To those who can appreciate these facts there is no occasion for discouragement in the suspicious att.i.tude manifested by the powers toward any definite step in the direction of unrestricted arbitration, apparently so inconsistent with their general pacific professions.

"Rapid growth and quickly accomplished reforms are necessarily unsound, incomplete, and disappointing."[5]

[5] F. H. Giddings, "The Elements of Sociology."

With the truth of these deductions granted, it would seem safe to a.s.sume that the inst.i.tutions for the settlement of international difficulties will develop in much the same way as have the inst.i.tutions for the settlement of difficulties between individuals.

It should be profitable, therefore, to compare the present growth of arbitration with the evolution and decay of the various modes of trial as the idea of judicial settlement diffused itself through the mind of the English people causing established forms to give way to something better. Dispensing with the blood feud, which hardly deserves the name of trial, the oldest form of such inst.i.tution was trial by ordeal which, according to Thayer in his "Evidence at the Common Law," seems to have been "indigenous with the human creature in the earliest stages of his development." This form gradually fell into disuse before the more rational form of compurgation introduced into Teutonic courts in the fifth century. In 1215 it was formally abolished.

Compurgation was abolished in 1440 as its inferiority to trial by witnesses became fully recognized. In the latter form, inst.i.tuted early in the ninth century, when the witnesses disagreed the judicial talent of the day conceived of no other method of decision than to fight it out. Thus we have trial by witnesses and trial by battle developing concurrently, although they were recognized as distinct forms. After two centuries of effort to abolish it, trial by battle was made illegal in 1833, the last case recorded as being so decided occurring in 1835. Out of the trial by witnesses has evolved our modern trial by jury, at first limited to certain unimportant cases, then having its sphere extended as its superiority became more evident, until finally it superseded all other forms and to-day is the accepted mode of settling even questions of honor.

The growth and extension of international arbitration has not been dissimilar to this. Six cases were arbitrated in the eighteenth century, four hundred and seventy-one in the nineteenth, while more than one hundred and fifty cases have been arbitrated during the first thirteen years of the twentieth century. Between the First and Second Hague Conferences only four uses were submitted to the Permanent Court of Arbitration. Since the Second Conference, notwithstanding the unsatisfactory disposition of the Venezuelan affair, eight cases have been tried, a ninth is pending, a tenth will soon be docketed if the United States is not to act the hypocrite in her international relations by refusing to submit to England's request to arbitrate the question as to whether or no we exempt our coastwise vessels from toll duty through the Panama Ca.n.a.l. Defects have been detected in the Permanent Court of Arbitration and we are well on the way toward a better court. Representatives of only twenty-six nations took part in the deliberations of the First Hague Conference; representatives of forty-four nations took part in the deliberations of the Second Hague Conference. Wars of aggression and conquest, though not formally outlawed, are effectively so, and arbitration for the recovery of contract debts is now practically obligatory. As time pa.s.ses and its feasibility gains credence, arbitration, like the jury trial, will extend its sphere of usefulness until it too settles questions of honor. Nor need we imply from this a.n.a.logy that it will take such an age to accomplish this result. Because of the increased mobility of society, resulting from the greater like-mindedness and consciousness of kind incident to our modern communities of interests and systems of communication, and from our greater susceptibility to rational rather than traditional appeals, a reform can be wrought more easily and the people can adjust themselves to the change far more readily than several centuries ago.

Bearing in mind, then, our attempted a.n.a.lysis of counter social forces at work, our deductions from this a.n.a.lysis and the foregoing a.n.a.logy the significance of which grows out of the truth of these deductions, let us conclude with a suggestion as to what the next Hague Conference should attempt. It should, of course, like the former Conferences, extract as many teeth as possible from war. As to improving our arbitration facilities, its first task evidently should be to determine some method whereby members of the Judicial Arbitration Court shall be apportioned and selected. If, as has been suggested, it is decided to use the same scheme of apportionment as that for the International Court of Prize, the provision that each party to a case shall have a representative on the bench should be changed so as to provide that neither party shall have a representative on the bench.

If this court is not to be a misnomer like the Permanent Court of Arbitration, its rulings must be in accord with the principles of jurisprudence rather than with the spirit of compromise such a provision would tend to produce. With this accomplished and the Judicial Court of Arbitration put in practical working order "of free and easy access" to the powers, it may be doubted whether anything further can be done. If the powers can be made to agree to submit to the court all cases growing out of the disputed interpretation of treaties, a great advance will have been made, but it is doubtful whether the present state of public opinion would indorse such a progressive step. These international legislators can do no more than provide channels through which the spirit of international peace can exercise itself as it expands, and the Judicial Court of Arbitration, at the optional use of the nations, conforms admirably to this requirement. The delegates should, therefore, avoid the universal tendency of such bodies to legislate too much. None of these Hague Conferences can alone accomplish the ultimate purpose of the so-called dreamers, but each Conference may be a landmark on the upward journey toward that consummation, antic.i.p.ated by Utopians from the earliest times, foretold by prophets from Micah and Isaiah to Robert Burns and Tennyson, labored for by practical statesmen from Hugo Grotius to William H. Taft, when each man shall be a native of his state and a citizen of the world.

AUTHORITIES

For acts and conventions of Hague Conferences: "Texts of the Peace Conferences" by James Brown Scott.

For data concerning proposed treaty with England: Text of treaty and majority and minority reports of Senate Committee on Foreign Relations.

For statistics of arbitration treaties: "Revised List of Arbitration Treaties," compiled by Denys P.

Myers.

For development of trial by jury: "Evidence at the Common Law" by Thayer.