0 ! iluii trial Settlement nf Snternattnual disputes (She Itorosttg of a -permanent SFrtbmtal bg Ernest £fga Professor nf tt|c Sniuersttg. (Counselor of tl;e Court nf Appeals of Brussels, Member nf tfje Permanent Court of Arbitration NOVEMBER, 1910, No. 2 (With Supplement) Published Quarterly by American Society for Judicial Settlement of International Disputes. Eattiranre, U. B. A. KZ Entered as sei 4850 at the Postoffici inoe Act of July 16. •JOOO no.2 uly 11. 1910, d., under the ©fj? NmsBftg of o Permanent tribunal $g Eritfst $v T gs There is in Latin literature an admirable fragment, which played its part in the Middle Ages, and which has exercised a constant and beneficial influence upon the thoughtful. It is the dream of Publius Aemilianus Scipio, the younger. In it Marcus Tullius Cicero shows in highly poetical terms the majestic mission of law and politics, and the important role in the development of humanity played by the groups and communities — the ancient city 3 states — formed under the influence of laws. He was inspired by the theories of Plato and Aristotle, but was not satisfied merely to translate and copy. To Greek ideas he added the lessons taught by experience. He recalled the illustrious past of Rome; he showed him- self conscious of the glory which she was destined to acquire in future through her con- quest of the world. A Roman could not, however, form an idea of all the progress that humanity was destined to make in the domain of political organiza- tion. He grasped the idea of the vast single political community, but beyond that republic or that empire which should unite under its laws so many peoples and so many countries, he did not, he could not admit the peaceful existence of other republics, kingdoms and empires having in the eye of the law a situa- tion like that of Rome. It was impossible for him to rise to the concept of a family of nations, of a society of states, developing freely and at the same time fulfilling the obli- gations due to equals in their relations with 4 other nations. The Roman peace, pax romana, extended its reign only over those peoples who recognized the supremacy of the Eternal City. It stopped at the frontiers ; beyond them per- petual war was waged against those who were disdainfully called Barbarians. Centuries passed. A long night, sad and hopeless, extinguished the light of an antique civilization. But little by little light again began to shine, and humanity took up the task of reconstructing, under new forms, political societies. Going further than the ancient ideals, surpassing what had been accomplished by Greece and Rome, the cities, seigniories and kingdoms of the Middle Ages adopted gradually the idea of an international society, of a res publica Christiana, of a res Christiana, to employ terms used in that remote epoch. Constituted at first only in certain regions of the European continent, this society gradually extended the area of its action until it em- braced the whole of Europe. At the end of the XVXIIth century it took into its bosom the United States of America, which had bravely 5 won their independence. Still a little later, at the beginning of the XIXth century, it gathered in the numerous states of Central and South America. At that time it seemed in- clined to confine itself to Christian peoples; but in the middle of the XIXth century it con- ferred upon Turkey the benefit of membership, and in the latter years of the same century, no longer paying attention to differences of cult and religion, it opened its diplomatic confer- ences and congresses to all peoples and all races showing themselves disposed to observe the practices of modern civilization. Statistics furnish curious indications. When first formed — that is to say, during the Xllth and XHIth centuries of our era — this inter- national society numbered but a few millions. At the end of the XVth century the entire population of Europe numbered about fifty millions of people. In 1787 — that is to say, at about the time the United States made their accession, with approximately four millions of inhabitants — the entire European association did not exceed one hundred and forty-four 6 millions of human beings. And we are separ- ated from that period by only a century and a quarter ! In the course of modern civilization there have been events which, at first sight, appear as a manifestation of separatism and contrary to the formation of a universal international society. Such a case was the organization of a purely European system. In 1670 there appeared in London a very interesting work, entitled “A General Table of Europe, Repre- senting the Present and the Future State Thereof, from the Prophecies of the Three Late German Prophets, Kotterus, Christina and Drabicius.” It was attributed to the illustrious Johann Amos Comenius and con- tains the warmest praise