toward neighbors who are struggling to maintain liberty against odds, the nature of which is faintly comprehended. (Applause.)

THE CHAIRMAN: Discussion is in order, under the five-minute rule, at the pleasure of the Conference.

Mrs. EDWIN D. MEAD, of Boston: Apropos of what Dr. Brown said this morning in regard to the Chinese and Japanese, I want to say it seems to me there is one contribution which we women at least can make to this international problem. Many of the Chinese and Japanese students in our midst are going back to be framers of thought and leaders in their country, and many of them are going home, I fear, with simply the knowledge of the laboratory and dormitory, and without having seen many of our Christian homes. I believe if we women could see to it that special courtesies were offered to these keen, alert, courteous young men, they would go home with a very different feeling in regard to our society and to what Christianity stands for. I have had in my parlor a dozen of the Chinese students of Harvard and I have seldom seen brainier, keener, or finer young men. If we consider this matter thoroughly I believe we will be able to render a very great service to these students. (Applause.)

THE CHAIRMAN: If there is no further discussion, the Conference will stand adjourned until to-morrow morning, at ten o'clock.

Third Session

Thursday Morning, May 19, 1910

THE CHAIRMAN: We have arrived this morning at the heart of the great problem which confronts this conference and all bodies like it throughout the world,-the need of the establishment of an international court of justice.* In presenting the first speaker, I cannot refrain from saying that we do not yet know how much our country owes to his scholarly, persistent and intelligent work to this end from his important place in the government. I present the HON. JAMES BROWN SCOTT, Solicitor for the Department of State.

PROGRESS TOWARD AN INTERNATIONAL COURT OF ARBITRAL JUSTICE

ADDRESS OF HON. JAMES BROWN SCOTT

We are so accustomed to the close and intimate association of law and a court in which it is interpreted and applied that the existence of the one seems necessarily to imply the existence of the other, and jurists of reputation and standing have not hesitated to deny the character of law to usages, customs and regulations emanating from the supreme power of the State if a court of justice does not exist for their interpretation, application and enforcement. If this view of the necessary relations between law and courts of justice be acceptable, as to which there is much doubt, it must be considered as limited to conditions obtaining in the highly developed and centralized states of the present day. If the statement be made absolutely, without reference to time and place, it is untrue. and unacceptable, because it is inconsistent with the elemental facts of legal history. Primitive communities existed without a law giver, usages and customs were obeyed without machinery for their enforcement, courts of justice appeared at a relatively late date in the history of such communities and their decrees are not always or necessarily enforced or enforceable by the state. If we admit law to be the command of the state, as to which again there is much doubt, the command is complete in itself without any determination of the channels through which

(*For convenient reference, the text of the "Draft Convention Relative to the Creation of a Judicial Arbitration Court," adopted by the Hague Conference of 1907, is printed in the Appendix of this report.-ED.)

it is to be enforced. A court of justice is essentially a means or instrumentality for the interpretation and application of principles of law and its duty is performed when it has decided the case submitted to its determination. The court does not jenforce its decree, because its function is judicial, not executive; and the correctness of its interpretation is not affected by the fact that its decision is or is not enforced by the proper executive authority. When the Supreme Court of the United States decided the case of the Cherokee Indians versus Georgia it performed its full duty in the premises. It neither enforced its judgment nor took any steps to do so. The petulant declaration of President Jackson that "John Marshall has made his decision, now let him enforce it," did not in any way affect the validity of the judgment, although it manifested on the part of the president a confusion as to the proper functions of the court and the duty of the executive. The penalty attached to the violation of law, usually called a sanction, is not necessarily a part of the law, because the command exists with or without a penalty. It is a means of compelling obedience, but presupposes the existence of a command, to whose enforcement it is attached, and it is a matter of little or no consequence in practice whether the penalty be physical or whether the enforcement of the law be left to an enlightened public opinion, provided public opinion secures its observation.

Law may, therefore, exist as a command of the state, to use a familiar term of analytical jurisprudence; a court may exist for its interpretation and application; a sheriff, marshal, constable, or other executive officer may be designated to enforce the judgment and a penalty may be annexed to any violation of the command of the state, which we popularly call law. But each element is distinct in itself and independent of the others, and while we may be justified in asserting their presence, we should not forget that they are separate and distinct and not necessarily connected; for history shows that far from co-existing at the beginning of legal development they are in themselves the result of a long and painful process of evolution.

