of Coire and of Valais, above suspicion to the parties; and what shall then be concluded and done by the said judges, either by judicial sentence or by amicable arrangement, shall be final and inviolably observed and irrevocable. (Merignhac: §42.)

Merignhac says that this treaty has been the basis of numerous subsequent alliances between France and the Swiss cantons.

In the last century, and more particularly during the latter half of the century, there has been a marked trend of international sentiment and practice toward the making of agreements for permanent arbitration, either by treaties concluded solely with that view, or by the inclusion of an arbitral clause in treaties of a general nature. The number of such permanent arbitration treaties now subsisting is nearly fifty.

It is now nearly sixty years since the United States first entered into a permanent treaty engagement (with Mexico) for arbitration, obligatory, unless deemed by either party "altogether incompatible with the nature of the difference or the circumstances of the case." The recent treaty for arbitration of pecuniary claims between all the American states, and the negotiation of permanent arbitration treaties among European and American states, show the powerful impetus of public sentiment in favor of arbitration.

The manner in which the question of penalties and sanctions was anciently dealt with has already been suggested; as in the instance given of authorized excommunication of the recalcitrant party. Sometimes a fine was authorized, as in the treaty of August 9, 1475, between Louis XI. and Edward IV., in which the penalty of 3,000,000 francs was named. (Merignhac: §41.)

Sometimes the parties gave bail or security for the performance of the award to be rendered.

After all is said with respect to securities, penalties and federal, or other, execution and enforcement of the awards of international tribunals, the final sanction of international law and arbitration is found in the common international juridical conscience-at bottom the same sanction as that for the rules of private morality which generally govern men in their jural and extra-jural conduct and relations. The essence of law is order; and of human law, order founded in justice. Any system of rules which produces order is law. The sanction, explicit or implicit, may influence in greater or less degree

the observance of the law, the observance of order in the conduct of individuals and of states. All rules of order have their sanction-in nature, in ethics, in statutes, in treaties, in usage and custom. The diversity in the kind and coercive force of sanctions does not alter the essential nature of law of which the criterion is order, the basis justice. Confusion has arisen out of a too narrow conception and restriction of the meaning of the term sanction, which includes all the forces, influences, agencies and instrumentalities, of a legal and moral nature, whereby obedience to law and its judgments is enforced.

In this view, little thought need be given to the theoretical consideration of the question of the sanctions of international law and of arbitral sentences. The rule is-and the exceptions are so rare that they serve conclusively to prove the rule-that states who have voluntarily submitted to international arbitration, do voluntarily observe and execute the award rendered by the tribunal of their own choosing. The execution of all judicial decrees rests at last upon the public conscience and sentiment which makes the laws, and the condition of which the world over is a sufficient guaranty for the performance of awards solemnly rendered by tribunals created by arbitrating

states.

The rising power of public opinion, together with the enlightened appreciation of selfish interest and security, explains the increasing disposition of governments to resort to arbitration and to execute the award. In the words of Baron D'Estournelle de Constant,

It is increasingly difficult for a government, even monarchic and aristocratic, to put itself in opposition to public opinion,

which, it may be added, is growing in all countries more intense and forceful and more perilous seriously to affront.

Witness Russia, the internal effects of an unpopular war will perhaps be more grave than the external consequences. * * * Herein is the sanction of arbitration. (Les Sanctions de L'Arbitrage International, par Jacques Dumas, preface, pp. xii and xiii.)

