He has come to talk with regard to the answer to be given to the Czar's rescript calling the Conference at The Hague. I think you have thought a little about that subject, and I believe you have written something upon it. Won't you sit down with Lord Pauncefote and discuss it?" And so that venerable diplomat and jurist sat down with me and for half an hour we discussed this subject. "It is quite impossible," he said very calmly, "that anything should be done at that Conference in the direction of disarmament or of arresting armament; but isn't it possible that there should be a movement in the direction of a court of arbitration?"

After relating this very interesting incident, Mr. Hill proceeded:

I will not detain you very long upon that. The instructions of our department to our delegation sent to The Hague contained a brief history of the peace movement in America and a plan for an international court. The British Government also instructed Lord Pauncefote to propose, at the opportune moment, if an opportune moment ever came, in the Hague Conference, a tribunal of arbitration; and that was done by him. Afterward, a similar proposal was made by the Russian Government, but no proposal of that kind had been contained in the original rescript of the Czar.

The result was that the First Hague Conference produced important conventions, the chief of which was the Convention for the pacific settlement of international disputes; but almost as nugatory as the idea of disarmament, was the idea that a merely diplomatic court, such as this arbitral tribunal was designed to be, would ever settle the differences between nations in any judicial way.2

Mr. Hill's modesty did not permit him to say that the pamphlet which Lord Pauncefote held in his hand, to which Mr. Hay so gently and smilingly referred, was none other than the pamphlet entitled "International Justice," which Mr. Hill had written upon the subject and which Mr. Hay had himself given to Sir Julian. Mr. Hill's modesty likewise prevented him from saying that it was his own hand that drafted the instructions which Mr. Hay approved and signed, containing "a brief history of the peace movement in America, and a plan for an international court." The pamphlet on international justice, which figured so prominently when the fate of the Hague Conference hung in the balance, thus ends in language which is as timely to-day as when it was written in 1896:

1Proceedings of Fourth National Conference of the American Society for Judicial Settlement of International Disputes, 1913, pp. 383-4.

2Ibid., p. 384.

3 Printed in the Yale Law Journal, October, 1896, p. 1.

All that has yet been said or written upon this great problem probably constitutes little more than the rude scaffolding of that great temple of international justice whose dome will yet shelter the nations of the earth from the wrongs of oppression and the horrors of battle. But its foundations are laid in the moral nature of humanity; and, although-like a vast cathedral grown old with passing centuries-it is still uncompleted, we may bring our unhewn stones to lay upon its rising walls, in the faith that its invisible Builder and Maker will shape them to a place in the permanent structure.

Reserving for later consideration the service which can be expected of a diplomatic court, to use Mr. Hill's language, it is advisable to consider somewhat in detail the court which he termed diplomatic, but which the Conference preferred to call the "Permanent Court of Arbitration of The Hague."

The Conference stated, in Article 15 of the Convention for the pacific settlement of international disputes, the object of international arbitration to be "the settlement of differences between States by judges of their own choice, and on the basis of respect for law," and in the 16th article it recognizes arbitration as the most effective and most equitable method of settling disputes of a legal nature which diplomacy has failed to settle, especially in the interpretation and application of international conventions. For the purpose of facilitating an immediate recourse to arbitration in such cases the signatory Powers agreed in Article 20 of this Convention "to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention." That is to say, the Conference declaring arbitration to be effective and equitable especially in questions of a legal nature, or, as we would say, in questions of a Justiciable nature, proposed to facilitate the recourse to arbitration by creating the necessary machinery to carry into effect the recommendation of the Interparliamentary Union, and inserted in the Convention rules of procedure to give effect to the recommendation of the Institute of International Law.

Now the Permanent Court was, according to Article 21, to receive and to decide all cases of arbitration, unless the parties agreed to institute a special tribunal without reference to the pacific settlement Convention. The Court must have judges; therefore the Conference provided in Article 23 that within three months after the ratification of the Convention "each signatory Power shall select four per

sons at the most, of known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of arbitrators." These persons were to be appointed for a period of six years; they were to be eligible for reappointment, and their names were to be inscribed in a list to be placed in the International Bureau created by Article 22 of the Convention, to serve as a clerk to the Court.

The next step to be taken was the creation of a temporary tribunal from the list of the judges inscribed in the Bureau, and notified to the signatory Powers, and according to Article 24, the procedure to be observed was as follows:

When the signatory Powers desire to have recourse to the Permanent Court for the settlement of a difference that has arisen between them, the arbitrators called upon to form the competent tribunal to decide this difference must be chosen from the general list of members of the Court.

Failing the direct agreement of the parties on the composition of the arbitration tribunal, the following course shall be pursued: Each party appoints two arbitrators, and these together choose an umpire.

