THE EVOLUTION OF A PERMANENT INTERNATIONAL JUDICIARY*

In his instructions to the American delegation to the Second Hague Conference, Secretary of State Root pointed out as the weakness of the present system of arbitration the prevalence of diplomatic ideals instead of purely judicial ideals in practice and procedure, and stated it as his opinion that the creation of a truly permanent international court composed of professional judges, who should act under a sense of judicial as distinguished from diplomatic responsibility, would increase the confidence of nations in arbitration and render the recourse to this method of settling international disputes much more frequent. Secretary Root's statement is so important in itself, the reasoning is so clear and unanswerable, the proposal to establish a permanent international court of justice so cleancut and precise, and the details which he specifies so simple and apparently self-evident, that I shall quote and comment briefly upon this passage in the instructions. "There can be no doubt," he says, "that the principal objection to arbitration rests not upon the unwillingness of nations to submit their controversies to impartial arbitration, but upon an apprehension that the arbitrations to which they submit may not be impartial. 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

* The substance of the present article has appeared in The Hague Peace Conferences of 1899 and 1907, Vol. 1, pp. 188-193, 460-464; and in the following addresses: 1. Judicial Proceedings as a Substitute for War or International Self-redress, published by the Maryland Peace Society, February, 1910. 2. Progress toward an International Court of Arbitral Justice, delivered at the Lake Mohonk Conference on International Arbitration, May 19, 1910, and printed in the Report of the Proceedings for that year.

methods are radically different, proceed upon different standards of honorable obligation, and frequently lead to widely differing results. It very frequently happens that a nation which would be very willing to submit its differences to an impartial judicial determination is unwilling to subject them to this kind of diplomatic process.'

It is but natural that the Supreme Court should be the prototype of the permanent tribunal which Mr. Root has in mind, because it was created by the original thirteen States, and in the one hundred and twenty years of its existence it has decided many controversies of an international character between the States of the Union. "If there could be," he says, " a tribunal which would pass upon questions between nations with the same impartial and impersonal judgment that the Supreme Court of the United States gives to questions arising between citizens of the different States, or between foreign citizens and the citizens of the United States, there can be no doubt that nations would be much more ready to submit their controversies to its decision than they are now to take the chances of arbitration." 2 In a later portion of the present article I shall endeavor to show how the Supreme Court itself developed from an imperfect form of arbitration by temporary commissions.

In the next place, Mr. Root instructed the American delegation to propose such a permanent tribunal to the Conference. "It should be your effort," he stated, "to bring about in the Second Conference a development of The Hague Tribunal into a permanent tribunal composed of judges who are judicial officers and nothing else, who are paid adequate salaries, who have no other occupation, 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." The delegation complied with its instructions and secured not only acceptance of the principle of permanency, but the adoption of a draft convention regulating the organization, the jurisdiction, and procedure of such a tribunal to be known as the Court of Arbitral Justice.

1 Foreign Relations of the U. S. (1907), part II, p. 1135.

2 Foreign Relations of the U. S. (1907), part II, p. 1135. 2 Ibid.

Finally, Mr. Root stated in a single sentence the foundations upon which the proposed international court should rest. "These judges should be," he said, "so selected from the different countries that the different systems of law and procedure and the principal languages shall be fairly represented. The court should be made of such dignity, consideration and rank that the best and ablest jurists will accept appointment to it, and that the whole world will have absolute confidence in its judgments." The first article of the proposed court embodies Mr. Root's instructions because it is to be "composed of judges representing the various juridical systems of the world."

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It is not my purpose here to discuss the Court of Arbitral Justice, but to show by a somewhat detailed examination not only the feasibility of Mr. Root's proposal, but how arbitration has unconsciously or consciously developed into judicial procedure, and how arbitration by contract of the parties to a quarrel or dispute became a substitute for self-help. Indeed, arbitration stands midway between self-redress, whose excesses it has stayed, and judicial decision, whose disinterestedness and impartial determination it foreshadowed. Arbitration is, therefore, not an end in itself, it is but a means, and marks a stage of transition from private lawlessness to public peace. As proof of these assertions, I shall examine in some detail the growth of Roman law, from the period of self-redress, through the period of arbitration by contract, whether the arbiters were solely judges of the disputants' choice, or, as in the later period of the Republic, persons selected from a panel of judges or arbiters, until the period of the imposition of the judge by the state and the execution of the judgment as an act of state in the later Empire.

