n 
 
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 L'BRAR 
 
 Ju&irial &?ttlraent 
 
 of Snternaitnnal Stsputca 
 
 ©Ijc Smportmtrr of iDufrtrial 
 
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 Eltlju Snot 
 
 Unttril Stafra Senator from Stem tjorh 
 
 FEBRUARY, 1911, No. 3 
 
 Published Quarterly by American Society for Judicial Settlement 
 of International Disputes. 
 
 Salttmnre, U. §. A. 
 
 Entered a3 sec 
 the Postoffice at 
 July 16, 189E 
 
 KZ 
 
 4850 
 
 .J835 
 
 no.3 
 
 ily 11, 1910, at 
 der the Act o i 
 
®h? important? of iubxnal ^rttlrmrnt 
 iElitju Snot 
 
 We all of us agree, and a very large part of 
 the world agrees, that there ought to be an 
 end to war, that it is brutal, wasteful and 
 stupid. We have been talking about it for a 
 great many years. The volume of sound has 
 swelled and grown into a great chorus of uni- 
 versal acclaim for the principles of peace with 
 justice. 
 
 But all great movements have a definite 
 development. They pass from stage to stage. 
 The declaration of principles in the beginning 
 is but the first step, and the method of devel- 
 opment is from the general to the particular, 
 from the theoretical to the practical, from the 
 proposal to the accomplishment. 
 
 Now, the movement for peace, for the set- 
 tlement of the disputes of mankind by peace- 
 
 3 
 
ful means, is, it seems to me, passing from 
 one stage to another in these wonderful 
 years in which we live. Having accumulated 
 enough momentum, by means of the mis- 
 sionary work that has been done, by means 
 of the propaganda which has been prosecuted, 
 we are beginning now to pass into the stage 
 of careful, thoughtful, definite, certain inquiry 
 into the specific causes of war and the specific 
 remedies to be applied. So only can progress 
 be made towards a practical conclusion. 
 
 The organization of this Society is one of 
 the great steps forward in this second stage 
 of development of the world-wide peace move- 
 ment. 
 
 The causes of war may be roughly, and of 
 course superficially and generally distributed 
 into three categories. First, there are the 
 real differences between nations as to their 
 respective rights. One nation claims terri- 
 tory and another claims the same territory. 
 One nation claims the right to trade in a 
 particular way, at a particular place, and 
 another nation claims an exclusive right. 
 There are a myriad ways in which nations 
 may come into dispute regarding real rights, 
 
 4 
 
each nation believing that its side of the con- 
 troversy is based upon justice. 
 
 A second category is what I might call that 
 of policy. The policy of a country may be to 
 push its trade, to acquire territory, to obtain 
 a dominant influence, to insist upon a certain 
 course of action by other countries for its own 
 protection asserting that a different course of 
 conduct would be dangerous to its safety. 
 All those questions of policy, however, are to 
 a considerable degree, and very frequently, 
 dependent upon the determination of certain 
 facts and the decision of certain questions of 
 international law. 
 
 A third category of causes of war may be 
 described as being matters of feeling. Deep 
 and bitter feeling is often awakened between 
 peoples of different countries. We have got 
 away from the time when the pique or whim 
 of an individual monarch may plunge his sub- 
 jects into a bloody and devastating war, but 
 we remain in the time when great masses of 
 people in different countries may become in- 
 dignant over some slight or insult, or a course 
 of conduct which they deem to be injurious 
 and unfair. These matters of feeling, which 
 
 5 
 
are the most dangerous of all causes of war 
 because they make the peoples of two dif- 
 ferent countries want to fight, — these matters 
 of feeling ordinarily depend in the beginning 
 upon different views regarding the specific 
 rights of the two countries. 
 
 Now, as to the first kind of causes of war, 
 the real controversies about rights, it is plain 
 that they ought to be decided, and that all 
 war based upon them may easily be obviated 
 by having them decided, in accordance with 
 the rules of right reason. 
 
 As to the two other classes of reasons for 
 war, it is plain that the little beginnings out 
 of which they arise, the excuses upon which 
 they depend, may also be disposed of if taken 
 in time, and disposed of by reason and kindly 
 consideration. So that while it does not 
 cover the whole ground, while it does not by 
 any means solve the whole question, yet at 
 the bottom of all the attempts practically to 
 dispose of the causes of war, lies the peace- 
 able decision of questions of fact and law in 
 accordance with the rules of justice. 
 