of the Europe of that day, terming it “the most flourishing part of the universe, for empire, religion and learning, arts and arms, and all the high distinction of human kind.” * * * “As for the arts and sciences, inventions and improvements, she still carries it higher from all the rest, and they have now their reign and empire only in her 7 dominions, and that more glorious than ever. Asia, from whence they first came, must call her mistress, and haughty China herself sub- mits now to be her disciple.” The solemn treaties of peace entered into at the beginning of the XVIIIth century dealt with the safety, equilibrium and general interest of Europe. At the same period Charles-Irenee Castel de Saint-Pierre tried to organize the “Corps europeen.” About the middle of the century Jean-Jacques Rousseau undertook to set forth the causes which gave birth to the “Societe des peuples de l’Europe.” He asserted that Europe was a real society which had “its religion, its manners, its customs, and even its laws, from which none of the people who com- pose it can swerve without at once causing disturbances.” The New World, too, at certain periods of its history, has seemed to favor a policy of isolation. The doctrine which President James Monroe proclaimed in his message of 1823 has been long thus interpreted. Instance also the Pan-American Conferences of the end of the 8 XIXth century and the beginning of the XXth century. Even now there is sometimes heard the slogan of “Asia for the Asiatics” or “Africa for the Africans.” Is it necessary to suggest that the magnifi- cent idea of a universal society of states is far superior to all movements which would con- stitute associations restricted to a single con- tinent? Happily the society of states is learn- ing to foregather. One of these great re- unions, the First Hague Conference (1899), was attended by the delegates of 26 Powers. The Second Hague Conference (1907) was composed of delegates from 43 Powers. A most important meeting, the Naval Conference of London of 1908 and 1909, brought together the representatives of ten Maritime Powers, among which were the United States, an American Power, and Japan, an Asiatic Power. Is it necessary to add that even in our days the Society of States is still without complete regulations? Nevertheless it has come into 9 being, and is active. It unites its members by manifold treaties, conventions, agreements. It is being perfected every day. Many of its interests — commerce, industry, railroads and maritime routes — are secured and guaranteed. Measures are taken for the settlement of dif- ferences by amicable means. Uniform regu- lations control the conduct of war, that last vestige of the strange ideas revered in the earlier ages of mankind, and according to which force decides the justice of a cause. For several centuries, at successive stages of civilization, thinkers, philosophers and jurists have raised their voices for, and even pro- claimed the necessity of, some better means of assuring the existence of the Society of Nations. This was done by Francois de Vitoria in the first half of the XVI century, by Francesco Suarez at the beginning of the century; by Hugo Grotius in his immortal work, “De jure belli ac pads,” published in 1625. About the middle of the XVIIIth cen- tury these ideas took a more definite shape, and Christian von Wolff taught that nature 10 itself formed a sort of society among nations. “Ipsa natura societatem quamdam inter gentes instituit.” He asserted that this society ap- peared to be bound by a quasi-convention: “Ut quasi pacto contracta videtur.” It is “the great civil society, Civitas maxima, of which all nations, and in a certain way the citizens also, are members.” He who speaks of society speaks of law: Ubi societas, ibi jus. Obligations arise, rights spring up. But the fundamental problem is to induce the members of the society to fulfill their duties and to furnish them with the means of vindicating their rights. That brute force cannot serve to adjust differences, that the horrible evils of war can never be offset by the momentary triumph of the victor, that the fratricidal struggles of the peoples retard, if they do not arrest for long periods of time, the majestic march of civilization — this conviction has for centuries been shared by the most generous minds. But the problem appeared surrounded by unsurmountable difficulties. Two solutions were possible, arbitration and ii a judicial tribunal regularly composed. Arbi- tration is a decision rendered by men chosen by both sides to settle differences. The per- manent judicial tribunal is a body of compe- tent men invested with jurisdiction by common consent and performing its duties by virtue of its mandate to declare the law. From the standpoint of pure reason, the tribunal must prevail over arbitration. The application of the