I shall next show how arbitration between states by arbiters or judges of their own choice stayed self-redress, and how, in 1899, the First Hague Conference unconsciously followed the course of Roman judicial development by creating a permanent panel of judges from which the judges for the temporary tribunal should be chosen. And I shall, by a concrete example taken from the history of the United States, show how the system of the temporary tribunal with judges

4 Ibid.

of the litigants' choice was merged in the Supreme Court of the United States, which was, by express agreement of the States represented at the Constitutional Convention of 1787, invested with jurisdiction to entertain and decide suits between the States, with the result that the Supreme Court assumed the proportions and exercises the functions of a permanent international court, originally for thirteen, but now for forty-eight States, composed of judges acting under a sense of judicial responsibility in the determination of disputes between the States of the American Union.

The analogy between the development of judicial procedure in that system of law which lies at the basis of the law of most modern nations and which has largely entered into and given form to international law, and the growth of the system of arbitration between and among the states forming the family of nations, will, I believe, indicate the course of judicial development none the less real because unconscious; and the experience of the United States under the Articles of Confederation with temporary commissions of arbitration will show how public arbitration, just as private arbitration, glides insensibly or unconsciously into a permanent judicial institution; so that the establishment of a permanent international court of justice is in such strict accord with the course of judicial development as to appear inevitable. In predicting that an international court is inevitable, I do not mean to assert that it will duplicate or resemble in all respects national judicial institutions. The existing conditions between nations recognizing no superior require that the court be a creature of contract and negotiation of the parties to its creation; it can not be superimposed by the statute of a non-existing international legislature; the execution of its judgments must depend upon the good faith of the parties litigant, not upon the efforts of an international sheriff or marshal clothed with the power of the international community. Good faith on the part of the litigating nations, controlled by an enlightened public opinion, has been sufficient to secure compliance with the awards of international commissions and tribunals, and there seems no reason to provide for an emergency which has not yet presented itself.

For the purpose of tracing the development from self-redress to

arbitration by private contract, and from arbitration to judicial procedure as illustrated by the growth of the Roman judiciary, I shall rely upon certain well-known writers. The facts are patent and only require to be analyzed and interpreted. They suggest of themselves the analogy with international development, which will, however, be pointed out as occasion arises. For the various steps in the process by which arbitration stays self-redress, or permits its employment only when the litigant does not comply with the award, and by which voluntary arbitration of the parties becomes a compulsory process in which the state cooperates with the litigant in framing the issue and appointing the arbiter or judge chosen or agreed upon by them, I refer to and rely upon the following authorities: 1. Matthiass, Entwicklung des Römischen Schiedsgerichts; 2. Sir Henry Maine, Ancient Law; 3. von Jhering, Geist des Römischen Rechts; 4. Moyle, Imperatoris Justiniani Institutiones.

In the brief introduction prefixed to his monograph on the development of Roman arbitration, Professor Matthiass shows the general existence of arbitration in the primitive periods of the Indo-Germanic peoples and the transition from self-redress of the disputants to the intervention of the state. Sir Henry Maine states in a few brief but luminous sentences that the whole system of procedure of the Roman law originated in the repression of self-help by the Legis actio per sacramentum, which presupposes a quarrel between private disputants and a stay of the resort to force, by the substitution of a wager as to the right of the parties to the object in dispute. This fruitful conception is borne out by the actual procedure obtaining in the latter days of the Republic as appears by the account of the actio per sacramentum given by Gaius in his Institutes. Professor von Jhering shows by a 'careful analysis of the Roman forms of action that arbitration by private contract was their necessary prerequisite, and that they can only properly be understood by setting free the spirit from the letter in the procedure of the historic period of Roman law. And, finally, Dr. Moyle, relying upon von Jhering and Maine, sums up in a few measured paragraphs the process of development from self-redress through arbitration to a permanent and official judiciary.