The International Court of Prize, established by the second Hague Conference, fulfils still another function. It is a war court, as its title indicates, and has no jurisdiction over controversies arising in times of peace. The Court of Arbitral Justice, now under consideration, while it may be called upon to deal with disputes arising out of war, is primarily intended to decide questions of law founded in justice in such manner and at such time as to prevent war. It is to be noted furthermore that the object is not merely to settle an issue temporarily. Temporary settlements are compromises and can be reached by resort to the Court of Arbitration. Questions of law must be so disposed of that each of the contending parties will immediately or in the long run assent to the basis of the settlement, not merely because it is according to law but because by common acceptation it is believed to be just. In other words, the chief function of the proposed court will be to guide and direct the hearts as well as the minds of men toward the eradication of those deep seated causes of difference which have plunged nations into war. In defending the method of balancing the departments of government set up in our constitution, Hamilton pointed out a truth which has become fundamental to the American student of Political Science. His observation is applicable to international affairs. “Justice,” says Hamilton, “is the end of government; it is the end of society; it ever has been and ever will be pursued until it be obtained or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy can as truly be said to reign as in a state of nature where the weaker individual is not secured against the violence of the stronger.” (Federalist 51).
One of my associates has described wars growing out of deep-seated differences between nations as earthquake wars. I like the expression, for it conveys to the mind the inevitable result accompanying fundamental differences which, boiling up within, crack the surface of our good intentions. The ultimate object of the establishment of a Court of Arbitral Justice is to prevent these abysmal disturbances which, if allowed to exist, will sooner or later destroy any institution, political or judicial, set up by the nations. The immediate object is to come to a common understanding of international justice, and to formulate rules for the conduct of nations based on that understanding.
At this point a difference appears which apparently contributed largely to the defeat of the Article of the first convention of the second Hague Conference, under which, had it been adopted, the Court of Arbitral Justice would quickly have come into existence. The relation of the judicial to the other departments of government under our constitutional system is radically different from that with which other nations are familiar. While there has of late been much agitation of the question whether the Supreme Court of the United States ought to be permitted to overrule the will of the people expressed through legislative bodies, it is nevertheless fundamental to our system that the Supreme Court stands above the legislative and the executive when a constitutional question is at issue. We have deliberately and wisely set over our institutions of government this great tribunal which protects the individual, whether the weakest human being or the latest artificial person created under the law. When the question of the composition of the Court of Arbitral Justice was under discussion at the Hague in 1907, M. Barboso of Brazil brought in a proposal providing for the equal representation of the 46 nations in the composition of the Court, dividing the whole body into three groups to serve for a period of three years each in the total of nine for which they should be chosen. This proposal was afterward withdrawn by its author, but the Significance of the suggestion lies in this, that the delegates from Brazil conceived of the Court as a body of representatives of the several powers. As has been frequently pointed out, such a body would be a judicial assembly, not a judicial court, better calculated to frame codes than to weigh legal principles. But the fact was that M. Barbosa did not believe in the plan of an International Supreme Court. To his mind and to the minds of all of those who oppose the American conception of the relation between the legal and political arms of government, such a court of justice would subordinate sovereignty. Such a court to their minds is inconsistent, as Mr. Scott has pointed out (Hague Conferences, vol. I, pp. 458–9), with the sovereignty of nations. At first sight, there appears to be little reason why the method agreed upon for the constitution of the International Prize Court should not be applied to the selection of judges for the Court of Justice. A little reflection, however, reveals an important difference. As already pointed out, the Prize Court is organized to settle international questions arising out of war. There is little objection, therefore, to the arrangement for rotation in office of the judges. When, however, as in the case of the proposed Court, there is set up a body which is given jurisdiction over questions of international rights with powers like those of a common law court to evolve by the cumulation of their decisions new rules of international law, it is easy to perceive why all the powers represented at the Hague agreed that the judges sitting in this court must possess the highest qualities of judicial mind and learning.