legal rule, the eventual enquiry into the principles of equity, the interpretation of texts formulated and decreed, does not all this con- stitute, in the words of Marcus Tullius Cicero, a work royal above all other? “Nihil esse tarn regale,” wrote the illustrious Roman, “quam explanationem aequitatis in qua juris erat interpretation From the standpoint of history, even within the political community, arbitration is anterior to judicial organization, properly so called; in other words, arbitration precedes permanent tribunals. Among a great number of peoples there existed for a long time the idea of the re- ligious origin of law, of the necessity of mag- 12 ical practices to enforce it, and of the judicial oracle. On the other hand, the decision of dif- ferences and conflicts was not in ancient times confided to magistrates holding their office by- public authority, but to arbitrators chosen by the parties. In municipal law arbitration has finally given way to a stable organization, and has become the exception, whereas the regular tribunal has become the rule. Nevertheless, the right to have recourse to arbitrators has been proclaimed in most countries, although arbitration has often changed its character, and in order to be given effect the arbitral award must be accompanied by an order of execution granted by the ordinary judge. Above all there has been great diversity of practice. Thus, in the Italian Republics of the Middle Ages, arbitra- tion gained the upper hand at certain periods, and even became obligatory to the point that recourse to the ordinary judge was sometimes forbidden, or even to the point of the aboli- tion of the ordinary jurisdiction. Again, in France, during the revolution at the end of 13 the XVIIIth century, the National Convention substituted for regular judges public arbi- trators chosen by electoral assemblies and who assumed jurisdiction of cases which had not been settled by private arbitrators or by jus- tices of the peace. At various epochs and in more than one country has there developed distrust of the judiciary, which was reproached with having become the pliable tool of tyranny and despotism. Sometimes, too, religious senti- ment inspired actual contempt of the stable organization. To the judge was preferred the minister of religion, as was the case in Massa- chusetts, where two centuries and a half ago the laws of Moses were accepted as the basis of the social organization, and in case of doubt, their interpretation was left to the Puri- tan ministers. To this sentiment was allied the disfavor attached to all men who were stu- dents or practitioners of law. The “mer- cenary” lawyer — that is to say, one who was paid for his services — was formerly excluded from the Virginia Assembly, and the same re- buke was administered in other colonies. 14 When the Society of Nations was first form- ing, that is to say, in the Xllth and Xlllth centuries of our era, arbitration was used as a means of settling differences arising between republics, princes and kings. Many of the matters so settled were not ques- tions of international law as that term is un- derstood in our day ; often, in fact, public and private interests were very closely allied or were even confounded with each other. Yet the cases were frequent where the disputants called upon a sovereign, a jurist or a high ecclesiastic for a decision, or appealed to a uni- versity professor or a court of justice, sitting, it should be remarked, as an arbitral commis- sion and not as a tribunal of judges properly so-called. Recourse to arbitration was advocated by writers also. At the beginning of the XVIth century, to cite but a single instance, Erasmus recommended to the rulers, in the Institutio Principis, never to engage in warfare with a light heart and always to propose arbitration before resorting to arms. 15 It must be confessed, however, that arbitra- tion has always been and still is attended with serious defects. In the history of the law among all peoples, it is quite clear that the diffi- culty from the beginning has always been to get the adversary before him who was to judge the case. Arbitration, from this point of view, naturally offers much greater difficulties than a judicial tribunal, no matter how imperfect the organization of the latter. Then, too, the power of the arbitrator is very questionable and very much questioned. In classical Roman law the contravening party was exposed to a demand for the payment of the penalty fixed by the compromise only, or to a demand for damages. It is not until the time of Justinian that an effect analogous to that of judgment is accorded to the arbitral award when expressly accepted by the parties. The Italian jurists of the Middle Ages denied to the arbitrators real jurisdiction, juris dictio. In fact, jurisdiction emanates from sovereignty; it is the dual right