created in 1899 lose its essential character, and we intend to preserve this freedom in the choice of judges in all cases where no other rule is provided.

"In controversies of a political nature, especially, we think that this way will always be the rule of arbitration and that no nation, large or small, will consent to go before a court of arbitration unless it takes an active part in the appointment of the members composing it."

In fact, it has been generally recognized in the Hague Conventions that it does not concern outside parties how nations settle their differences, if only it is done without using physical violence. One way of deciding may be considered preferable to another, and as long as all nations concerned in the matter agree, any plan can be followed; but, in order to place a nation that refused to proceed in default, it would be necessary to have one formula with the successive steps prescribed, so that the prosecuting nation could show full compliance on its part and clearly establish the default upon the part of its adversary.

In order that the refusing nation might have no just complaint to make of the personnel of the commission to which it is proposed to submit the cause, a plan for the selection of the arbitrators should be adopted which would guarantee the greatest freedom from objection that is conceivable. This requirement would probably be met by the provision that the nations that had appeared in the case at the office of the Clerk of the Court of The Hague, when less than five, might proceed, in rotation, in the order in which they had appeared, to eliminate the names from The Roll of the Members of the Court, of which each nation under the First Convention of The Hague already

has the right to name four, and the impartial members of the commission would be the three or five Members able to attend, whose names would be last stricken from The Roll; or, where five or more nations had appeared, each might nominate a certain number of persons as a panel; and, after the lapse of an interval of time in order to afford the other nations a sufficient opportunity to examine into the character and known sentiments of the persons proposed, continue by striking out in the above manner.

If some nations succeeded thereby in having one more chance to strike out than others, it would be due to their greater promptness in appearing; and the privilege, therefore, would be equally open to all.

The limitation to Members of The Court when less than five nations had appeared in a case, would, in a way, add to the dignity of the office of a Member; but, it would often drive the nations to select the arbitrators themselves, rather than to run the chance of submitting to an arbitration commission composed of the Members remaining after their opponents had had the opportunity of eliminating a considerable number of them. Were more than five nations parties to the contention, it could hardly be expected that they would agree on a selection; and a larger and open panel would afford a compensation.

A Judicial Court

The strongest contention made by the advocates of a Court with a permanent personnel is probably that contained in the instructions of the Secretary of State to the American Delegates to the Second Conference of the Hague:

"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