wider and more intimate than it was a dozen years ago. Indeed, this new bond has been established since the date on which we were supposed to have become a "world power."

There is, then, in this direction not a shadow of ground for the further increase of our navy, unless the nation proposes to act the bully among the other nations and attempt to force its will upon unwilling powers and peoples regardless of justice and right, a supposition which even the most reckless defenders of a big and ever bigger navy would not care openly to champion. The whole weight of the argument for immediate limitation of our navy and army drawn from the general international situation of the world, and our own national position in particular, remains in all its force, rather strengthened than weakened by the larger and more prominent part which our country is now taking in the world's affairs.

Under these conditions it seems that the logical thing for the United States Government to do at the present time, without respect to what the other nations may or may not promise to do, would be to stop short in the increase of the army and of the navy and let it be known to all the world that it will live as if it trusted the sister nations, and is ready at any moment to unite with them in an agreement for general limitation of armaments. Such an example would almost certainly meet with an immediate and cordial response from the other nations, on whom the burdens of the present conditions bear much more heavily than upon us.

But however this may be as to the United States or any other single nation, it seems perfectly clear, under all the conditions of the times, that it is the imperative duty of the governments, in their collective capacity, to reach an agreement which at a very early day will relieve them, one and all, from the burdens which have grown to be so great and exhausting and which the peoples ought no longer to be called upon to bear. The nation that leads in inducing the powers of the world to take this step- and some nation ought at once to take the lead will have won for itself a place of honor in the world's history, than which it would be difficult to conceive a higher or a nobler.

BENJAMIN F. TRUEBLOOD.

THE PROPOSED COURT OF ARBITRAL JUSTICE 1

Before undertaking a systematic and analytical exposition of the project relating to the establishment of an arbitral court of justice as approved by the Committee of Examination B and referred to the First Subcommission of the First Commission, it may be useful to devote a few lines, by way of introduction, to the Permanent Tribunal of Arbitration created in 1899 by the First Conference and alongside which it is proposed to establish an arbitral court of justice.

It will be remembered that, in accordance with article 16 of the convention of 1899, " in questions of a legal nature and primarily in questions regarding the interpretation or application of international conventions arbitration is recognized by the signatory powers as the most effective and at the same time most equitable means of settling controversies which have not been settled through diplomatic channels."

In order that this solemn declaration, based on a principle as broad as it is beneficent, might not remain a dead letter, the conference undertook the creation of a tribunal before which international controversies should be settled by arbitration. Article 20 therefore provides:

For the purpose of facilitating recourse to arbitration in international controversies which have failed to be settled through diplomatic channels, the signatory powers agree to organize a Permanent Tribunal of Arbitration, accessible at all times and, unless otherwise stipulated by the parties, operating in accordance with the rules of procedure contained in the present convention.

The authors of the convention had in view the settlement of controversies by arbitration, and, the choice of the judges being one of the essentials of arbitration, they added in article 17:

The arbitration convention is concluded for controversies already existing or which may arise; it may relate to any controversy or only to controversies of a certain category.

1 The introduction to this article (pp. 772-783), concerning the proceedings in commission, is a translation of the report which the writer of the present article had the honor to present to the conference, and which will form a chapter in a forthcoming book on the Hague Conferences.-J. B. S.

Upon comparing these articles 16, 20, and 17 it appears obvious that questions of a purely legal nature were considered at that time as being peculiarly susceptible of arbitration, and that it was hoped. that by creating a permanent tribunal these questions could frequently be arbitrated and decided on the basis of respect for the law. There was reason to believe that the foundation had been laid for a real court in the legal sense of the word, except that in place of judges there would be arbitrators appointed by the free choice of the parties.

However, from the very fact that article 21 gave the court jurisdiction in all arbitration cases, it is obvious that the framers of the convention considered it possible to submit to it other problems than those of an exclusively legal nature. The unique institution which was being created was thus competent at once for purely legal questions, which it was to decide on the basis of a respect for the law, and for broader problems of an extra-juridical nature, the decision devolving in either case upon judges, or rather arbitrators, chosen by the parties at variance.

In modern nations judicial questions are decided in courts of justice by magistrates who do not derive their authority from the litigants, but in cases susceptible of an agreement to arbitrate judges chosen by the litigants are as appropriate as they would be inappropriate in a court of justice.

