judges; and lastly, when justice was seen to be the great need of the nation, a court, in the empire of Rome, was imposed by the state upon its citizens. We have already made the first two steps in the history of arbitration. We signed our agreement and chose our arbitrator, a pope, a bishop, a priest, a king. The second step was reached in 1899, when at The Hague a permanent panel was created from which that choice could be made; and now we stand upon the very threshold of the third and crowning step, namely, the Second Hague Conference adopted a code of thirtyfive articles, a drafted convention for the organization, the jurisdiction and the procedure of a court of arbitration, composed of permanent judges and acting under a sense of responsibility. When will the judges enter? When international opinion insists that they shall enter; and when that period is reached, the problems of mathematics will be forgotten in the triumph of the achievement. (Applause.)

THE CHAIRMAN: I now have pleasure in introducing a judicial officer of the City of Berlin-Hon. KARL VON LEWINSKI.

INTERNATIONAL ARBITRATION FROM A GERMAN POINT OF VIEW

ADDRESS OF JUDGE KARL VON LEWINSKI

Mr. President, Mr. Smiley, Ladies and Gentlemen: Being a German, I cannot omit to-day to thank President Butler for his very friendly attitude towards Germany, shown in the paper of this morning. I dare say Dr. Butler knows the very soul of real Germany and he has rightly interpreted it. There is no reason in the world why England should distrust the earnest, frank declaration of our government, repeated over and over again, that the purpose of our navy is only to protect our coasts and our growing trade, but never to aid aggressive politics. The very last months have shown that Germany is willing to do everything short of war to maintain peace. This feeling does not only occupy the minds of our diplomats and of the people as a whole, it has also won and occupied the thoughts of our leading men in the science of international law.

I ask your permission to submit a few remarks on the subject of international arbitration from the German point of view-not from a political standpoint, as, being only a jurist, I shall not. trespass upon the ground of high politics-but from a mere judicial point of view, or better, from the standpoint of modern German theory. I shall not present impressions or thoughts gained in this country but confine myself to the knowledge and the ideas which I have brought with me from Germany.

It has been a striking feature of the international law on a tration until a short time ago that its representatives have either striven after the unreachable stars or have shown a remarkable pessimism and lack of confidence. The former class has grown especially in the United States; the latter in Germany. The wonderful, but too unworldly, ideals of your great optimists have been reduced by your own diplomatic representatives to the practicable propositions, which have already become to a great extent the existing law of nations; our representatives seem still to maintain their pessimistic view to a certain extent, but there is hope that after a short time they will find the way on which you are proceeding and that then your keen and daring initiative, combined with our slow but cautious and faithful conservatism, will bear splendid results.

In saying there is hope, I want to express my opinion that the German science of international law is now awakening and will soon be ready to prepare the path for our diplomatic representatives, leading them to the point where you are waiting for us. The German method of carrying on reforms is not the experimental, our leaders are accustomed not to step on any ground until it has been thoroughly investigated and cleared by science. It is an undeniable fact that the German science of international law on arbitration has not done its duty in this respect. It has not followed the transformation of this province of law until a short time ago. One reason for this fact is that the progress of the modern international law in Germany has not been promoted by public sentiment. We owe our unification, our empire, our nation and our position as a world power to the force of our arms; our rapid development has been the direct consequence of the victorious war against France. We know as well as any that we have always been so proud of our powerful army and have felt so safe under its protection that we have neglected to consider the possibilities of a peaceful settlement of international affairs. The public sentiment, however, has changed since our foreign trade and our colonial interests have increased so rapidly, and now science is pushed forward by public opinion to clear the way for arbitration.

Another reason for the German delay in developing modern international law has been that this science is still very young and that it always takes us a certain time to understand a new movement. Even to-day the subject is not at all settled and we are still living in a period of revolution. The old doctrines, founded by Grotius and his followers, have been thrown overboard by practice. The old customary law has been replaced by a great number of treaties, which now are in fact the principal source of international law. The main objects of these treaties are no more the politics, as a hundred years ago, but the

commercial, financial and similar peaceful relations between the nations. The world's intercourse is the principal object of the new law of nations. And this fact stamps a new character on this law. It is not now one protecting the separate interests of a single nation, its purpose is not to protect the sovereignty of one state from intrusions by others; but its principal feature is the solidarity of all nations, the common interest of all states in the conservation of what is just and right, the prevention of wrongs done by any member of this great union to any other member. This change of the old doctrine of international law will not only influence the theory, but also the practical politics of all states, and as I have said, German science is now awakening to this modern aspect of the law of nations.

Let me touch briefly some consequences of this modern aspect. For a long time we have been accustomed to make a strict distinction between international controversies of a judicial and of a political nature and to apply the possibility of arbitration only to the former controversies, because, as as been said, only these allow a judicial formulation of an issue.