of hearing and terminating a suit by judgment. The Italian jurists accorded 16 to arbitrators simply the notio, examination in justice, and stated that after enquiry they could render a definitio, a decision, but that they had neither coercitio — that is to say, the right to impose penalties — nor executio, which consists in the use of public force for the execution of a judgment. Another cause of weakness in arbitration was found and is still found in the difficulty of correcting awards open to suspicion or which manifestly bear within themselves the proof of error. Arbitration as correctly con- ceived does not admit of appeal. The only remedy lies in again appealing to the same ar- bitrators. In order to justify appeal from an arbitral award to a regular court of justice, it is necessary to modify the character of the award by requiring — as is provided in some in- stances by legislative act — that it be given executory force by a tribunal or a magistrate, in which case it assumes the nature and char- acter of a judgment. These considerations explain why, in ad- dition to and alongside of arbitration and the 17 plans for the judicial organization of the So- ciety of States by means of arbitration, a vast movement was started in favor of a judicial system — that is to say, of a court of justice which would be accessible to all the states and into which disputants may be haled. Arbitration and Court of Justice have each had their defenders. Arbitration has won its way on the international field; for not only have the treaties which provided for the sub- mission of future disputes to arbitration been numerous, but numerous also have been the cases to which arbitration has been actually applied. Furthermore, on two solemn occa- sions there was voted at The Hague the or- ganization of a permanent court of arbitration, first by 26 states and second by 43 states, and this permanent court is in active and useful being. As early as 1623, in the Nouveau Cynee, a French writer, Emeric Cruce, set forth the ad- vantages which would be derived from the establishment at Venice of a great council, in which all the princes and all the great repub- 18 lies should be perpetually represented by their ambassadors, in order that the differences which might arise could be adjusted by the en- tire assembly. In 1660 a German Prince, the Landgrave Ernest of Hesse-Rheinfels, drafted a project for the establishment of a tribunal of the Society of Catholic Sovereigns, which was to sit at Luzerne. Among the writings of Wil- liam Penn, published in 1693, there is one en- titled “Essay toward the Present and Future Peace of Europe by the establishment of an European Dyet, Parliament or Estates.” In it he discusses the question of a European Diet which should have power to legislate, deliber- ate and adjudge. The first great organization was created by article 9 of the Articles of Confederation and Union voted by the Congress of the United States on the 9th of July, 1778, which provides a system of arbitration for the States of the Union. James Brown Scott has traced the history of the application of this constitutional provision.* *The Hague Peace Conferences of 1899 and 1907, Vol. I, pp. 460-464. 19 The Congress of Panama of 1826, in which Mexico, Central America, Colombia and Peru were represented, declared for the amicable composition of all differences and, eventually, their determination by a general assembly of the plenipotentiaries, which was to meet every two years. As we have seen, the Permanent Court of Arbitration was organized in Europe in 1899 by the first Hague Conference. It was, how- ever, open to the criticism of being nothing more than a list of arbitrators. Yet it has sat in judgment on several occasions and rendered important services in the cause of peace. In 1907 the court was again approved and its do- main considerably extended, since, as we have already said, 43 states were represented at the Second Conference at The Hague. The struggle for the establishment of a court of justice, or a real tribunal composed of judges by profession, has not, however, been aban- doned. In 1899, at the First Hague Conference, the Government of the United States of America 20 made a determined if vain effort to secure its establishment. In the domain of pure science various proj- ects were drafted in the course of the twen- tieth century, in which the judicial power of the society of nations was described, its at- tributes clearly defined and measures con- sidered which would assure the permanency and stability of its organization. Among the authors of these projects may be mentioned James Lorimer, of Edinburgh, and Johann Caspar Bluntschli, of Heidelberg. In the field of practice it was the delegation of the United States to the First Hague Conference (i8gg) which rendered the greatest assist- ance to the cause. It