Page:Harvard Law Review Volume 32.djvu/866

830 830 HARVARD LAW REVIEW which they considered more sacred than those which bound them to the state. To get a court no member of which was related to eiither suitor was difl&cult, and to exclude every person who was connected by friendship or interest with one of them was hardly attempted. With the present reaction against everything savoring of diplo- macy, there is little reason to fear that parties to international dis- putes will be entrapped in technicalities. Yet, if such a danger exists, we find that the same objections might have been justly raised to the early courts of law. In all primitive courts the merits of the case had apparently little to do with the decision. Every- thing depended on technicahties; the slightest slip in the procedure was fatal. There was no inquiry into the facts except by the oaths of the parties, or by ordeal. Yet such a trial was felt to be prefer- able to private warfare. Pubhc opinion probably operated, more than now appears, to prevent false oaths and tricks of procedure; and these irrational ancient modes of trial were good, at least, for reaching the practical result of checking the desire to fight.^^ Not- withstanding glaring imperfections in the courts, few persons, from those early days to this, have proposed their complete abolition. The movement has always been in the direction of more law and more courts. It is noticeable that objections to the establishment of new courts liave usually come from the powerful.^^ No doubt in early times the man of great strength and skill in arms felt able to defend himself and avenge his injuries, without resort to the new-fangled devices of the law, with all their risks. So in international affairs, the greater our opinion of our ability to take care of our- selves the more critical our feeling will be toward any international union. The attitude of Germany before the war was an illustration of this tendency.^" The desire for some sort of league is probably more intense in small countries than among the subjects of the Great Powers; the small countries cannot fight, and need a league to secure their rights. Since the war, however, the subjects of the greatest nations are beginning to doubt the advantages of being left free to fight for whatever they may think their rights. ^* Thayer, Preliminary Treatise on Evidence, 10. " Selden Society, Court of Requests, pref., 15, 17.
 * ° MuiR, Nationalism and Internationalism, 185, 186.