however great may be his ability and however determined may be his impartiality, is likely to be affected by personal idiosyncrasies which would disappear or be balanced in a genuine court of three or more judges dissociated from the parties in interest.

The views just expressed have found large recognition in the cases so far presented to the Hague court. In the protocols providing for the settlement of the Pious Fund Case, the Venezuelan Preferential Question and the Mascate Dispute, it was expressly declared that no national of the countries in interest should form part of the special tribunals then provided. In the three cases named, the decisions of the court, whether right or wrong, carried with them a unanimity which added to the respect to be accorded to them. In the Japanese House Tax Case this idea was departed from, and in that, as the only one of the four cases before the Hague court, the national of a party in interest (the Japanese member)-and I express no opinion as to the correctness of his position—dissented emphatically from the judgment of his colleagues and sustained the position taken by his country.

I am aware that certain distinguished publicists, and among them may be mentioned conspicuously M. Léon Renault, dissent from this idea and urge that the nations in controversy should have some one present in the consultation room ready to explain the positions of their countries and enlighten their colleagues with respect to facts that they might otherwise overlook, but, to my mind, this argument involves confusion of the functions of judge and advocate, and the judges have the right always in open court to demand of the advocate any information needed. Further, the examples and illustrations above given, capable of great enlargement, sufficiently demonstrate the inadvisability of mixed courts.

I note that treaties of arbitration but just become effective between Belgium and Roumania, Denmark and Italy, Italy and Peru, Spain and Sweden and Norway (immediately prior to the separation), all provide that no subject of the signatory nations or person domiciled with them or interested in the questions in dispute can serve on the arbitral boards provided for. The suggestion now urged has, therefore, high approval.

But we must go further. Not alone should the nationals of the contending parties be excluded from the bench, but the parties themselves ought not to select their judges. At present, the rules of the

Hague convention anticipate the choice of an equal number of judges by the contending parties and their united selection of the odd man. It is but natural that the contestants should name, if they may, judges prepossessed either in favor of the nominating nation or known to be predisposed to decide the issue in a given way. The temptation would be strong on the part of the selecting nation to make choice of a judge whose prejudices might be presumed to be antagonistic to its opponent. If the court finally chosen should, for the reasons indicated or any others, contain members whose absolute even-handedness could be the subject of doubt, to that extent the dignity of its proceedings might be affected and the sanctity of its award fail in obtaining that free recognition which should pertain to the pronouncements of so preeminent a tribunal. We will consider later the manner in which this possible evil may be avoided.

But there is an important right which should be reserved to both parties the right of challenge. There are upon the Hague court publicists or politicians who, in the most open manner, have expressed their detestation of all things American, and it would be highly unfortunate were the United States compelled to appear before a tribunal containing such prejudiced judges. Only by the preservation in some manner of a right to challenge may this condition be avoided.

Again, if upon a proposition to be submitted to the court a selected member be known to have expressed public and decided convictions, he should be liable to challenge, a right we often find it necessary to exercise against jurymen in important cases between individuals. Furthermore, although no question can be raised as to the highly honorable and intellectual character of the present court, yet, hereafter, when there will come, as must, a large increase to the membership of because additions of signatory nations, and the court may have upon it members selected perhaps for political reasons rather than because of their moral and intellectual attainments, danger may exist that, no right of challenge being allowed, a momentous question may be presented to a court whose pronouncements would fail of general acceptance by the more advanced nations and would not be in line with the consensus of opinion of the most competent exponents of the science of international law. Furthermore, we should bear in mind. that the actual subordination of small nations to larger ones, which

guarantee their independence or the maintenance of their existing forms of government, may be such as to practically preclude nationals of the smaller nations from being proper judges in cases affecting the dominating powers, and from this condition of affairs may arise an additional and undoubtedly reasonable ground of challenge. For it must be borne in mind that not alone should the bench be able and impartial, but its character in these respects should be absolutely recognized by the nations at issue.

In what manner, then, may best be secured the selection of unbiased judges, maintaining a suitable right of challenge? A variety of suggestions may be made. One occurring to the writer as perhaps sufficient would be this: Whenever a case is about to be presented to the Hague court and the number of arbitrators to adjudge it has been determined by the protocol, the secretary of the court might notify the contending parties that, subject to their right of challenge, the judges will be taken from among the first ten or fifteen names appearing alphabetically upon the roll of judges and who have not been before called upon to render actual service. The parties in difference might then indicate to him their desire, if they have any, to challenge particular individuals, without, of course, being bound to state any cause for their action, and upon their answers being returned, the secretary could call upon a sufficient number of the first named qualified members to serve, filling vacancies which might arise from those lower down upon the list. Other bancs of judges could be made up in like manner until the list was gone through, and it might then be recommenced. This arrangement, however, should not operate to prevent any other manner of selection which might be determined upon in the protocol. It is believed that in the foregoing manner judges could be obtained whose determinations would be beyond all question of criticism, at least from the standpoint of partiality and most probably from that of right.

Let us summarize:

Judges upon the Hague court should, by the fact of their nomination, vacate any national position held by them. Their appointment should be for life, they receiving a salary commensurate with their positions. No judge should be allowed to practice before the court. No judge should sit upon a case in which his country is a

party. The litigant parties should not select the judges, but an ample right of challenge should be preserved.

At present questions of "independence," "honor" and "vital interests" are often reserved from compulsory arbitration. Independence is a postulate-not a matter for discussion. We may remember that in the nature of things questions of national independence cannot be considered arbitrarily any more than can the freedom of a man not charged with crime in a nation where all are equal before the law, and so remembering, this reservation becomes meaningless between nations recognizing mutually their equality by treaty. "Honor" is not a justification for private killings, and still less can it be for public ones. "Vital interests" spell out either the privilege of harrying another nation or of protecting one's self against harrying, while, were all nations obliged to submit all differences to the Hague court without any qualification as to "vital interests," there could be no harrying on the part of any nation.

With the development of a truly independent judiciary at the Hague whose deliverances were recognized as of necessity based only upon immutable principles of justice, the existing bounds set to arbitration would ere long become obsolete.

Washington, D. C.

JACKSON H. RALSTON.

INTERNATIONAL ARBITRATION

The distinctive features of human progress in the nineteenth century were the advancement of natural science, discovery and invention, the growth of human freedom and political liberty, the unifying and nationalization of races into independent states and the development of the principle and the extension of the practice of international arbitration.

If the experiment of international arbitration had not been madeeven in a rudimentary form-in ancient or medieval times, it would have been discovered and tried by force of political conditions and exigencies among modern nations, rapidly growing in wealth, population and power; commercially and politically active and enterprising; brought into intimate relations with one another; each having its own set of interests, its own diplomatic agencies, its own system of jurisprudence, its own tribunals for the determination of public and private controversies. Out of these multifarious relations and experiences would naturally have come suggestions of mediation, of conciliation, and of friendly arbitration.

In its origin and development, arbitration was resorted to rather as an expedient than upon principle; it was a function more or less religious or quasi religious and political in character rather than a judicial proceeding. Gradually, down to the middle of the nineteenth century-and more rapidly during the latter half of the century-it grew into final recognition as a principle of justice and high policy to be invoked and tested between differing states in all controversies not of a vital nature.

Adopted first as a simple expedient, next as a matter of policy and justice, and rarely as a matter of simple justice, it was finally developed into a permanent international institution of judicial justice by the Hague convention of 1899.

Among the institutions of human society, it has been the slowest and longest in maturing, the latest in its formal and permanent establishment. Its foundations have yet been barely laid. Its completion