The speeches by President Taft, Sir Edward Grey, the Prime Minister, and Mr. Balfour, and the memorable meeting at the Guildhall, have made many converts to a belief in the efficacy of arbitration as a mode of settling difficulties between nations; a belief which has been strengthened by the publication of the terms of the proposed arbitration treaties between Great Britain, France, and the United States. A minority has suddenly become a majority. Doubts, however, still exist in the minds of some whose conversion is most to be desired as to the range of arbitration as a practical mode of settling difficulties; doubts as to its standing the strain likely to be put upon it when really difficult questions are at issue; as to obtaining arbitrators in whom there would be complete trust; as to the possibility of framing rules to meet all cases; uncertainty as to what would happen if there were no rules for the guidance of arbitrators. I cannot hope to remove these doubts and this state of uncertainty. But some facts may be helpful. I make no "millennial assumptions" as to changes in human nature. I merely recall what has been done, and some facts which anyone may verify.

And the first fact to be noted is the remarkable improvement in arbitration, its unmistakably increased efficiency. We have a much better instrument than we had, and we are in a fair way to make it still better. The advocates of arbitration properly insist upon the large number of questions settled by means of it. The figures1 are impressive. That in the course of a century more than a hundred disputes, many of which could formerly have

The figures on this subject necessarily vary. Dr. Darby, M. La Fontaine, Dr. Fried, and MM. de Lapradelle and Politis also have different conceptions of arbitration, and arrive at different totals.

been determined only by war, have been brought to a peaceful close by arbitration; that there exist very many arbitration treaties or treaties containing arbitration clauses which are automatically applied-this is much. It is not the whole story; perhaps not the chief part of it. The entire mode of conducting international arbitrations has singularly improved. The first important international arbitrations in modern times were those carried out under the Jay Treaty, between this country and the United States, in order to determine three groups of troublesome questions, which, if left open, must have brought about war. Let anyone read the accounts of those arbitrations to be found in Mr. Moore's volumes,2 or in the instructive, critical work of M. de Lapradelle and M. Politis, and then turn to the report of the arbitrations recently conducted at The Hague, and the improvement which has taken place will be seen. As now practised, arbitration is calculated to do justice in a sense not true of the earlier arbitrations. In the latter the arbitrators were avowedly advocates, and not very temperate advocates; bound to find for their country; probably acceptable in so far as not impartial. The casting vote was determined by lot; the litigant who chanced to get it must win. Instead of going through the form of arguing, the parties might as well have spun a coin into the air and gone home when it fell. The Commissioners were at variance in regard to elementary matters of procedure-e.g., whether the opinion of the majority was binding; whether the decisions of the English Courts of Appeal could be re-opened by international tribunals. Had they been impartial, they had not always

* History and Digest of International Arbitrations to which the United States has been a party. 6 volumes.

the means of deciding rightly. Often in regard to vital matters the arbitrators were compelled to act upon imperfect evidence. They decided questions of boundaries with the aid of maps based on rude and antiquated surveys. There was no strong, intelligent opinion preventing preposterous pretensions being put forward and stubbornly maintained. I may compare the negotiations between this country and the United States as to the Oregon Question with the proceedings before and during the arbitration as to the Alaska bound

ary in 1903. I may safely say that no advocate of repute in that country or elsewhere would, in these days, commit himself to a doctrine asserted by the American representatives in regard to the Oregon boundary, that a State whose subject had discovered the mouth of a great river was entitled to the entire territory which it drained.' Even those who think that as to one important point the award in the Alaska case gave Canada too little must admit that the question was argued and considered with great care, and that the maps and materials put before the tribunal were the best available. There is but one opinion-shared no less by the representatives of the United States than by those of Great Britain-as to the admirable manner in which the last great international arbitration, that relating to the North American fisheries, was conducted under the presidency of Professor Lammasch.

rious question, except as to the amount which Great Britain ought to pay; and this (if I may judge from a conversation which I had with him in his own house) he thought we need not much care about-Vous êtes riches, très riches,' he said. . M. Staempfli went invariably with Mr. Adams. . . He approached every question with a strong animus in favor of the American view. . . The course which they (the arbitrators) actually took was to consider and state their opinions upon the questions first (with closed doors and in the absence of counsel), and to hear arguments afterwards.... After what had passed in the previous consultations of the tribunal, it was all lost labor; not Cicero or Demosthenes, Vattel or Wheaton, could, under such circumstances, have produced any effect" (Memorials, I. 255 et seq.).

I am not at liberty to mention facts within my knowledge as to the conduct of some arbitrators in proceedings of a later date. Enough to say that it was not in accordance with what we are accustomed to understand by judicial aloofness, and that it would be impossible now.

