it supposed, were inimical to it; and, even should the privilege of recusing judges be given, it would not like to be called upon to exercise that privilege regularly against any member.

The position of the judges could not be that of such indifference as to the parties before them as is that, for instance, of the Justices of the United States Supreme Court, who usually see before them simply unknown individuals. Only nations, some forty in number, would appear before the international court, and it could not be expected but that the judges in time would acquire a leaning toward some and away from others.

They would probably live together at the Hague, or some small European capital; they would be dependent largely upon their own society for mental recreation, and no nation would feel that it would be fair to be obliged to submit to a tribunal in which its adversary had a representative on the bench and it had none; or, even if he were not to sit, to a set of judges who had been associating for four or six years with such representative and had probably had their ideas colored by his remarks. International disputes develop gradually as a rule; they become subjects of general intelligence, such that the members of the court could not remain in ignorance of them, and casual remarks at opportune moments can do much in shaping opinion.

The most competent men, if such competency is to be measured by an intimate experience with affairs such as those that would be drawn into question, could be had to sit in a case the duration of which could be approximated in advance; whereas men, unless they had passed the height of their professional activities, would not alter their careers, separate themselves from their countries and locate

at The Hague to await the uncertain business that would be brought there.

The word "uncertain" is used for the reason, that, even should a court of permanent judges be established, there can be little doubt but that any future Convention would contain the exception, already introduced in The Hague Conventions, permitting, in important cases, the choice of judges in other ways, by which men could be obtained more expert in the matter or in the impartiality of whose sentiments more confidence might be felt; and only minor causes would go to the regular judges.

The selection from the world at large could be adequately safeguarded through the compilation by each nation, or generally, of biographies of the Members of the Court and other persons eligible to sit as arbitrators, giving not only their accomplishments, but the sentiments expressed in their writings and otherwise; so that, when a nation presented a name, each other nation interested in the controversy could judge at once whether it could expect the competency and impartiality that it sought, and guide itself accordingly in retaining or striking off the name from the panel.

On the other hand, this scrutiny into the careers of such men would serve to prompt them to act with the greatest judgment and impartiality of which they were capable, for the world could afford no higher honor to a man than to call him repeatedly to fulfill such a function.

The commission system would also do away with the useless delays in waiting for a case to be reached upon the calendar, for a nation might institute commissions for the hearing of any number of causes at a time.

Arbitration commissions readily permit the presence

among the commissioners of nationals of the countries in dispute and this feature is well worth consideration, before discarding the practice. The functions of the nationals, however, should not include the right to vote, unless the number were such that they could not change the vote of the impartial members, but should be essentially consultative. In this capacity they can be of great use in the deliberations by preventing the oversight of contentions of their countries, which fact becomes obvious when there is no provision for appeal.

When a body of men is given the task of determining a question, it is usually undertaken by a process of elimination; and a plausible leader can often so pass over a point as to quickly dismiss it from further consideration. It may be that its importance becomes most apparant in connection with some point which will come up later, but having been already considered and dismissed, only an interested party will stem the current of impatience at its recall, and persist with it. Could each nation be permitted to have present at all conferences, one or more of its strongest and best informed men on the subject, questions would be apt to be determined only after the last doubt had been set at rest.

The fact, too, that were the judges permanent, the appointments would invariably be made from the foremost men of each nation, which would mean from men who had then reached the height of their careers, and perhaps who had already retired from active life, would signify that in a few years age would begin to weigh upon them and they would cease to keep thoroughly in touch with the conditions of the times. If matters were of great moment, the nations concerned would wish the entire court to be com

posed of the strongest men of the day and often likewise of those most familiar with the general subject of the contention, that were available. This is the chief reason why all of the plans thus far adopted by the Conferences of The Hague have left open the option of choosing judges in other ways.

Inspired by the success in adopting a plan, though still unratified, for the International Prize Court, in 1909, at London, providing that each of the eight great maritime powers should be represented in the court by a member to sit for six years, and the remaining thirty some nations by seven members, to be designated in rotation, efforts are still being made to organize a permanent tribunal to be called the High Court of Justice in which the great powers will have a similar preponderance.

The success of the first undertaking is, however, in no way to be used as a guide in the second. Most of the smaller nations had no navies worthy of the name, hardly expected to have a prize case, and refrained from opposition, not so much because they were indifferent as to what was done, but because they felt that it would be about as impertinent as useless to interfere. When a plan for a court for the determination of differences in general, however, is presented, they are interested and maintain that, large or small, the established unit in international intercourse is an independent nation; and, while the smaller admit that politically they are not equals of the larger, they maintain that there can be no distinction because of size in determining rights; that their rights are as dear to them as are those of a larger nation to it; and that they should be protected by the same rules of impartiality.

Few nations, beyond those that would be preferred,

would accept this plan. If it were thrust upon them, they would probably be obliged to submit to it, but it constitutes one of those matters that will never be settled until rightly settled, and it is unfortunate that it has been introduced when the necessity for it did not exist.

Attention is called to the fact that this idea of inequality in the make-up of the deciding body is a departure from the practice that had been established in international arbitrations. It had never been considered necessary that larger countries should have greater weight in the court. The principle of national equality in judicial matters was furthermore assumed as the only natural one throughout the First Conference of the Hague, and until the Second was well started.

The confidence that the smaller states were enjoying in the fact that the larger ones were recognizing that equality was complete, and constituted one of the fundamental assurances without which a plan involving the surrender by the nations of their customary mode of self-protection could not be realized.

Appeals

Thus far in arbitrations, the necessity of an appellate jurisdiction has not appeared, and there is little reason for its existence. While it is true that courts of higher jurisdiction are not constituted for the purpose of thrashing out the crude masses of litigation that come to the courts of the first instance; that the power of passing upon, and reversing, the decisions of the judges of the lower courts, and of representing a larger territorial jurisdiction, are greater honors, and that the men who are chosen to sit in them are esteemed to be of higher legal attainments, so