The difference between legal (juridical) and nonjuridical questions, as well as the procedure applicable to each, was clearly elucidated by His Excellency M. Bourgeois before the First Commission. Replying to the criticism directed by Mr. Choate and Mr. Asser against the work of 1899, he says that

If there are not at present any judges at The Hague it is because the conference of 1899, taking into consideration the whole field open to arbitration, intended to leave to the parties the duty of choosing their judges, which choice is essential in all cases of peculiar gravity. We should not [he added] like to see the court created in 1899 lose its character as a real court of arbitration entirely, and we intend to preserve this freedom of choice of the judges in all cases where no other rule is provided.

In controversies of a political nature, especially, we think that this will always be the real rule of arbitration, and that no nation, big 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.

But is the case the same in questions of a purely legal nature? Can the same uneasiness and distrust appear here? And does not every one realize that a real court, composed of real jurisconsults, may be considered as the most competent organ for deciding controversies of this character and for rendering decisions on pure questions of law?

In our opinion, therefore, either the old system of 1899 or the new system of a truly permanent court may be preferred, according to the nature of the case. At all events there is no intention whatever of making the new system compulsory. The choice between the tribunal. of 1899 and the court of 1907 will be optional, and experience will show the advantages or disadvantages of the two systems.

With these objects in view the framers of the present draft have set out to organize a court which shall be competent primarily to decide controversies of a legal nature. However, they did not desire to render it overexclusive by prohibiting it from passing on differences of another character. Their purpose was, above all, to advance the work of 1899, giving it a new and unmistakable scope by the establishment of an arbitral court of justice to pass judicially on international controversies.

Article 20, cited above, speaks of a permanent tribunal, but every one knows that the tribunal is not permanent, because it must be organized on the occasion of every case submitted to it. The only permanent thing is a list from which the judges must be selected in each particular case. The framers of the convention also desired that the court should be accesible at all times to the parties, but their hopes have been disappointed by the material defects of the institution. It can not be said that a court which does not exist is accessible at any time, much less at all times. One of the founders and friends of the court, His Excellency Mr. Asser, said of this institution: "It is difficult, time-consuming, and expensive to set it into operation."

However, as Mr. Choate observed (First Subcommission, ninth session, pp. 2-3):

When we read the speeches which were delivered while the establishment of this court was being discussed, we see that it was considered as an experiment and that it was hoped it might serve as a basis for the work of a future conference. Our efforts [he added] are not being directed toward diminishing this work, but on the contrary toward building up on its foundation, and we now seek the support of those who

began it. However great the result of the First Conference may have been in this regard, it could not satisfy the ever-increasing demands of the nations, only four cases having been submitted, and two-thirds of the judges, the total number of whom is about sixty, were not called upon to sit. It was certainly not owing to a lack of competence on the part of the eminent judges, and it is these very persons whom we should like to have to compose the new court. It appears to me as if certain nations had failed to appear before the Tribunal of The Hague on account of the expense involved by such a recourse. We should therefore first of all provide for having the expenses of the court, includ ing the judges' salaries, borne in common by all the signatory powers. The absence of all continuity in the Permanent Tribunal has greatly diminished its force and its influence. Each of its meetings has been disconnected with the others, and its occasional decisions, separated by both time and the diversity of their objects, have done little to advance the progress of the science of international law. They have done no more toward establishing the international jurisprudence which we are entitled to expect from a tribunal backed by the consent of all nations.

Nevertheless, the Permanent Tribunal has done some good work, but it was within the restricted limits within which it was allowed to operate. Let us try to make of it a Permanent Tribunal, with regular and continuous sessions. Such a tribunal would render its decisions on the authority of the united nations. It would gradually create a definite system of international law, which would have to be considered by the nations as a rule of conduct. By making this step in advance we shall justify the confidence which has been placed in us, and we shall make the work of this Second Conference truly worthy of comparison with that of 1899.

Such are the general outlines of the project which we present to

you.

To point out the obvious defects of the old tribunal is by no means seeking to belittle it. It marks a stage in the evolution of arbitration, but experience shows us that although the theory worked out may have been correct the practice is susceptible of improvements. The most effectual progress will be to render the tribunal permanent in fact. If any testimony were necessary regarding the need of these improvements, what more eloquent and authoritative testimony could be found than that of M. de Martens, the advocate and one of the founders of the court, the most experienced of living arbitrators, who, during the very first days of the conference, presented a proposition regarding the establishment of a permanent judicial committee, chosen from among the members of the present court? If the father