In Secretary Root's instructions of May 31, 1907, to the American delegation to the Conference it is written: 29

5. In the general field of arbitration two lines of advance are clearly indicated. The first is to provide for obligatory arbitration as broad in scope as now appears to be practicable, and the second is to increase the effectiveness of the system, so that nations may more readily have recourse to it voluntarily.

* *

The method in which arbitration can be made more effective, so that nations may be ready to have recourse to it voluntarily and to enter into treaties by which they bind themselves to submit to it is indicated by observation of the weakness of the system now apparent. There can be no doubt that the principal objection to arbitration rests not upon the unwillingness of nations to submit their controversies to impartial arbitration, but upon an apprehension that the arbitrations to which they submit may not be impartial. It has been a very general practice for arbitrators to act, not as judges deciding questions of fact and law upon the record before them under a sense of judicial responsibility, but as negotiators effecting settlements of the questions brought before them in accordance with the traditions and usages and subject to all the considerations and influences which affect diplomatic agents. The two methods are radically different, proceed upon different standards of honorable obligation, and frequently lead to widely differing results. It very frequently happens that a nation which would be very willing to submit its differences to an impartial judicial determination is unwilling to subject them to this kind of diplomatic process. If there could be a tribunal which would pass upon questions between nations with the same impartial and impersonal judgment that the Supreme Court of the United States gives to questions arising between citizens of the different States, or between foreign citizens and the citizens of the United States, there can be no doubt that nations would be much more ready to submit their controversies to its decision than they are now to take the chances of arbitration. It should be your effort to bring about in the Second Conference a development of the Hague Tribunal into a permanent tribunal composed of judges who are judicial officers and nothing else, who are paid adequate salaries, who have no other occupation, 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. These judges should be so selected from the different countries that the different systems of law and procedure and the principal languages shall be fairly represented. The court should be made of such dignity, consideration and rank that the best and ablest jurist will accept appoint

29 Sen. Doc. 444, 60th Cong. 1st Sess., 10-11, 12; For. Rel., 1907, 1133, 1135; Instructions to American Delegates to the Hague Conferences, World Peace Foundation Pamphlet Series, 20, 22-23; Scott: The Hague Peace Conferences of 1899 and 1907, II, 189, 191.

ment to it, and that the whole world will have absolute confidence in its judgments.

The Second Hague Conference met on June 13, 1907, and at the second plenary session on June 19 the work to be undertaken was assigned to four commissions. The first of these was made up of Gaëtan Mérey de Kapos-Mére of Austria-Hungary, Ruy Barbosa of Brazil, and Sir Edward Fry of Great Britain, honorary presidents; Léon Bourgeois of France, president; Herr Kriege of Germany, Cléon Rizo Rangabé of Greece, Guido Pompilj of Italy, and Gonzalo A. Esteva of the United Mexican States, vice presidents. To this commission was referred the questions relative to maritime prize, which came up later in connection with the International Prize Court, and the first article of the Conference program of April 3, 1906, which read: "Improvements to be made in the provisions of the convention relative to the peaceful settlement of international disputes as regards the Court of Arbitration and the international commissions of inquiry." 30

The First Commission met on June 22, M. Bourgeois opening with one of his felicitous addresses in which he reviewed the status of the questions to be examined. "As a natural result of the organization of recourse to arbitration and the institution of the Permanent Court, the idea of international justice has entered the domain of practical reality," he commented. "The mind of the peoples is keenly engrossed with it, impatient of enjoying without delay its full realization, so great are the needs for equity, to which the progress of civilization naturally conduces. The legitimate prudence of governments is accustomed to it." 31 But the talented Frenchman left the thought there, to continue with the results already credited to The Hague machinery for pacific settlement. As he said a moment later, "it does not befit your president to determine the field of your debates or to forecast the problems which may later be submitted to you."

Baron Marschall von Bieberstein of Germany, as the applause accorded to M. Bourgeois died away, rose to present his project for prize jurisdiction, followed a moment later by Sir Edward Fry of Great Britain with a plan for the same purpose. The German offered an

30 See For. Rel., 1906, 1626 and 1630, and 1 Deuxième Conférence, etc., XVII. 31 2 Deuxième Conférence, etc., 5.

amendment to the Pacific Settlement Convention, Mexico presented an obligatory arbitration treaty, France two projects on the commission of inquiry and summary arbitration titles, and General Porter his proposal on the recovery of contract debts. M. de Martens asked that the right to deposit amendments or projects in the course of the debates be freely reserved to each delegation, and the president ruled that "each may offer propositions whenever it shall seem opportune."

He continued to the effect that the commission had before it proposals of two orders,-pacific settlement and maritime prize. Accordingly, he suggested a division into two subcommissions, the first to study improvements in the Pacific Settlement Convention, and the second to study the matters eventually brought into the International Prize Court Convention. Two lists were opened, and commission members were free to join the subcommissions according to their predilections. A total of 101 members joined the First Subcommission.