Experience has shown the sufficiency of this guaranty in general to insure the voluntary performance of the awards of arbitral tribunals. It will constitute a part of the triumph of reason over brute force that no place be given to the use of violence in enforcing the execution of the arbitral sentence; that the state that fails to do so thereby vol

untarily puts itself outside the pale of international law. And if a graver sanction were needed, provision might well be made for the creation of a supreme tribunal to be composed of arbitrators chosen from civilized states disinterested in the original controversy, authorized and empowered to hear and pass on the question whether an arbitrating state had refused to abide by an arbitration to which it had voluntarily submitted; and whether there were just and lawful reasons for its contumacy; and if not, to pass the sentence of contumacy and outlawry, with the legal consequence of non-intercourse with and political recognition by other civilized states during the delinquency. The condemnation and the adjudged penalty that clearance papers should not be issued by the latter to the ports of the former and the suspension of diplomatic relations, during the delinquency, would have all the effects of a blockade without bloodshed and without the use of force. The coercion would not be less effective because pacific. What government could justify itself before its own people and before the world and withstand the judgment of condemnation? WILLIAM L. PENFIELD.

Washington, D. C.

A PERMANENT TRIBUNAL OF INTERNATIONAL ARBITRA

TION: ITS NECESSITY AND VALUE

The average individual of these modern days views war with apprehension and alarm. To him it means loss, or risk, of life or limb, either for himself or for those dear to him, or loss of business opportunities and heavy taxes. The growth of socialistic and democratic doctrines has widely spread the historic truth that in the conflicts of the past, largely brought on by the selfish greed of the oligarchic few, the plain many, "the common herd," Napoleon's "food for powder," have had their sufferings for their pains. And the heads of the aggregations of men we call "sovereign states"-the oligarchic fewsoftened by the spread of the civilizing influence of an industrial age, themselves begin to look on war askance, and to plan ways of avoiding it.

THE HAGUE CONVENTION

In the year 1898 the czar of all the Russias sent out his remarkable circular note suggesting a conference of the important nations of the world-those having representatives at his court to devise means to put an end to these increasing armaments and to find means for avoiding the calamities which menace the entire world. (U. S. Foreign Relations, 1898, pp. 540, 542.)

Certain cynics on international affairs broadly intimated that Russia, having her own problems of internal administration to contend with, needed about fifty years of freedom from external pressures of all kinds. After that, tribunals of arbitration would be relegated to the lumber room of exploded fads; and a foreign office backed by a disciplined army of many million men, would dictate the policy of Europe-nay, of the world.

However this may be, and there are always such suggestions in regard to all apparently good conduct in this world, the nations responded to the call.

Thus the note, having met with a favorable reception, was followed by a later communication from the same source on December 30, 1898.

Seven themes were submitted for discussion at the international conference proposed to be held.

1. Non-increase of fighting forces.

2. Interdiction on the use of new arms or explosives.

3. Limitation of use on land of present explosives and prohibition of projectiles from balloons.

4.

Interdiction in naval warfare of rams and submarines.

5. The adaptation to naval warfare of the Geneva convention.

6.

of war.

Revision of the Brussels, 1874, declaration as to laws and customs

7. The acceptance in principle of the usage of good offices, of mediation, and of optional arbitration for such cases as lend themselves to it, with a view of preventing armed conflicts between nations; an understanding upon the subject of their mode of application, and the establishment of a uniform code of practice.

THE HAGUE TRIBUNAL

From that historic conference sprang the Hague tribunal-the first permanent court of arbitration in the world's history.

The step so taken in advance has been a great one-but it is still in its experimental stage. Even as made, it falls far short of the necessary completeness such a step should have, to give it promise of properly fulfilling its function.

With the feature of voluntary, and not compulsory, arbitration embodied in the Hague convention we have no quarrel. As will be shown hereafter, too many human imperfections still hedge about our proposed international judiciary for any nation blindly to submit its future unknown interests and causes of quarrel to their hands for final disposition.

The Hague tribunal lacks two great elements of a permanent tribunal, in the absence of which it is practically emasculated. Until it is clothed with these attributes it is destined but imperfectly to fulfill its high office.

The Hague tribunal is not in the true sense a permanent court, it is permanent only in name. Its membership of judges is not confined to a few selected men who sit as a permanent court ready at all times to do its business and receiving a fixed salary during an appointment for life during good behavior-such as is the case with the supreme court of the United States and the high courts of other nations.