The seat of the tribunal was to be at The Hague, and its place of session was only to be altered with the assent of the parties (Article 25). A body called the "Permanent Administrative Council," composed of the diplomatic representatives of the signatory Powers accredited to The Hague, was to organize the International Bureau which when organized was to be placed under its direction and control, to notify to the Powers the constitution of the Court, to provide for its installation, and in general to supervise the Court and the Bureau, whose expenses were to be borne by the signatory Powers in the proportion fixed for the International Bureau of the Universal Postal Union.

Such were the provisions concerning the Court adopted by the Conference, recommended to the twenty-six Powers participating therein, and ratified by them without exception, and to which all the Powers invited to the Second Hague Conference, some forty-four in number, have since adhered.

The provisions of the Convention of 1899 have been modified in only one essential point, which it is necessary to consider in this place. It will be observed that under Article 24, as quoted, each of the Powers in dispute could select two arbitrators both of whom could be its sub

jects or citizens. This meant that in all probability four of the five judges would be interested in the outcome of the proceedings, with the result that the dispute either would or could be decided by the umpire, who was likely to be the only disinterested and therefore impartial person. The second Hague Conference of 1907 modified this procedure by providing in Article 45 of the revised Convention that "Each party appoints two arbitrators, of whom one only can be its national or chosen from among the persons selected by it as members of the Permanent Court." That is to say, three persons constituting a majority of the Court were to be disinterested parties, so that the decision of the case would rest in their impartial hands.

Now what was the nature of the institution created by the First Conference? Its framers considered that they had established not merely a Court, but a Permanent Court, for they so said. But it is difficult to call a Court "Permanent," which does not exist, and which only comes into being when it is created for the trial of a particular case, and goes out of existence as soon as the case is tried. It is difficult to consider as a court, a temporary tribunal, which is not composed of judges, because by Article 24 of the Convention of 1899 the tribunal does not exist, but is to be created. It is therefore difficult to see how the Court is "accessible at all times," when, as a matter of fact, it does not exist, and only becomes accessible when it has been created by the parties in litigation and is then only accessible to them. The Conference did not call the creature of their hands a court of justice. It was to be one of arbitration, and in Article 15 they defined what they meant by arbitration, stating that it is "the settlement of differences between States by judges of their own choice, and on the basis of respect for law." That is to say, differing from courts of justice, the judges are to be of the choice of the parties in controversy; whereas judges of the parties in litigation are rigorously excluded from national courts of justice. Again, the decision is to be on the basis of respect for law, which does not mean necessarily that the decision is to be reached by the impartial and passionless application of principles of law, as in the case of municipal courts, but the decision is to be reached "on the basis of respect for law," which may be a very different matter.

Three delegates to the Second Hague Conference, two of whom had attended the First Conference and had taken an active part in the creation of the so-called Permanent Court, spoke their minds freely on the nature of the Court. The late Mr. Asser said:

Instead of a Permanent Court, the Convention of 1899 only created the phantom of a court, an impalpable ghost, or, to speak more plainly, it created a clerk's office with a list.1

The late Mr. de Martens, whose interest in arbitration has been so keen and his success as an arbitrator so marked that he has been called the Chief Justice of Christendom, said:

What, then, is this court whose judges do not even know each other? The Court of 1899 is only an idea which sometimes takes the form of body and soul and then disappears again.2 Finally, an American delegate to the Second Conference stated:

In a word, the Permanent Court is not permanent, because it is not composed of permanent judges; it is not accessible because it has to be formed for each individual case; finally, it is not a court, because it is not composed of judges.3

It is not disrespectful to point out the real nature of an institution, even though the result may be to show that it is not what its name would seem to imply, and that instead of being a Permanent Court, it is merely a list of the names of persons kept in a Bureau at The Hague, from which nations in controversy can select five persons to form a temporary tribunal. This right of selection of arbitrators nations have always possessed, and doubtless in many cases they would have chosen the very persons inscribed in the list at The Hague. But it is only fair to say that the machinery, however imperfect, devised by the First Hague Conference has nevertheless rendered inestimable services to the cause of arbitration by putting the stamp of approval of an international conference upon arbitration as a means of settling difficulties, and by turning the minds and the thoughts of nations in controversy to The Hague, where this temporary tribunal of a very special kind can be called into being for the settlement of their disputes which diplomacy has failed to adjust.

A proposition had been made at the First Conference to conclude a treaty of arbitration, pledging the Powers to submit certain categories of disputes to arbitration without reservation of any kind. The proposition was rejected, owing to the unyielding opposition of Germany and Article 19, the material portion of which has been quoted, seemed to register defeat instead of a triumph. And yet a triumph it was,