulsory clause, the optional or compulsory clause. The same thing happened when we formed our Constitution here. The little States thought it doubtful whether they wanted to go in under the present Constitution, but when the Constitution was actually formed the little States were the first to go in and the big ones were rather doubtful about it.

Yet, when we look over it, who has gained the most? The little States have not gained more than the big ones; the big States have gained quite as much as the little ones.

Let me assume for a moment, that we in America want a real court, a real permanent tribunal. Now, let us come to this particular Tribunal. This Tribunal has certain very great merits. I think one can not look over the list of those decisions with which you are, of course, perfectly familiar, without being rather impressed with the good judgment and good sense of the Court, that it has done its job and done it well, and it has done it pretty impartially.

The very case to which Mr. Wickersham referred, which was not in the form of litigation but in the form of the council asking advice, is the only case that has come up in which two great nations have been arrayed against one another in a dispute (England and France as to whether the position of the Maltese in Tunis and Morocco was to be regulated solely by French law or by treaties between the countries.) In that particular case the French representative voted with the majority against his own country. That was interesting. It showed to me a certain impartiality of attitude; not only something about the man's integrity, but it showed an atmosphere of impartiality in the

court.

Senator SWANSON. If he had been an arbitrator he would have stood by his country.

Doctor LOWELL. If he had been an arbitrator he would have stood by his country, as in the case of the "Wimbledon," where a German was added to the Court to represent his country, and he voted against the majority. But the French judge voted that his country's contention was wrong. That showed me there must be a judicial attitude in the Court. I think that is important in regard to the selection of those judges.

Of course, the objection is made, and as far as I can see as I talk to people the only serious objection that is made, is that this Court is somehow part of the League of Nations. I am in favor of joining the League of Nations, always have been. That is my particular creed, but I do not think this has got anything to do with joining the League of Nations. I do not think this involves it. People say, if you take this step, you will take another. I do not think that follows. I do not think we shall take any more steps unless we want to. The time may come when we want to, but that is independent of this.

The Senate is not going to prevent the United States joining the League of Nations if the United States desires to do so.

Senator SWANSON. I could not guarantee that, doctor, because I have served in the Senate so long.

Doctor LOWELL. But that is not to the point at the present moment.

Senator PEPPER. Senator Swanson believes in reservations even on that proposition.

Doctor LOWELL. I am not here to argue the question of the League of Nations because I consider this is totally independent of that.

Senator SWANSON. I know you do.

Doctor LOWELL. The League of Nations has become a little bugaboo and has been looked upon as a contagious disease. I do not think there is any contagious disease about it. I think that is a little absurd.

Now, what is the connection of this body with the League of Nations? Let me say simply this: If this Court were an agent of the League of Nations I should not believe in any state joining it whether in the League of Nations or not; and if it had administrative functions I should not believe in joining it. I do not believe, perhaps because I am an American lawyer, in a