Evans in the case of the Möwe 51 are to be commended and they should serve as a guide for every judge of a prize court who is called on to determine the rights of an enemy suitor:

When a sea of passions rises and rages as a natural result of such a calamitous series of wars as the present, it behooves a court of justice to preserve a calm and equitable attitude to all controversies which come before it for decision, not only where they concern neutrals, but also where they may affect enemy subjects. In times of peace, the admiralty courts of this realm, are appealed to by people of all nationalities who engage in commerce upon the sea, with a confidence that right will be done. So in the unhappy and dire times of war the Court of Prize as a court of justice will, it is hoped, shew that it holds evenly the scales between friend, neutral, and foe.

In several of the cases examined above the decisions of the British prize courts may seem to some to have been unnecessarily harsh and technical, and in that respect may be contrasted with the more liberal interpretation adopted by the Supreme Court of the United States in the case of the Buena Ventura; yet in other cases technicalities were disregarded, the plea of equity was admitted, and German ships were ordered to be detained when a strict interpretation of the law and the facts would have justified their condemnation.

The policy of the government, too, has been marked by liberality in dealing with German ships which were in British ports at the outbreak of the war. It could have treated the Sixth Hague Convention as inoperative and condemned the hundreds of enemy ships which were seized under the circumstances set forth in the convention. From many quarters have come urgent appeals for the confiscation of all German vessels in British ports as a necessary and legitimate act of reprisal against Germany for the destruction by submarines of British merchant vessels without warning, in violation of the provisions of the Hague Conventions and contrary to the humane practice of the past. 52 But so far as is intent of the parties (to the Sixth Hague Convention) and the language of its preamble makes it clear that the clauses of the convention are to be construed liberally in favor of any ship which may have had the misfortune of finding itself in any enemy port at the outbreak of the war."

51 Ibid, Pt. I, p. 72.

52 Such an appeal was addressed to the government by the executive committee of the Navy League on July 3, 1915. In its appeal the committee said: "Surely it is the obvious duty of the Government to turn to practical account every vessel in

known such suggestions have not been seriously considered by the government and no reprisals against enemy ships have in fact been resorted to.53

JAMES W. GARNER.

their hands for the benefit of British interests. The destruction of British merchant vessels in violation of the laws of war offers complete vindication for this form of reprisal. Whatever a prize court decision may be as affecting the cargoes of vessels which have been seized, there should be no hesitation on the part of the Government to confiscate enemy ships as an act of reprisal for British merchantmen which have been sunk.

"In the present exigencies of the nation, every enemy merchantman in seaworthy condition should be actively employed as part of the British mercantile marine. The immediate value of the adoption of such a policy would be to convince Germany that she must pay in kind and at once for her lawlessness at sea, and in the second place to assist in considerably modifying the quotations for shipping freights by stimulating a demand for the use of these ships by merchants.

"The Navy League, therefore, strongly urge that his Majesty's Government should at once follow the example of our latest ally, Italy, in confiscating at least an equivalent of enemy ships to those which have been destroyed by German submarines; and further employ all enemy ships for the purpose of British sea commerce upon such terms and under such conditions as may be deemed advisable."

53 It appears, however, from a dispatch of Sir Edward Grey to Ambassador Page of February 10, 1915, that the British Government was resorting to its right of requisitioning German ships detained in British ports. This right is expressly recognized by Article 2 of the Sixth Hague Convention, but it is conditioned upon the obligation to make compensation at the close of the war.

THE ORIGIN OF THE HAGUE ARBITRAL COURTS*

II. THE PROPOSED COURT OF ARBITRAL JUSTICE

A few years of experience with the Permanent Court of Arbitration served to make clear the points on which it could be improved. "There was thus created," wrote James Brown Scott as reporter of the project for a Court of Arbitral Justice, "a single institution which might decide purely legal questions on the basis of respect for law, and broader questions of a non-judicial nature, either or both of which were to be decided by judges, that is arbiters, chosen by the parties in controversy. In modern states judicial questions are decided by judges in courts of justice, and the judges are not the direct appointees of the parties. In matters of purely private interest which may be compromised, judges of the parties' choice are as much in place as they would be out of place in a court of justice." 25

This difference, and the failure in the 1899 court to realize it, was, of course, evident to the foreign offices of the world, but Europe was perhaps too concerned about its own affairs to bother much about it and to seek for improvement. The American Department of State was not so ready to stop short of what it considered best. In the very history of the United States it had what is almost the only applicable precedent pointing to the inevitable development of a genuine judicial court from the existing arbitral machinery. In a circular note of October 21, 1904, Secretary Hay made the initial proposal for calling the Second Hague Conference and, therefore, the idea of another council of the nations was well to the fore in the collective mind of the Department of State for some two years and a half before its actual convening.

