Covenants Without the Sword questions in international law, becomes evident at once. The real question is not the abstract one of the Schools, but the practical one of the Rialto. Given this agreement, what sanction is to be put behind it? Or, given the Court, what sanction is to be put behind its decrees? Unless there is such effective sanction the difficulty is only removed one degree—it remains as formidable as ever. It is like the Hindu resting the world upon a tortoise, and the tortoise upon an elephant, and so on. I have already discussed some of the sanctions proposed, Bentham's "ban of Europe," Leone, Levi's "protest," etc. In the scheme of Messrs. Butler, Eaton and Brainerd, it is proposed that— "the chief executive of every other nation party hereto shall issue a proclamation de claring such hostilities, or failure, to be an infraction of this treaty, and at the end of thirty days thereafter the ports of the nations from which the proclamation proceeds shall be closed against the offending or defaulting nation, except upon condition that all vessels and goods coming from or belonging to any of its citizens shall, as a condition, be subjected to double the duties to which they would otherwise be subjected." Even if such an agreement could be obtained among the nations, and even if such a sanction fulfilled the international notion of justice, its performance would to a large degree, and certainly in many instances, be impossible or impracticable. Nations like Switzerland, Venezuela, Turkey, could not well close ports they do not have. Nations closing their ports, say, to England, Germany or France, would be cutting off their noses to spite their faces and be hurting themselves more than they hurt the guilty. Eng land, for example, could not possibly close her ports to the grain of the world. And as to double duties, they presuppose a tariff and assume that "the foreigner pays the tax." Consumers might object
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to punishing themselves for the others' wrongs by paying a larger price for imported necessities or luxuries. The difficulty of an effective sanction confesses itself in the very title of the Hague proposal: "A Permanent Court of Arbitral Justice." Given but per manency, with permanent salaried judges, who are "citizens of the world," with the Carnegie temple in which to meet, and a startled world to look on and applaud, and men are confident it will be a "Court." But what, pray, is this "arbitral justice" which they pro pose to administer? International law writers, as I have shown, are not at all agreed as to their conceptions of "jus tice" itself, and nations certainly and necessarily differ each and all. As to arbitration, the putative parent of this new form of justice, it, too, cuts rather a sorry figure in this disputatious world. I cannot, of course, here discuss the history of arbitration. Dabney reports 540 international arbitrations since 1794, and yet it has made very little of a place for itself. It has certainly won no such position in the juridical thought or the political scheme of our day as to entitle it to much respect as one of the insti tutions of civilization. Some famous international arbitrations there have been, to be sure. But most of them are so marred by blunders, prejudices, acri monious disputes, and even corruption, as to make them anything but an orderly administration of justice. Arbi tration rests on expediency rather than principle. It still partakes more of the nature of ordeal or wager of battle than of a judicial proceeding. It means prudent compromise rather than just judgment. Few arbitration awards rest on judicial grounds—they are generally compromises between conflicting inter ests. And this is true in spite of the fact that most disputes submitted to