Enough has been said by way of introduction, to lead up to the main question, the minimum number of nations required to successfully inaugurate the court. Mr. Thomas Raeburn White, speaking at the third national conference of the American Society for Judicial Settlement of International Disputes, in December, 1912, analyzed the articles of the convention providing for the establishment of the court and showed that the question was clearly left to the powers represented at the conference and could be adopted by any two or more of them when they saw fit. There appears to be no serious dissent from this proposition. Therefore, the question is not whether two nations may of right inaugurate the court, but whether two nations can successfully set it up. What is meant by successfully? Undoubtedly this: that, when the court is set up by two or more nations, it will be resorted to not only by the nations inaugurating it, but by others for the settlement of those great questions of international right which the framers of the convention had in mind when formulating the organic act.
Our able and far-seeing Secretary of State, Elihu Root, in issuing instructions to the delegates of the second Hague Conference, set before them a distinction which I believe ought never to be lost sight of in providing for the establishment of this court. He said in substance that the court should be composed of judges representing the several great juridical systems of the world. What this court must undertake to do, if it is to lead men and nations to accept a common standard of international right, is to reconcile whatever differences now exist in the minds of men, concerning the essentials of justice. If men living under one system regard conduct as just which men living under another system think unjust, it is obvious that these differences must be reconciled. Hence, the success of the court will be more nearly assured if it is inaugurated by two nations of opposite juridical experiences and concepts than if inaugurated by several times that number, all bred under a single system. The nations represented at the Hague Conference all draw their juridical systems from one of two sources, the Civil Law of Rome or the Common Law of England. Among the large number deriving their systems from Roman origin, there are many and important shades of difference, and in some of the nations which in recent years have reorganized their codes both sources are drawn upon. Nevertheless there is generally speaking, this difference of origin to take into account. Among the eight Great Powers above named, the British Empire and the United States are the Common Law nations. The other six are inheritors of the Roman system. In a general way, these six fall into three groups, Germany and Austria in one, France and Italy in another, and Japan and Russia in still a third, unless the last two should be treated separately. It seems to me that the inclusion of representatives of the different juridical systems is so important that it becomes determinative. I should therefore say, the court can be successfully inaugurated by four of the Great Powers, provided the four include one nation of each of the following groups:
1. Great Britain and the United States; 2. France and Italy; 3. Germany and Austria-Hungary; and 4. Japan and Russia.
The court might succeed if the United States and one of the Great Powers of the Continent set it up, but in that case the success would consist in merely making a beginning, in keeping the court alive until others should join in its maintenance, whereas, with four nations uniting as above proposed, with the opportunity open to others to come in, a strong beginning would be made—in other words, the proposed court could be successfully inaugurated.
THE BREAKDOWN OF “CULTURE” AS A REDEMPTIVE FORCE
All thinking and serious people must, in the past year, spontaneously have reflected upon the shocking incongruity of the most cultured nations of the earth—Germany, France, England, Italy, and in many respects, Russia and Japan—being engaged in a warfare which has no parallel in all of humanity’s previous pages. Hitherto we have been assured that culture, science, literature, art, music, the drama, invention, discovery, technical advance, governmental efficiency, social reform, and all that belongs to the educative phases of man’s progress, constituted all the gospel we needed, and could be relied upon in any event as the mainstay of civilization and the true inspiration of man’s upward and onward course to higher and still higher degrees of attainment. Those who held otherwise and contended that these were not sufficient, but that religion and the ethical teachings of the Bible must ever be the incentive of the world’s substantial growth in depth of character, were looked upon in many quarters as somewhat narrow sectarians, or perhaps regarded superciliously as uncultivated fanatics.
But the failure of culture and mere intellectualism to secure man’s salvation is so evident and appalling in the light of what is happening on the blood-soaked soil of Europe, that the contention of the Secularists has received an answer which is indisputable and conclusive. Culture and education, admittedly the noblest products of man’s endeavor, have fallen disastrously short of the promises made in their behalf. The neglect of religion, the decay of a vital faith, have resulted in an awful catastrophe. To him who runs and reads the signs of our times, the proclamation of the prophets of religion and the ministers of Christ have proved themselves so true as to need no further substantiation. Trust in Jehovah and reliance upon the Redeemer of the world for salvation from sin and the sanctification of the human heart, have once more demonstrated their own absolute necessity.