The convention of The Hague has also adopted this theory. The distinction is founded on the old doctrine, under which political questions formed the main substance of the international law. As to-day the controversies between nations arise principally out of questions of traffic, their nature is as a rule judicial and not political, so that even from the standpoint of the older doctrine the number of questions which cannot be submitted to arbitration is already very small. But more than that: I dare say that at the present state in the development of solidarity there is, in fact, no international controversy, which from a judicial standpoint is unfit to be handled by a court of arbitration. Even if controversies contain questions of a political nature, they will arise as controversies of law, as judicial controversies. No nation will bring forward at the present time a claim or demand which rests only and openly on mere interests not backed by an alleged right. All claims will have at least the form of a legal controversy, although political questions may be involved. The latter fact does not make a court unable to deal with the controversy and to decide it so far as the judicial part of the controversy goes. In most cases it will even be possible to reach a decision on the merits, which will settle the matter, and if not, the result will be, at least, to show that the controversy is not based on justice but on passion, on egoism or mere desire for unjust gains and power. Such a statement would also probably settle the matter. The consequence of this point of view is that one seemingly important reservation generally applied in arbitration treaties proves unscientific and superfluous.

A perfectly different question is whether a controversy in a certain case may be so thoroughly connected with political interests that political considerations do not allow it to be submitted to arbitration, although arbitration would be able to handle it. This question is in German theory-left to the diplomats and so far it is still a settled rule in Germany that controversies may arise, the judicial decision of which might not serve the interests of the state and that for this reason certain reservations of a political nature ought to be embodied in treaties of arbitration. Questions of this nature are more likely to arise within the narrow boundaries of Europe than in the splendid territorial isolation of the United States, and most likely in states which are surrounded not only by foreign states of equal force but also by foreign races, as Germany, Austria and the Balkan States.

The political reservations deemed advisable are usually limited to the questions of sovereignty or independence, vital interests, honor and interests of third nations.

While, as I have said, it does not belong to theory to attack the existence of these limits as a whole, one must be permitted to criticize the formulation of these reservations. If we do that, it appears immediately, that the last named reservation,-the interests of third nations-is entirely superfluous, because selfunderstood. No person and no state can by submission to arbitration affect the rights of a third party, who is a stranger to the controversy.

The reservation of questions of honor seems to be not only most dangerous, because especially likely to rouse passion without just reason, but also perfectly unjustifiable, because not to the true interests of nations. Questions of mere honor, unconnected with questions of vital interests should never be the ground for raising arms against another nation. Is it really true that the alleged violation of a nation's honor can only be cured by blood? This opinion seems to me just as obsolete and unjust as the idea that a man's violated honor demands the uncertain and-only too often-unjust decision of arms. This prejudice, which still rules in continental Europe to a certain extent, although it has been killed fortunately in England and in this country, is still more unbearable in the relations of nations. The recognition of the injured people's right by a court of the highest standing ought to be a sufficient satisfaction. (Applause.)

The reservation of questions of vital interests seems rather indefinite and is in its real meaning identical with the reservation of independence or sovereignty. As to the latter reservation it is obvious that no court of arbitration can have the power to intrude on the position of a nation as an independent, sovereign state. All states must have the possibility to regulate their foreign and domestic affairs in their own way and as they think it reason-

able and useful for their own citizens, even if in doing so they violate the interests of foreign states. They have only to regard the rights of other nations, not their wishes or interests. The interference with this regulation of the private affairs of a state would be a violation of its independence and at the same time of its vital interests. It is natural that a nation will not leave the determination of matters like these to arbitration.

Thus the reservations which ought to be stated in arbitration treaties are in fact limited to one, and as I have indicated, we in Germany do not go so far as to consider this one reservation unnecessary.

Now as to another consequence of the new law of nations.

The fundament of modern international law being not the sovereignty but the solidarity of nations, the latter is necessarily the ground on which to build the procedure for settling international controversies, and the simple consequence of this doctrine is the general, obligatory treaty of arbitration, as proposed by the American Delegation at The Hague.

This proposition has been rejected on account of the opposition of the German delegates. Germany has not opposed obligatory arbitration, but only the general obligatory system, and even there only the form, not the principle. Her delegates considered the different methods of a world treaty, as presented by America and other nations, not ripe to carry the idea to a success. It seems to me that this standpoint was at least partly due to the old doctrine which considered the sovereignty as the main object of the law of nations and saw a diminution of this sovereignty in any participation of foreign powers in the regulation of a nation's affairs. This point of view does not agree with the modern aspect of the international law. Even if a general treaty contains possibilities which cannot be foreseen, even if a state by entering into such a treaty may be obliged to accept any other nation as a member of the union, even if all nations or governments are not equally trustworthy, the principle of the solidarity of all nations ought to be stronger than the vague possibility of difficulties which perhaps might occur in a far future.

A third consequence of the new international law as a law of the world's intercourse will be that its norms will have to resemble in a certain sense the private law of a single nation. It will need rules on property rights, on rights out of contract and out of torts, it will need rules on limitation, on res judicata, which seems to me an especially important topic, and so on. And here is the field, where we can foresee a most interesting struggle between the different systems of law, especially between those which now govern the civilized world, the common law and the civil law with their various branches. I do not mean to say that the international arbitrators will have to apply the one or the other in