“Barbarians in ancient times settled their differences with whatever tools came ready to hand. Cultured, refined, and scientific pagans to-day do nothing more, nothing less. Must this continue for all time? Yesterday, hundreds were pleading for saner methods; to-day, thousands plead; to-morrow, millions will demand a better way of settling international differences. What is wanted is some way not based on brute force, but upon the principles of mutual trust and good-will.”

Prior to the Christian era, but little effort was made to avoid war. The normal attitude of Rome, Greece, and of Carthage was one of continuous preparation for war. The Greek City-States did, however, have an organized body empowered to arbitrate differences between the Hellenic peoples.

In the fourteenth, fifteenth and seventeenth centuries, serious efforts were made to devise and establish means for the avoidance of war, but success crowned none of the efforts.

It was after the Jay Treaty between Great Britain and the United States that the settling of international questions by arbitration came into vogue. The many cases successfully and satisfactorily settled between the two Anglo-Saxon nations have doubtless had their influence for good upon other races and states.

Notwithstanding the great advance made by the partial adoption of arbitration, as a mode of settling international controversies—wise men feel that another step forward should be taken through the establishment of a Court of Justice, a body which will ascertain facts and apply rules of law instead of resorting to negotiation or expediency in the familiar manner of Courts of Arbitration.

The growth of this desire is manifested in the records of the two Hague Conferences. In 1899 it was but necessary to suggest the creation of a World Court to have it promptly put aside as impracticable. After a lapse of but eight years the 1907 Conference adopted the following: “The Conference recommends to the signatory powers the adoption of the project hereunto annexed of a Convention for the establishment of a Court of Arbitral Justice and its putting in effect, as soon as an accord shall be reached upon the choice of the Judges and the Constitution of the Court.” This received the unanimous support of all the Conferees.

The happy result obtained is largely attributed to the work of the American delegation in its effort to carry out the instruction of Secretary of State, Elihu Root, which instruction reads as follows: “It should be your great effort to bring about in the second Hague Conference a development of the Hague Tribunal into a permanent tribunal, composed of judges, who are judicial officers and nothing else, 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 1907 Hague Conference declared that “International Arbitration has for its object the settlement of disputes between states by judges of their own choice, and on the basis of respect for law.” That mode of obtaining the personnel of an Arbitration Court may be eminently proper, as “Arbitrators only too often act as negotiators and not as judges, trying a cause on its merits.” But causes that are justiciable should not be tried before a body of judges, especially chosen by the litigants.

Under the rules and constitutions agreed upon in the Hague Convention, there is no stipulation as to the number of signatories required, or of states that shall adhere, in order to make the plan available.

To-day, under that Convention, any number of the participants, who may find themselves in accord as to the number of judges to be chosen and the manner of their selection, may complete the unfinished work of the Conference by establishing a workable Court at The Hague. While the Hague Conference failed to agree upon the number of Judges that should constitute the International Court—yet fifteen appeared to be the favorite number in the minds of the Conferees.

The difficulties encountered by the Conference in attempting to constitute a Court were great. Many plans were submitted. The delegation from our own country presented no less than ten distinct plans, any one of which the delegation would have supported rather than have the Conference fail in completing the establishing of a Court.

One of the plans submitted to the Conference provided that each state should name one judge. This would have made an unwieldy body—“a judicial convention instead of a judicial court,” as was suggested by an American delegate. Another plan submitted provided that each state should designate an elector from the permanent court of arbitration, and that these forty-five electors should select fifteen judges, to constitute the court. This seems fair, and there can be but little doubt that a court so chosen would have been a competent body. Article XV of the Convention establishing the International Prize Court, provides, that each of the eight nations, generally known as the world powers, shall always be represented, or in the language of the Convention, “are always summoned to sit.” While Germany, Austria-Hungary, Italy, Russia, France, Great Britain, United States and Japan are the great world powers, they are not the eight powers with the largest commerce. Belgium exceeds three and the Netherlands exceed four of the world powers in their respective aggregates of commerce. The majority of questions or controversies brought before a judicial court will doubtless arise through commercial channels.

The experience of the United States may be cited as an encouragement for small states to trust the other and more powerful states and to join with them in the selection of fifteen judges. The sections or states from which members of the United States Supreme Court are appointed seem to be a matter of absolute indifference to the American public. Forty-eight states represented by nine judges. Each of these forty-eight states is about as near a sovereign entity as are many of the states represented in the Hague Conference.

It is confidently believed that the several nations would strive with each other to give to an International Court their best men. This would be especially true of those states, whose limited population and restricted commerce would not alone entitle them to a national on the bench.

The necessity for an International Court is so obvious that it need not be discussed. The delegates of forty-five states would not have supported it at The Hague Conference, if there had not been a great desire, and a growing demand for it. The decisions of the Court in causes brought before it will not exhaust all its usefulness. The laws which largely govern the Anglo-Saxon race have grown out of customs sanctioned by Judicial decisions. It may be surmised that not a generation will have passed after the inauguration of an International Court, before International Law will have assumed a stability to which it has not hitherto attained. If, at some future Hague Conference, a convention shall be voted prohibiting belligerents from committing—in reprisal—acts which are otherwise prohibited by international agreement, it will be a long step forward, and will remove a pretext for the violation of international law. At present, almost any wrong may be legally committed by belligerents under the pretext of reprisal.

That the civilized world should desire the Court, and that the delegates from all the nations at an International Conference should unanimously support the effort to create the Court—are encouragements for us all to believe that a plan can be evolved that will meet the emergency temporarily, even if far from perfection. Quoting, in substance, a remark of a great statesman, “Even if one’s hopes may not be realized at once, that is no reason why we should not press forward in the direction in which we see possible success. What is impossible to-day may become possible to-morrow.”