 Now we have been for a good many years 
 more and more seeking to accomplish that by 
 
 6 
 
means of arbitration, and the machinery for 
 arbitration has been carefully devised and 
 agreed upon by the nations of the earth at 
 the two successive Hague conferences, so 
 that it is comparatively easy for nations to 
 have recourse to that method of settling their 
 disputes. 
 
 But there are some difficulties about arbi- 
 tration, practical difficulties in the way of 
 settling questions. I have said many times 
 and in many places that I do not think the 
 difficulty that stands in the way of arbitra- 
 tion today is an unwillingness on the part of 
 the civilized nations of the earth to submit 
 their disputes to impartial decisions. I think 
 the difficulty is a doubt on the part of civilized 
 nations as to getting an impartial decision. 
 And that doubt arises from some character- 
 istics of arbitral tribunals which are very dif- 
 ficult to avoid. 
 
 In the first place, these tribunals are ordi- 
 narily made up by selecting publicists, men of 
 public affairs, great civil servants, members 
 of the foreign offices, men trained to di- 
 plomacy; and the inevitable tendency is, and 
 the result often has been, in the majority of 
 
 7 
 
cases has been, that the arbitral tribunal 
 simply substitutes itself for the negotiators of 
 the two parties, and negotiates a settlement. 
 Well, that is quite a different thing from sub- 
 mitting your views of right and wrong, your 
 views of the facts and the law on which you 
 base your claims to right, to the decision of a 
 tribunal, of a court. It is merely handing 
 over your interests to somebody to negotiate 
 for you; and there is a very widespread re- 
 luctance to do that in regard to many cases; 
 and the nearer the question at issue ap- 
 proaches the verge of the field of policy, the 
 stronger the objection to doing that. 
 
 Another difficulty is that the arbitral tri- 
 bunals, of course being made up largely of 
 members from other countries, the real de- 
 cision ordinarily being made by arbiters who 
 come from other countries and not from 
 the countries concerned, questions have to be 
 presented to men trained under different sys- 
 tems of law, with different ways of thinking 
 and of looking at matters. There is a very 
 wide difference between the way in which a 
 civil lawyer and a common-law lawyer will 
 approach a subject, and it is sometimes pretty 
 
 8 
 
hard for them to understand each other even 
 though they speak the same language, while 
 if they speak different languages it is still 
 more difficult. 
 
 Another difficulty is that a large part of the 
 rules of international law are still quite vague 
 and undetermined, and upon many of them, 
 and especially upon those out of which contro- 
 versy is most likely to arise, different coun- 
 tries take different views as to what the law 
 is and ought to be. And no one can tell how 
 one of these extemporized tribunals, picked 
 at haphazard, or upon the best information 
 the negotiators of two countries can get, — no 
 one can tell what views they are going to 
 take about questions of international law, or 
 how they are going to approach subjects and 
 deal with them. 
 
 Now, it has seemed to me very clear that 
 in view of these practical difficulties standing 
 in the way of our present system of arbitra- 
 tion, the next step by which the system of 
 peaceable settlement of international disputes 
 can be advanced, the pathway along which it 
 can be pressed forward to universal accept- 
 ance and use, is to substitute for the kind of 
 
 9 
 
arbitration we have now, in which the arbi- 
 trators proceed according to their ideas of 
 diplomatic obligation, real courts where 
 judges, acting under the sanctity of the ju- 
 dicial oath, pass upon the rights of countries, 
 as judges pass upon the rights of individuals, 
 in accordance with the facts as found and the 
 law as established. With such tribunals, 
 which are continuous, and composed of judges 
 who make it their life business, you will soon 
 develop a bench composed of men who have 
 become familiar with the ways in which the 
 people of every country do their business and 
 do their thinking, and you will have a gradual 
 growth of definite rules, of fixed interpreta- 
 tion, and of established precedents, according 
 to which you may know your case will be de- 
 cided. It is with that view that I have felt 
 grateful to the gentlemen who have been giv- 
 ing their time and efforts to the organization 
 and establishment of this Society. I am sure 
 that it is a step along the scientific and practi- 
 cal method of putting into operation all the 
 principles that we have been preaching and 
 listening to for so many years. It is practi- 
 cal, and I believe it will be effective. 
 