Improvement of the pacific settlement machinery offered one of the obvious points of departure for the work of the proposed conference and * The first part of this article appeared in the JOURNAL for October, 1914 (Vol. 8), p. 769.

25 Scott's American Addresses at the Second Hague Conference, 113-114; 1 Deuxième Conférence de la Paix, 348.

was, as a matter of fact, carefully studied in the Department. The diplomatic correspondence of 1904, 1905, 1906 and 1907, as published, does not venture a word on the subject, the only program matters discussed at length being those of the limitation of armaments and obligatory arbitration,26 so that it may be concluded that the Department considered its plans as logically constituting a development of the existing court.

In April, 1907, what proved to be the first of a series of national peace congresses was held in New York. Its meetings attracted much attention and in its sessions the first public inkling of the intentions of the American Government was given. President Roosevelt in a letter of April 5 to Andrew Carnegie, which was read on April 15, wrote:

I hope to see adopted a general arbitration treaty among the nations; and I hope to see the Hague Court greatly increased in power and permanency, and the judges in particular made permanent and given adequate salaries, so as to make it increasingly probable that in each case that may come before them, they will decide between the nations, great or small, exactly as a judge within our own limits decides between the individuals, great or small, who come before him. Doubtless many other matters will be taken up at The Hague; but it seems to me that this of a general arbitration treaty is perhaps the most important.27

For the opening address the congress was fortunate enough to have Secretary of State Elihu Root who spoke on April 15, taking for his subject "The American Sentiment of Humanity." In the course of his address he said: 28

It has seemed to me that the great obstacle to the universal adoption of arbitration is not the unwillingness of civilized nations to submit their disputes to the decision of an impartial tribunal; it is rather an apprehension that the tribunal selected will not be impartial. In a dispatch to Sir Julian Pauncefote, dated March 5, 1896, Lord Salisbury stated the difficulty. He said that

"If the matter in controversy is important, so that defeat is a serious blow to the credit or the power of the litigant who is worsted, that interest becomes a more or less keen partisanship. According to their sympathies, men wish for the victory of one side or another. Such con

26 See For. Rel., 1904, 10-14; 1905, 828-830; 1906, 1625–1642; 1907, 1099–1287. "Proceedings of the National Arbitration and Peace Congress, New York, 1907, 33-34; Scott's American Addresses, etc., 78-79, 2 Deuxième Conférence, 309 and 327. 28 Ibid., 43 ff.; American Addresses, etc., 84-86; 2 Deuxième Conférence, 314–315.

flicting sympathies interfere most formidably with the choice of an impartial arbitrator.

* * *

"This is the difficulty which stands in the way of unrestricted arbitration. By whatever plan the tribunal is selected, the end of it must be that issues in which the litigant states are most deeply interested will be decided by the will of one man, and that man a foreigner. He has no jury to find his facts; he has no court of appeal to correct his law; and he is sure to be credited, justly or not, with a leaning to one litigant or the other."

The feeling which Lord Salisbury so well expressed is, I think, the great stumbling-block in the way of arbitration. The essential fact which supports that feeling is that arbitration too often acts diplomatically rather than judicially; they consider themselves as belonging to diplomacy rather than to jurisprudence; they measure their responsibility and their duty by the traditions, the sentiments, and the sense of honorable obligation which has grown up in centuries of diplomatic intercourse, rather than by the traditions, the sentiments, and the sense of honorable obligation which characterize the judicial department of civilized nations. Instead of the sense of responsibility for impartial judgment, which weighs upon the judicial officers of every civilized country, and which is enforced by the honor and self-respect of every upright judge, an international arbitration is often regarded as an occasion for diplomatic adjustment. Granting that the diplomats who are engaged in an arbitration have the purest motives; that they act in .accordance with the policy they deem to be best for the nations concerned in the controversy; assuming that they thrust aside entirely in their consideration any interests which their own countries may have in the controversy or in securing the favor or averting the displeasure of the parties before them, nevertheless it remains that in such an arbitration the litigant nations find that questions of policy, and not simple questions of fact and law, are submitted to alien determination, and an appreciable part of that sovereignty which it is the function of every nation to exercise for itself in determining its own policy is transferred to the arbitrators. * * *

What we need for the further development of arbitration is the substitution of judicial action for diplomatic action, the substitution of judicial sense of responsibility for diplomatic sense of responsibility. We need for arbitrators not distinguished public men concerned in all the international questions of the day, but judges who will be interested only in the question appearing upon the record before them. Plainly this end is to be attained by the establishment of a court of permanent judges, who will have no other occupation and no other interest but the exercise of the judicial faculty under the sanction of that high sense of responsibility which has made the courts of justice in the civilized nations of the world the exponents of all that is best and noblest in modern civilization.