"It has been a very general practice for arbitrators to act, not as judges deciding questions of fact and law upon the record before them under a sense of judicial responsibility, but as negotiators effecting settlements of the questions brought before them in accordance with the traditions and usages and subject to all the considerations and influences which affect diplomatic agents. The two methods are radically different, proceed upon different standards of honorable obligation, and frequently lead to widely different results."

In concluding he advocated:

66 *** a permanent

tribunal composed of judges who are judicial officers and nothing less *** and who will devote their entire time to the trial and decision of international causes by judicial methods and under a sense of judicial responsibility."

This might well apply in comparing the early practice of submitting questions to some monarch who had never achieved distinction as a jurist; but wrongfully assumes, that arbitrators would not, as a rule, or even when intricate questions of a legal nature were involved, be selected from persons of legal training, or accustomed to legal methods, or possessed of a realization of the duties of arbitrators.

It can well be said, moreover, that very few of the causes that would reach a court of arbitration would be of a strictly legal nature; and that were such questions presented, it would not be probable that no jurists would be found in the Commission, or that the legal principles bear

ing on the case would be so uncertain in their nature that the jurists and advocates before the court could not as a rule make clear their application, especially as the decisions would be "reasoned" (motivees). It is apparent that the above instructions were based on a familiarity with only one system of law; and that, the most antiquated and artificial practiced by advanced nations, in which half of the cases are decided on technicalities, and not on the merits, and as though it were supposed that an international court would master and apply all of these intricacies. If that is the aim, it will be fortunate should we proceed no further toward it. The perfection and simplicity of the civil law procedure commend it so strongly that there is but little doubt but that its principles will guide in international proceedings; unless, perhaps, in cases in which both parties are accustomed to the English system.

It was the attempt to adopt a plan for a judicial court (of permanent judges), notwithstanding the provision that its jurisdiction was only to have been optional, that proved to be the stumbling block in the effort made at The Second Conference of The Hague to create a permanent court. The Conference could not overcome the opposition of the smaller nations, to suggestions that they should not have equal representation in the tribunal, and they were further embittered by proposals of the larger ones to constitute the court without them. It was obliged to adjourn after recommending that the tribunal be established, "when the nations should agree upon a method of appointing the judges." This, of course, begged the whole question; and no such tribunal has come into existence.

The head of the American Delegation stated before the Commission charged with the consideration of the subject:

"It matters little to me whether

my

nation may have a

judge or not," but it will be noted, that he was not speaking for his nation, or even for his Delegation.

He further presented the following, which appeared to be a very plausible plan:

"Article One. Every signatory power shall have the privilege of appointing a judge and an assistant qualified for and disposed to accept such positions and to transmit the names to the international bureau.

Article Two. The bureau, that being the case, shall make a list of all the proposed judges and assistants, with indication of the nations proposing them, and shall transmit it to all the signatory powers.

Article 3rd. Each signatory power shall signify to the bureau which one of the judges and assistants thus named it chooses, each nation voting for fifteen judges and fifteen assistants at the same time.

Article 4th. The bureau, on receiving the list thus voted for, shall make out a list of the names of the fifteen judges and of the fifteen assistants having received the greatest number of votes.

Article 5th. In the case of an equality of votes affecting the election of the fifteen judges and the fifteen assistants, the choice between them shall be by a drawing by lot made by the bureau.

Article 6th. In case of vacancy arising in a position of judge or of assistant, the vacancy shall be filled by the nation to which the judge or assistant belonged."

Such a plan might furnish the numerous small nations such an opportunity to score some day against the few great powers, that the latter might not wish to run the risk

and it might be difficult, for this reason, to secure the ratification and adhesion of any such nation to it.

It might be said in opposition to this, that such a Convention could be accepted with safety, for a nation could always escape, as submission to the jurisdiction of the court was optional in each instance.

Legislation, or its equivalent, treaty or convention making, of such a character, although not without precedent, is to be deprecated, however, as it is not real, and attempts by the nations to deceive themselves are not acts of intelligence.

Such a court would require a calendar and delays of years in reaching causes might very soon result, as sometimes a single one would consume many months.

From the fact that all international differences would be submitted to this body composed of a few men, the attitude would inevitably result that it was higher than any other world organization; and, because of its powers, rulers would neglect no opportunity to show deference to its members.

It would be responsible to no power, unless to conventions, perhaps periodic; it could count upon exercising almost any act of discretion, without further comment than the creation of some convention which would provide a different rule for future cases; and it could rest assured that the nations could not act in such harmony as to operate anything like a recall of its members.

It would, from these causes, always tend toward arrogancy; for no situation could be presented to human frality with greater elevation from ordinary positions of life and fewer restraints in the exercise of power.

(See also, below, under The United States Supreme Court as a Model.)

The Arbitration and Court Systems Compared

The following are some of the objections to the Court system and advantages of the commission system:

Over forty nations would wish to adhere to the Convention to be adopted and, unless the principle of inequality in representation should be established, which would not be probable, each nation would expect at least one representative on the bench of that court. This would necessitate, either the creation of a body of judges, which, if all were to sit at a time, would be so large, that it would be liable to be swayed by the eloquence of the adovcates before it and even of its own members, rather than to be governed by quiet deliberation; or, the division of the court into smaller groups, or senats, in which case dissatisfaction in the apportionment would be inevitable.

The expense of the maintenance of a court of such size would doubtless rise to a figure out of all proportion with the importance of the cases that would be submitted to it.

If only the great powers were to present members, the smaller ones would be dissatisfied; and, if all were given that right in turn, complaint would often be made that the members presented were not men of such world-wide experience as would qualify them to assume such positions.

For instance, maritime matters might arise, and the majority of the members of the court at a given time might be from countries that had practically no modern marine experience.

No nation would like to present causes to a court in which it would regularly find one or more persons, who,