A further improvement is to be noted; the existing treaties of arbitration are prepared with greater care, the precise questions to be determined are more clearly defined than in the past. No one could with any plausibility say of a modern arbitration treaty or submission what Lord Westbury said of the Washington Treaty: "I think three boys of ten years old might have succeeded in making a more intelligible one." These strictures were not wholly undeserved. Scarcely was the ink dry when the representatives of the two parties were hopelessly at variance as to the limits of the subject-matter of the dispute and the meaning of the rules which the tribunal was to apply.

Hansard, May 31st, 1872. In a letter to Reeve (Memoirs, II., 204) Lord Westbury mentions his efforts to "awaken in the minds

By way of contrast, I may refer to the seven questions submitted to the arbitrators in the North American Fisheries dispute; the issues for the tribunal to determine were sharply defined.

There is, too, a great improvement in the preparation of the "cases" submitted by Governments to the tribunals. Compare the statements in some of the early arbitrations in last century with, say, the statement in the recent arbitration as to the North Atlantic Fisheries, and it will be seen that there is a remarkable improvement; the trial is preceded by long and careful investigations; some of the "cases" have been studies of high scientific value. Gradually, too, a well-recognized form of procedure has been evolved.

In the

last century it was customary to nominate sovereigns as umpires. They had the merit of being impartial; but, as might be expected, they were often reticent as to their reasons, and their decisions did not advance or expand international law. M. de Lapradelle and M. Politis point out that six arbitrations decided by sovereigns between 1831 and 1852 involved the most delicate questions of law-that of the juridical nature of occupatio bellica; that of the powers of an arbitrator in the matter of disputed territory; that of blockade; the effects of a declaration of war as to the expulsion of subjects and the transformation from sequestration into confiscation; that of the responsibility of a neutral in case of acts of aggression on the part of a belligerent in neutral waters:

Mais ces théories de droit, si intéressantes, sont, la première écartée, la seconde incomprise, la troisième entrevue de loin, la quatrième et la cinquième mal saisies, la sixième prise à rebours. Dans ces affaires, bien souvent, la disof leading men a full sense of its (the treaty's) folly and of the calamitous consequences that would be sure to follow from such an act of foolish, gratuitous submission; but I made no impression; not even as to the absurdity of introducing new and ill-considered rules and giving them a retrospect

cussion diplomatique, que nous n'avons eu garde de négliger, projette des lumières que la sentence n'apporte pas. La matière est fort belle; mais l'arbitrage par souverain est trop précieux et fragile, trop dédaigneux et trop délicat pour l'attaquer par les trois seuls moyens qui permettent de s'en rendre mâitre: l'étude attentive des précédents, l'examen des conséquences logiques, et les recherches des effets pratiques.

Not only are arbitrations better conducted than they were, with the result that the awards are generally more satisfactory; they are carried out by and receive effect at the hands of the defeated party, and are fully and loyally carried out; and, I may add, to a degree unknown in the case of private arbitrations. With some experience of the latter, I cannot help remarking the difference in favor of the former. The latter may prove useless to the winner. The defeated party often sets to work to worry the victor by legal proceedings; by applications to the Courts to remit the award to the arbitrator or to set it aside on the ground of some slip or misconduct on his part. If these tactics fail, it may happen that the defeated party becomes bankrupt, or leaves the country so as to elude payment. No such disaster awaits the successful litigant in international arbitration; the defeated State pays up; the instances of refusal to give effect to international awards are so rare as to be scarcely worth considering.

To complete the contrast, I may add that it is still thought right and proper in private arbitrations for each of two arbitrators to act virtually as an advocate for the person who nominated him, complete impartiality being expected only in the umpire. I may be pardoned for recalling a slight personal incident. Many years ago I had been ive operation." Answering Lord Westbury, Reeve remarks "the result is that the fate and honor of this country are placed in the hands of a Swiss or a Brazilian referee, neither of whom knows a word of the English language." See remarks of Lord Cairns, Hansard June 4th, 1872.

nominated as one of two arbitrators to determine a dispute; finding that the main contention of the party who had appointed me was obviously wrong, I decided at once without calling in the umpire. I recall the bitter disappointment expressed at my not having been the advocate through thick and thin. No such mischievous misconception now exists as to international arbitrations. In the Alaska arbitration, in regard to a capital matter, Lord Alverstone, the English representative, took the same view as the United States representatives; an example of impartiality which it would be difficult to find in early arbitrations.

