them. But the Conference has done little except afford topics for mutual recrimination between the States engaged in the recent war, to whom it has been easy and comforting to be able from time to time to accuse their enemies of breaches of the several Hague Conventions. Events have shown that such arrangements as were the only outcome of the last Hague Conference are barriers worthless against any serious impulse towards war. We must begin in another way.

It is useless to set up any system of tribunals of arbitration, however excellent and complete, if States inclined to war can put them aside. History shows that this was not the way in which internal peace and good order were enforced between the citizens of a country. The first step in civilisation is the regulation, the second and more effective step is the prohibition, of private war. When this is carried out, men are forced to have recourse to the tribunals. The tribunals must of course be efficient and trustworthy, or else men will revert to private war. But the fact that the law is open and men can implead one another is not enough, unless men are shown that this is the only way in which they will be allowed to get redress. We must, therefore, have first a prohibition of war, with effective sanction to enforce the prohibition; and secondly, side by side, arrangements by which states and nations forbidden to assert their rights, or to redress their wrongs by war, shall nevertheless obtain appropriate relief. In homely language the defect of past schemes for International Arbitration is that they put the cart before the horse.

The first provision of the treaty should be to prohibit war. No fighting in the street, please. The international police constable, whoever he may be, will say: 'Settle your differences some other way, we do not allow fighting.' It is a great merit of Mr Jacobs' treatise, 'Neutrality versus Justice,' as it is of Prof. Pollard's Historical Argument,' that this provision is placed first, and that these authors insist that it should be firmly enforced.

But, secondly, to make this enforcement feasible, there must be a safety valve, and corresponding devices for settling quarrels; otherwise, in spite of all the prohibitions in the world and all the forces behind them, States will fight. There must be some body or bodies to

decide and determine international disputes, whether Arbitrators, or a Court, or a Council of Nations, or all combined; and this international organ must (1) be ready and willing to act; (2) act justly; (3) have at its back moral and material forces. Civil experience shows that you may have a hierarchy of Courts of Justice; but, if they are procrastinating, unjust, or impotent, men will put them aside and return to private war. You will have Judge Lynch or the Ku-Klux Clan or the Mafia.

But it is not easy to establish a real International Court or Tribunal. Hitherto no one has ventured to do so. The schemes of the Hague Conferences, even of the second, fall far short of it. The essence of an efficient Tribunal or Court of Justice is that it is there, always in existence, not dependent upon the will of suitors or the agreement of disputants, but established from above, open to receive a complaint, and prepared to require the person complained of to come and answer the complaint, or defend himself against the charge.

The Hague Conferences never got so far as that; none of the International Treaties of Arbitration has got so far. The last Hague Conference purported indeed to establish a Court; but the so-called Court is only an office or bureau, to which disputant States anxious to come to terms, and wanting to find an independent body to settle their disputes, can have recourse for advice and guidance as to the procedure of arbitration, and in which they will find a panel of highly distinguished men from among whom they can choose their arbitrators. But, if one of the disputant States does not want to go to arbitration, nothing is done. The last Conference did indeed provide some machinery by which the disputants might be compulsorily sent to arbitration; but, even so, each disputant was to name an arbitrator, and the unwilling State could stop the whole proceeding by the simple process of not naming its arbitrator.

Moreover, there is a more subtle difficulty; the disputants have to determine what the dispute is about, what is the real question which the arbitrators are to decide. Now every lawyer knows that in many cases the statement of the question of itself determines the answer, and that often half the discussion turns upon the point, What is the question to be discussed? There

never has been any provision, either in the Hague Conventions, or in the most advanced international treaties, for settling this. What is wanted and what alone will supply a safety valve is a tribunal already made ready to hand, to which a suitor can come and make his complaint, as a plaintiff can take out a writ from a Court of Justice, and have the defendant, willingly or unwillingly, brought in to answer it.

Under the protection of such a system of jurisprudence and side by side with forensic litigation there exists in most civilised countries a practice of referring disputes to arbitrators, which in many cases suits the parties better than having recourse to the Courts; and so, in international disputes, there may be-and it is highly desirable that there should be-provision for arbitration, when the disputant States can agree upon the question to be decided and upon the composition of the arbitral tribunal. But beyond this, and in the background, there must be some permanent and self-sufficient tribunal to which, if the States cannot agree to arbitration, any disputant State may insist on applying, and which will take cognizance of the cause even against the will of one of the parties.