The First Subcommission met on June 25, M. Bourgeois as president indicating again that "it is needless to say that there can be no closure against any future proposition and that complete freedom of initiative. and of discussion is assured to each during the course of the debates." 32 The actual work of the First Subcommission was assigned as the revision of the text of the 1899 Convention for the Pacific Settlement of International Disputes in connection with the propositions already made and to be made.33

* *

At the beginning of this session, "M. de Martens, in the name of the Russian delegation, deposited three propositions * the second on the improvement of the Permanent Court of Arbitration (in two. folios)." The first and third of these three propositions by definition and

32 2 Deuxième Conférence, etc., 209.

33 This work began at the second session on June 27 and continued through ten sessions until August 13, when the subcommission's work was done on this subject. Comité d'Examen A, established by the fourth session of the subcommission on July 9, held but six sessions for its task of putting the revision in shape for submission, its first four on July 13, 16, 20 and 23, a fifth on August 13, and a sixth on October 1. Subcommissions of the Conference and their subordinate comités d'examen met at the convenience of their members, some of whom were frequently liable to have conflicting engagements. Commissions met in the morning and afternoon, Tuesday morning and Thursday afternoon being set for the first, which is the one in which we are here interested.

specific reference in the minutes are Annexes 2 and 11, printed as such in 2 Deuxième Conférence Internationale de la Paix, 862 and 875, and relating respectively to commissions of inquiry and arbitral procedure. The second, "in two folios," is identified as Annex 10, and there need be no doubt that its second folio was the one printed as Annex 75, which was later referred to by M. de Martens himself as having been deposited "nearly six weeks" before August 1. And this is proved by the list made out for Committee of Examination A.34 Again Russia was in the lead as to the deposit of projects, and the second folio of the second project deposited on June 25, later called Annex 75, reads as follows:

TITLE IV

INTERNATIONAL ARBITRATION

CHAPTER II. The Permanent Court of Arbitration

Art. 24. The members of the Permanent Court of Arbitration shall meet once each year at The Hague in plenary session.

These meetings are competent for:

1. Electing by secret ballot three members from the list of arbiters who, during the following year, must always be ready to constitute immediately the Permanent Tribunal of Arbitration;

2. Taking cognizance of the annual report (compte rendu 35) of the Administrative Council, as well as of the International Bureau;

3. Expressing the opinion of the Permanent Court of Arbitration on questions arising during the course of the procedure of an arbitration tribunal, as well as on the actions (agissements) of the Administrative Council and the International Bureau:

4. Exchanging their ideas on the progress of international arbitration in general.

The same members of the Permanent Tribunal of Arbitration may be re-elected by the above-mentioned meeting of the members of the Permanent Court of Arbitration for a new year of functioning.

Art. 25. In case of the consent of the Powers in dispute to leave their difference to arbitration, they address themselves to the International Bureau requiring it immediately to convoke members of the Permanent Tribunal of Arbitration.

The two parties are free each to add one member specially designated to the body of the Permanent Tribunal of Arbitration.

Art. 26. In default of the convocation of the Permanent Tribunal of

34 Ibid., 375.

35 The term used as the title for the document annually issued is rapport.

Arbitration, the parties in dispute may proceed in the following manner for the constitution of a special Tribunal of Arbitration:

Each party appoints two arbiters and they together choose an umpire. In case of a division of votes, the choice of the umpire is intrusted to a third Power, designated in common accord by the parties.

If accord is not established on this subject, each party designates a different Power, and the choice of the umpire is made in concert by the Powers so designated.

The Tribunal being thus composed, the parties notify the International Bureau of their decision to constitute a special Tribunal of Arbitration, and the names of the arbiters.

Art. 27. The Permanent Tribunal of Arbitration meets on the date fixed by the parties.

The members of the Permanent Court of Arbitration, in the exercise of their functions and outside of their countries, enjoy diplomatic privileges and immunities.

Here follow Articles 25 ff., of the Convention of 1899.

By repute it was known that the delegation of the United States intended to make some suggestion for improving the existing court. Formal deposit of projects was not demanded owing to the freedom permitted in introducing them; but, though the time of deposit of the American proposition is not given in the published records of the Conference, it can be approximated. Article 9 of the réglement of the Conference provided that "every proposed resolution or desire to be discussed by the Conference must, as a general rule, be delivered in writing to the president, and be printed and distributed before being taken up for discussion." 36 Observance of this rule gives the only clue to the time of deposit of the American proposal, and it is interesting to note that the evidence points to a much earlier date of deposit than has been usually assigned to the project. When Committee of Examination A met for its first session on July 13, M. Bourgeois as president summarized the propositions "communicated to the committee in due form-each document bearing its serial number," that is, its number in the order of its deposit. The list shows the Russian proposition as No. 6 and the American one as No. 19. By tracing the date of deposit of all the projects possible, I conclude that the American proposition was handed in between July 2 and July 9 or on one of those dates. This approximate date is circumstantially indicated by the fact that as early as July 16, 36 1 Deuxième Conférence, 62; Scott's Hague Peace Conferences, I, 774.