 10 
 
There is a great deal of work for the So- 
 ciety to do. Our people here in the United 
 States are probably more ready to assent to 
 such a view as this than the people of any 
 other country in the world, because we have 
 been long accustomed to the existence of a 
 great tribunal, a part of whose duty it is to 
 sit in judgment upon the question whether 
 the governments of the sovereign States and 
 the government of our own nation, in their 
 acts, conform to the great principles of justice 
 and right conduct embodied in our Constitu- 
 tion. That arrangement, of embodying the 
 eternal principles of justice in a written instru- 
 ment, investing a court with the power to de- 
 clare all acts of Congresses, and legislatures, 
 and Presidents and Governors, void and of no 
 effect when they fail to conform to those 
 principles, is, it seems to me, the greatest con- 
 tribution of America to the political science of 
 the world. We are accustomed to seeing the 
 actions of the men who hold the power, the 
 actions of the legislative bodies that hold the 
 purse strings, submitted to the adjudication of 
 the court which has no power to enforce its 
 decrees, except the confidence of the whole 
 
people behind it. We are accustomed to that, 
 and it seems natural to us that nations, how- 
 ever great, and rulers, however powerful, 
 should go before a court and submit the ques- 
 tion whether their actions and their views ac- 
 cord with the principles of justice. But it 
 does not seem so to most of the world. It is 
 rather a new idea, and it will take time and 
 argument and exposition to bring the world 
 in general to the acceptance of that view. 
 And upon that long pathway this Society has 
 entered. A prosperous voyage to it, and a 
 safe arrival ! 
 
 I have said that the time has come for prac- 
 tical dealing with specific causes and specific 
 remedies. Do not understand me as believing 
 that this is to be substituted for the continu- 
 ous and unwearied assertion and reassertion 
 of the great principles upon which the move- 
 ment for peace and justice must depend in all 
 parts and in every phase. For, however great 
 may be the material wealth and power of 
 these great nations, after all, what rules the 
 world, the one thing that is eternal and all 
 powerful, is the intangible and the senti- 
 mental. 
 
 12 
 
The above address was delivered at the opening 
 of the International Conference of the American 
 Society for Judicial Settlement of International Dis- 
 putes, Washington, D. C., December 15, 1910. In 
 introducing the speaker the presiding officer, James 
 Brown Scott, said: 
 
 For centuries it was the plan of the philosopher 
 and the hope of the philanthropist that some means 
 might be found by which international conflicts 
 should be settled peacefully without a resort to 
 arms, and the dreamers of dreams, philosophers and 
 philanthropists, proposed that the questions at issue 
 between nations should be settled either in confer- 
 ence, in diplomatic assemblies or by temporary 
 tribunals of arbitration created for the express pur- 
 pose. That which the dreamers of dreams have 
 dreamed, and the philosophers have planned, that 
 which the philanthropists saw before them as if in 
 a vision, took definite form and shape in the year 
 1907, when our accomplished Secretary of State, the 
 Honorable Elihu Root, instructed the American dele- 
 gation to the Second Hague Peace Conference to 
 propose a permanent court to be composed of judges 
 who should act under a sense of judicial responsi- 
 bility, and which court should represent the various 
 judicial systems of the world. Pursuant to these 
 instructions the delegation, under the leadership of 
 the Honorable Joseph H. Choate, introduced such 
 a proposition, and after weeks of discussion and 
 debate the Conference adopted a draft convention 
 consisting of thirty-five articles for the organization, 
 the jurisdiction and the procedure of a permanent 
 court of arbitral justice, leaving it, however, to the 
 nations to constitute the court, through diplomatic 
 channels, when an agreement should be reached 
 upon the appointment of the judges. 
 
 13 
 
Ammrart Sorirtg far Juiiirial Srltlramtl of 
 Urtlrrnatunial SiEpntrs. 
 
 ©hirers 
 
 Honorary President, William Howard Tart. 
 
 President, James Brown Scott, 
 
 Washington, D. C. 
 
 Vice-President, John Hays Hammond, 
 Washington, D. C. 
 
 Secretary, Theodore Marburg, 
 
 Baltimore, Md. 
 
 Treasurer, J. G. Schmidlapf, 
 
 Cincinnati, Ohio. 
 
 Life membership, Sioo; Sustaining membership, $10 a year; 
 Annual membership, $i a year. 
 
 Remit to treasurer, J. G. Sclunidlapp, Cincinnati, U. S. A. Address 
 inquiries to secretary, Theodore Marburg, Baltimore, U. S. A. 
 