But, if it is difficult to find arbitrators to whom States will willingly commit their cause for decision, how much more difficult and delicate will it be to establish judges who will act without the consent of parties? The League, however, requires a tribunal which will not derive its origin from the consent of parties but will sit and adjudicate by virtue of its own inherent right, and will command obedience by its moral strength and material backing. How is this tribunal to be formed?

Most writers propose two tribunals, some three, some even four. Those who propose two suggest a Court to decide such matters as Municipal Courts decide, i.e. questions of law such as the construction of treaties or the application of established rules of International Law, and questions of fact such as whether the Russian fleet in the North Sea had been attacked by Japanese torpedoboats before it fired on the English fishing fleet. All other matters-questions of high policy, questions of national honour, and similar matters-they would leave to a Conference of the Powers party to the League.

Let us take the proposed Court first. Many writers would give each of the disputants a representative upon it. This gives some protection to the more unpopular State, but, on the other hand, it tends to detract from the judicial nature of the proceeding, and to lead to compromise and negotiation rather than decision. Chief Justice Beichmann of Norway, a representative at the last Hague Conference and on the panel of the Hague Court, advocates the presence of representatives of the disputant States, on the very ground that most international matters are incapable of strict judicial decision, and are rather matters of negotiation.

Next, how are the other members of the Court to be appointed? It is generally conceived that the Court would be of unwieldy size if each State party to the League had a representative upon it; but all writers upon the subject agree that each of the Great Powers (unless indeed it is a party to the dispute) should be represented upon the Court, and that the smaller States should have some representation less than the collective representation of the Great Powers, according to some ingenious rota. The question at once arises, Who will be the Great Powers of the future? If Austria-Hungary is to be broken up into, say, three or four States, Russia into several more, would any one of these component parts be of as much world-wide importance as Argentina or Brazil or China is, or will be in a few years' time? Moreover, are the lesser States likely to concede any such superiority to the Great Powers? The experience of the representatives at the last Hague Conference points to a different conclusion. If, however, the Great Powers are to be still reckoned as eight, and the representation of the minor States is to be less than eight, this representation of the minor States will provide an element extremely difficult to reckon upon.

The rota may chance to supply for the occasion a body of dependent States likely to follow one particular Great Power. If the dispute should chance to be one between a European nation and the United States, the representative of the latter may find himself upon the tribunal with a backing of four or five of the States of Central and Southern America, or he may find that the minor States on the particular panel come from Europe

and Asia. In either case, there is likely to be a prejudice against the finding of the Court. If, on the other hand, contrary to the view of all the writers on the subject, the Great Powers are not to be represented on the Court as of right, the Court on some particular occasion may be so largely composed of minor nations as to lack authority.

To all this it may be replied that this is a Court; that its members are judges sworn to decide according to right; and that they will so decide. One may hope that this would be the case, but the strain upon judicial impartiality is very great. Great States have their satellites, or, at any rate, will be supposed to have them. And it must always be remembered that it is not only necessary that the judges should be impartial; they must also be believed to be impartial; and in the event of a serious contest between two powerful States, it would be a matter of pure luck if the constitution of the Court were such as to command respect for its decision from the people of the State which has failed in the case.

Since the greater matters are, according to these schemes, not to be submitted to a Court, but to a Conference of the Powers, would it not be better to dispense with the Court altogether and have only a Conference or Council of the Powers, when the parties cannot agree to arbitration? The greater the number of tribunals, the less importance and weight will be attached to them. Two, three, or four tribunals disposing of different aspects of international questions are not likely to have as much weight, nor will it be as easy to find members to compose them, as for one great tribunal to which all points can be referred. It would seem better to encourage disputant States to go to arbitration, making their own Tribunals of Arbitration whenever possible, and to leave it to the Conference or Council of the States party to the League to be the one tribunal to which recourse must be had, if the parties cannot agree to arbitration.

When, however, we come to consider the Council, some of the same difficulties recur. Are the Great Powers to have more votes than the smaller ones? Should, at least, the plan be adopted which has been adopted in International Postal and Telegraphic Conventions, that those States which have colonies or