proposed the negotia- tion of a general treaty by virtue of which a tribunal should be formed, whose members, competent in matters of international law, should be appointed by the signatory states, and in which each state should have a repre- sentative upon the tribunal. This project was not adopted, but in igo 7 a more forceful at- tempt was made. The delegation of the 21 United States had received positive instruc- tions. The Secretary of State, the eminent Elihu Root, pointed out in special instructions the defects of arbitration. He expressed the opinion that it was possible to “apprehend that the arbitrations might not be impartial,” and added: “It has been a very general practice of arbitrators to act not as judges deciding ques- tions of fact and law upon the record before them under a sense of judicial responsibility, but as negotiators effecting settlements of the questions brought before them in accordance with the traditions and usages and subject to all the considerations and influences which af- fect diplomatic agents.”* The project of the court was based upon these general lines which the American delegates, Joseph H. Choate and James Brown Scott, eloquently advocated and defended in the Conference. “The court pro- posed by the American Delegation was to be a court in the technical sense of the word, com- posed of judges who had had experience in the practice and interpretation of law, and there- * Scott’s Hague Conferences of 1899 and 1907, Vol. I, p. 440. 22 fore were competent to decide difficulties pre- sented to them ‘by judicial methods and under a sense of judicial responsibility.’ The judges were not to be selected from any group of countries, but chosen in such a way that the different systems of law and procedure, as well as the principal languages of the world, might be fairly represented. The proposed court, however, was not in- tended to supplant the permanent court of ar- bitration of 1899.”* Although the court was adopted in principle, the project as such was not voted. Its failure was due to the fact that an agreement could not be reached upon the method of appointing the judges and upon the representation to be accorded to each of the states represented at the Conference. Never- theless, so many substantial reasons were ad- vanced in the discussion that the initiative of the United States was attended with the most felicitous results ; for in law as well as in logic the cause of a real court of justice — that is to say, of a technical court — was won. Moreover, *Scott’s Hague Conferences of 1899 and 1907, Vol. I, p.]441. 23 a compensation was obtained by the adoption of a project or convention creating an interna- tional prize court. A correct estimate was placed upon it by James Brown Scott, who says: “Its adoption by the conference was a great step in advance, although it should fail of ratification. It is the first step toward the development of an international judicial sys- tem.”* The jurisdiction of the prize court may, it should not be forgotten, be enlarged without serious difficulties; it requires only the will of the states creating it. It should be re- called in this connection that in an article in this series, the eminent Simeon E. Baldwin has already stated that “in 1908 the Central Amer- ican States inaugurated the Central American Court of Justice, with a permanent seat at Cartago. By treaty the five states are bound to submit to the judgment of this tribunal all controversies or questions among them of whatsoever nature.” *Scott’s Hague Conferences, 1899 and 1907, Vol. I, p. 465. 24 These facts and occurrences are full of com- fort. The attempts have not been vain. The efforts have not been useless. The realization of the project has begun. It is only necessary to persevere ; the triumph is assured. Arbitra- tion will not cease to be resorted to. It should not disappear. Recourse to it will be free, but alongside of the instrumentality furnished by the existing permanent court, international so- ciety will possess a perfected instrumentality, a real judicial tribunal composed of jurists versed in international law, which will derive from the very fact of its creation and from its raison d’etre, its jurisdiction and its mission to declare the law. Arbitration is beset with various difficul- ties. There is the difficulty of bringing the parties in controversy before the arbitrator; the tendency on the part of the arbitrator, alike in private as well as in international law, to consider himself obliged to deal tenderly with the interests of the parties by whom he was designated ; the regrettable tendency to dispose 25 of the litigation by means of a compromise, to act as a diplomat and not as a judge; the im- possibility of creating a system of jurispru- dence based upon an unbroken series of con- sistent decisions, and the consequent difficulty of developing