 The proceedings of the "Judicial Settlement’’ Conference at 
 Washington, December 15-17, 1910, will be printed in English, 
 French, German and Spanish. Each member of the Society will 
 be entitled to one copy. Non-members may procure them by 
 remitting the price. One Dollar, to 
 
 TUNSTALL SMITH, Assistant Secretary, 
 
 The Preston, Baltimore, U. S. A. 
 
Amrrimi §nrirta fur JuMrial ©rttirmrnJ of 
 3nlrrnaticnal Sispirtra. 
 
 Aiimsnrg (Ennwil 
 
 Lyman Abbott, New York. 
 
 Edwin A. Alderman, Virginia. 
 
 James B. Angei.l, Michigan. 
 
 R. L. Baden, Ottawa, Ont. 
 
 Simeon E. Baldwin, Connecticut. 
 
 Richard Bastholdt, Missouri. 
 
 Alexander Graham Bell, Washington, D. C. 
 Theodore E. Burton, Ohio. 
 
 Joaquin D. Casasus, Mexico City, Mexico. 
 
 George E. Chamberlain, Oregon. 
 
 Winston Churchill. New Hampshire. 
 
 George B. Cutten, Wol frill e, N. S. 
 
 William R. Day, Ohio. 
 
 Jacob M. Dickinson, Washington, D. C. 
 
 Andrew S. Draper, New York. 
 
 Charles W. Eliot, Massachusetts. 
 
 Charles E. Fenner, Louisiana. 
 
 William Dudley Foulke, Indiana. 
 
 James Ordinal Gibbons, Maryland. 
 
 George Gray, Delaware. 
 
 Charles Noble Gregory, Iowa. 
 
 Peter S. Grosscup, Illinois. 
 
 Joseph F. Johnston, Alabama. 
 
 David Starr Jordan, California. 
 
 Harry Pratt Judson. Illinois. 
 
 William H. King, Utah. 
 
 George W. Kirchwey, New York. 
 
 Philander C. Knox. Washington, D. C. 
 
 Charles F. Libby, Maine. 
 
 Francis B. Loomis, Washington, D. C. 
 
 Horace H. Lurton, Tennessee. 
 
 R. McBride, Victoria, B. C. 
 
 Pablo Macedo, Mexico City, Mexico. 
 
 Charles Marcil, Ottawa, Ont. 
 
 Sidney E. Mezes, Texas. 
 
 S. C. Mitchell, South Carolina. 
 
 Francis G. Newlands, Nevada. 
 
 L. Oppeneeim, Cambridge, England. 
 
 Thomas Nelson Page, Washington, D. C. 
 Walter EL Page, New York. 
 
 W. Peterson, Montreal. 
 
 Sir Thomas Raleigh, London, England. 
 Whitelaw Reid, London, England. 
 
 Willlam Renwick Riddell, Toronto, Ont. 
 
 Uriah M. Rose, Arkansas. 
 
 A. C. Rutherpord, Edmonton, Alberta. 
 
 Walter Scott, Regina, Saskatchewan. 
 
 Albert Shaw, New York. 
 
 Hoke Smith, Georgia. 
 
 Bishop Robe?.t Strange, North Carolina. 
 
 Sir Charles Hiebert Tupper, Vancouver, B. C, 
 George Turner, Washington. 
 
 Charles R. Van Hiss, Wisconsin. 
 
 Benjamin Ids Wheeler, California. 
 
 Willlam Allen White. Kansas. 
 
 George G. Wilson, Rhode Island. 
 
 Prince di Cassano, Italy. 
 
T> 
 
 Publications of the American Society for Judicial 
 Settlement of International Disputes — 
 
 1. The New Era of International Courts, by 
 Simeon E. Baldwin. August, 1910. 
 
 2. The Necessity of a Permanent Tribunal, by 
 Ernest Nys. November, 1910. 
 
 Supplement — The American Society for Judicial 
 Settlement of International Disputes, by James 
 Brown Scott. November, 1910. 
 
 3. The Importance of Judicial Settlement, by Elihu 
 Root. February, 1911. 
 
 The Third National Peace Congress will be held 
 in Baltimore, McCoy Hall, Johns Hopkins Uni- 
 versity, May 3-5, 1911, under the joint auspices of 
 all the leading societies in America devoted to the 
 cause of the settlement of international disputes 
 by means other than war. Noted men from all 
 parts of the country will take part in the congress. 
 
 X8Z2C9efrO 
 
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