But the term "command," which we have used by reason of its familiarity, unduly narrows the domain of law, for it is inapplicable to the usages and customs which have grown up gradually in the course of centuries within a determinate political community. It applies to the Statute, which is but the product of yesterday. To bring usage and custom within the sphere of command, it is necessary to resort to the subterfuge that what the state permits it commands. It would be simpler to discard definitions and consider conditions as history has shown them to be, and if a definition be necessary, to frame it in accordance with the teachings of history rather

than to impose a definition subject to an exception, which largely destroys its value. If we consider the law of any particular community as the sum total of the usages, customs, statutes habitually obeyed, irrespective of their origin and irrespective of their means of enforcement, we have a statement broad enough to include the elements, which form the law of that community, without excluding any element which has entered into the conception of law. By so doing we eliminate the element of command which pre-supposes the existence of a conscious superiority and a dependent inferior and we admit the law of nation to full fellowship within the domain of jurisprudence. International law, like the common law, is a thing of usage and custom evidenced, as is the common law, by practice and observance. It is not imposed by a superior upon an inferior any more than the common law is a command. It is observed because public opinion insists that the principles of the common law be complied with.

In denying that a court of justice is essential to the conception of law, it is not meant to maintain that a court of justice is not an appropriate and under present conditions an almost indispensable concomitant. The purpose is to state, without, however, submitting proof, that usages and customs, recognized and enforced in the mutual intercourse of nations, may be law, and, in stating that the institution of courts of justice is in itself an evolution, to show at once the possibility of creating an international court of justice for the interpretation and application of principles of international law, and by analogy to demonstrate the necessity of an international tribunal which will do for the nations of the world what national courts have done for the interpretation and application of the principles of municipal law, by determining controversies peaceably and judicially without a resort to force.

Without going into details, which would be necessary to establish the contention that courts of justice were unknown in primitive communities, it may be proper to consider the course of development within one jurisdiction which has profoundly influenced the world, and this particular example is cited inasmuch as it not merely illuminates the question, but shows unmistakably the transformation of arbitration into a judicial remedy requiring for its further development an international court of justice. It may be confidently asserted, on the authority of von Jhering, that in the early period of Roman history there did not exist institutions which, without a misuse of terms, could be called courts of justice, and it is also the fact that legal machinery for the interpretation and application of controversies arising between Roman citizens was wholly lacking. The first stage of development in which each member of the community redressed his wrongs had

evidently passed and a sentiment existed requiring an examination and determination of the question, before self-redress should step in to right the aggrieved. It was, therefore, the usage and custom of the community to require that the controversy should be submitted to a stranger, an arbiter who visited the strip of land whose possession was claimed. The parties in dispute bound themselves to submit the question to the arbiter and to comply with his decision. A failure to give effect to the decision or a refusal to submit the dispute to the arbiter allowed self-redress to assume its former role. It is a matter of history that the person chosen as arbiter was often the king, who by reason of his divine origin inspired confidence, or the pontifex maximus, whose superior wisdom appealed to the parties litigant. In any event the agreement to submit was contractual, the appointment of the arbiter was voluntary and his decision was enforced by the individual litigant, not by the power of the state. In the course of time the magistrate was a preferred person by reason of his standing in the community.

A special body was, therefore, designated from which the litigants should choose the arbiters or judges for the particular case as it arose. The submission was, however, by contract and the decision was the personal opinion of the judge, nor was it enforceable by the state. As evidence of the non-official character of the decision, von Jhering mentions the fact that there is no instance of a tribune interposing his veto to an execution of the arbitral sentence, or pronuntiatio, as it was called. It was only under the Empire that official courts were established with official judges, whose decrees were executed by the state. We thus see that there are three steps in the judicial development:

Ist. A contractual agreement to decide a controversy by arbiters chosen by the litigants;

2d. The appointment of a panel of competent persons, from which these judges should be chosen;

3d. The establishment of a permanent court when the Empire had become consolidated.

International arbitration has pursued unconsciously the

same course:

The formulation of a compromis-the compromissum of Roman law-submitting the case to the determination of the arbiter of the litigants' choice, king or pope;

2d. The creation of a panel of competent persons by the First Hague Conference in 1899, from which arbiters for a temporary tribunal for the decision of the controversy could be chosen; and now we stand upon the threshold of the third and crowning stage, namely, the establishment of a permanent