One point I would emphasize; it is a ground for believing that the popularity of arbitration is not a passing phase. It is not an accident that arbitration has in these days become more and more common. It was not an accident that permanent embassies became common in the sixteenth century; that treaties of commerce began to increase in the eighteenth and nineteenth centuries; that the laws of neutrality were chiefly evolved in modern times. These things came about from pressing necessities; and the frequent employment of arbitration in private and international disputes is in like manner part of a living process. With the increasing number of points of contact between nations are multiplied the questions which must be somehow solved-if not by diplomacy, then by arbitration. There is a deeper cause for its prevalence: there is not only the growth of the pacific spirit but the disbelief in war as a lasting settlement and a sense of its futility and brutality. What is of even greater moment, though less noticed, is the diminution, for a time at all events, of the causes of deep animosity and ill-feeling between nations. They have their conflicting ambitions; they are keen com

petitors at many points. But (with one or two exceptions) there do not exist between States those feelings permitting of no compromise which existed while Austria ruled over Italy, while the Christian States formed, or being formed, out of the Turkish Empire had a precarious existence, and while the unsatisfied aspirations of nationalities took the form of demands by one State upon another. The aspirations which nationalities denied full recognition will not consent to forego rarely give rise to inter-State questions; they are intra-State questions-questions, for example, between the Finns and the Caucasians and the Russian Government; between the Macedonians and the Turkish. The world is restless, but not as it was when Louis XIV. or Napoleon was supreme, or when the Holy Alliance dominated Europe, or as things were before 1848, or before the Berlin Treaty in 1878. In an age of conquest, or Raubwirtschaft, there is little room for arbitration; and if I thought that we were on the eve of a struggle for a fresh division of the earth's surface, I should not be hopeful as to the future of arbitration. Some of the most menacing causes of unrest

the conflicts and rivalries of classes --are internal; men's friends may be abroad, their enemies at home; the areas of discontent do not coincide with national boundaries. Such sources of trouble give rise as often to union or sympathy between the subjects of different States as to ill-feeling. Out of the chief domestic troubles of a State may grow international union of classes. Economic discord at home may make for unity of aims between alien populations, and consequently, though indirectly, for readiness to submit their differences to the decision of an impartial tribunal.

I come to what is the great stumbling-block in the way of acceptance of arbitration in the comprehensive terms

which President Taft originally proposed or in the modified form of the draft treaty. Vital interests on questions affecting the honor of a nation cannot, it is said, be referred to arbitration. The oldest law of private arbitration declared invalid submissions as to the status of a freeman or questions involving infamia; and so should it be with nations. There may be a sense in which this is true, but it is not the sense in which the exclusion from arbitration of certain questions is urged. States cannot, any more than individuals, submit to extinction because an arbitrator's award decrees it. Nor can they, any more than individuals, submit to do that which is wrong because an arbitrator orders it. That goes without saying; but that is not what is meant by those who would except from arbitration all vital questions, or questions affecting the honor of a country. It is not so easy to say what they do mean. To Montesquieu, who made so much of honor in his political philosophy, it is "le préjugé de chaque personne et de chaque condition"; preferences and distinctions created by classes and nations; a set of supreme, self-imposed duties; a code which says noblesse oblige, but which also claims to be a law unto itself. It is a code which in private life declares killing no murder, upholds against the law of the land duelling, and justifies in certain courts perjury; a code which, as Montesquieu justly says, is “naturellement sujet à des bizarreries" (III. Cap. X.). Those who use honor in this sense fight the same battle as those who would eliminate from arbitration questions of honor. Both resist the entrance of law into a region in which it was long a stranger. Both claim to be governed by a code of their ownor to be above any code. Long ago in civilized countries was fought out the question of the supremacy of law in the internal lives of nations. Much

the same contest now goes on between nations. In some circumstances municipal law may be justifiably broken in obedience to a higher law. In the: ory there may be like conflicts between a nation's duty to maintain peace and its duty to guard its honor. In fact, the appeal to honor is generally an appeal to the lower law.

It is worth while noting how many questions in which it was said national honor was involved have in fact been successfully settled by arbitration or by like means. The opposition to the arbitrations conducted under the Jay, Treaty came from those who thought that the matters at issue affected the honor of the two countries. In the long dispute as to the Oregon boundary there was the same talk of honor. President Polk declared that "he did not believe the territorial rights of the nation to be a subject for arbitration." "All Oregon or none." "Fifty-four forty, or fight," was the popular cry. In the end the forty-ninth parallel was accepted with no loss of honor and dignity. The sticklers for the honor of this country pressed Lord Salisbury to meet President Cleveland's demand -for such it was-that England should submit to arbitration the dispute between her and Venezuela as to the boundary line of British Guiana. Lord Salisbury, who understood honor as well as any statesman, did not yield to this pressure. The matter was re-, ferred to arbitration, and resulted in a decision, on the whole, in favor of England. A famous American statesman once declared that he would as soon cut off his right hand, as agree to the contention of England with respect to the North American fisheries; a contention which his country lately submitted to The Hague Tribunal, with no loss of prestige or honor. In truth all the great arbitrations of the past, certainly the most successful, have turned upon questions which the liti