law by successive decisions, and the insuperable obstacles which almost invari- ably stand in the way of revising sentences vitiated by essential error or other substantial defects. On all these points the experience of recent years has been conclusive. The sole remedy is the creation of a technical tribunal in which jurists will take their places, where the same line of judgment will necessarily con- trol and decide similar cases, thus enriching the jurisprudence of international law, and where an appeal will correct errors of judg- ment which may have crept in the judgment of first instance. In a word, the outcome of all these efforts is free from doubt. In the domain of private law, organized justice succeeded arbitration, and so it must in the domain of international law. As 26 a European lawyer, passionately devoted to the study of the law of nations, I address myself to the citizens of the United States and implore them to continue the struggle in favor of a technical international court. Few countries have rendered to the law of nations as great services as the United States or exercised such a beneficent influence: the movement in favor of arbitration, the recognition of the rights of neutrals, the plea for inviolability of private property in maritime warfare, amelioration of the practices of war, to mention only a few instances. Another service rendered by the United States is not sufficiently appreciated, namely, the promulgation by President Lincoln of “The Instructions for the Government of Armies of the United States in the Field,” drawn up by Francis Lieber. They have exer- cised a powerful influence upon the entire v/orld, for they were the basis of the work of the Conference of Brussels in 1874, and through this conference became the fundamental text of the conventions concerning the laws of war 27 adopted by the Hague Conferences of 1899 and 1907. May the United States persevere in its endeavor to organize a truly international tribunal, for in so doing it will acquire a new claim to the gratitude of the civilized world. 28 American &nrirtg fnr 3ttMrial grttlcmcnl nf Slntrrnutixmal Disputes. ©ffirrra Honorary President, William Howard Taft. President, James Brown Scott, Washington, D. C. Vice-President, John Hays Hammond, Washington, D. C. Secretary, Theodore Marburg, Baltimore, Md. Treasurer, J. G. Schmidlapp, Cincinnati, O. Life membership, $100; Sustaining membership, $10 a year; Annual membership, $i a year. Remit to treasurer, J. G. Schmidlapp, Cincinnati, U. S. A. Address inquiries to secretary, Theodore Marburg, Baltimore, U. S. A. The proceedings of the “Judicial Settlement” Conference at Wash- ington, December 15-17, 1910, will be printed in English, French, German and Spanish. Each member of the Society will be entitled to one copy. Non-members may procure them by remitting the price. One Dollar, to TUNSTALL SMITH, Assistant Secretary , The Preston, Baltimore, U. S. A. American H'nmltj for Suhtrial ©eltlrmrttt nf 3nternatixmal DicpiUrs. Abuiaorij (Snunril Lyman Abbott, New York. Edwin A. Alderman, Virginia. James B. Angell, Michigan. Simeon E. Baldwin, Connecticut. Richard Bartholdt, Missouri. Alexander Graham Bell, Washington, D. C. R. L. Borden, Ottawa, Out. Theodore E. Burton, Ohio. Joaquin D. Casasus, Mexico City, Mexico. George E. Chamberlain, Oregon. Winston Churchill, New Hampshire. George B. Cutten, Wolfville, N. S. William R. Day, Ohio. Jacob M. Dickinson. Washington, D. C. Andrew S. Draper, New York. Charles W. Eliot, Massachusetts. Charles E. Fenner, Louisiana. William Dudley Foulke, Indiana. James Cardinal Gibbons, Maryland. George Gray, Delaware. Charles Noble Gregory, Iowa. Peter S. Grosscup, Illinois. Joseph F. Johnston, Alabama. David Starr Jordan, California. Harry Pratt Judson, Illinois. William H. King, Utah. George W. Kirchwey, New York. Philander C. Knox, Washington, D. C. - Charles F. Libby, Maine. Francis B. Loomis, Washington, D. C. Horace H. Lurton. Tennessee. R. McBride, Victoria, B. C. Pablo Macedo, Mexico City, Mexico. Charles Marcil, Ottawa, Ont. Sidney E. Mezes, Texas. S. C. Mitchell, South Carolina. Francis G. Newlands, Nevada. L. Oppeniieim, Cambridge, England. Thomas Nelson Page, Washington, D. C. Walter H. Page, New York. W. Peterson, Montreal. Sir Thomas Raleigh, London. England. Whitelaw Reid, London, England. William Renwick Riddell, Toronto, Ont. Uriah M. Rose, Arkansas. A. C. Rutherford, Edmonton, Alberta. W alter Scott, Regina, Saskatchewan. Albert Shaw, New York. Hoke Smith, Georgia. Bishop Robert Strange, North Carolina. Sir Charles Hibbert Tupper, Vancouver, B. C. George Turner, Washington. Charles R. Van Hise, Wisconsin. Benjamin Ide Wheeler, California. William Allen White, Kansas. George G. Wilson, Rhode Island. Prince de Cassano, Italy. e « d ■AO \ it' \ \ S' X 5? 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