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tory; while in modern practice, there are so many indirect ways of enforcing an award by legal process, that, generally speaking, all awards, properly and fairly made, may be said to have legal sanction.
Paradoxical, then, as it may seem, there is such a thing as compulsory arbitration. It was known to the English law more than three centuries ago; for there were arbitrations of important cases by "rule of court,” prior to the first statute on the subject under William III. ; and since that time there have been long series of statutes, whereby the cases that may or must be referred to arbitration have been so multiplied that a bare enumeration of them would be tedious. Indeed, all cases are now referable to arbitration, save only such as arise out of the administration of the criminal law, or out of agreements and transactions against public policy; and even in some of these, where there is a remedy by civil action as well as by indictment, a reference of the matter in dispute has been held to be good, and the award sustained by legal action.
The same general principle permeates our whole American system of jurisprudence. The old English common law, and the principle of arbitration as part of that law, prevailed in each of the thirteen colonies; and it prevails to-day, in each of the original states of our federal Union, except where it has been modified or repealed by statute. Even by legislative enactments in some of the states, as, for instance, in Pennsylvania, as early as 1705, compulsory arbitration was extended to a class of cases hitherto unknown to the laws of England; and by the present civil codes of all the states, with, possibly, one or two exceptions, every matter of controversy, whether in suit or otherwise, may be referred to arbitration. And whether the reference be by agreement between the parties
themslves, or any rule of court, the award generally has some form of legal sanction. By the Revised Statutes of the United States, all civil controversies are referable to arbitration; and in pagan and Mohammedan countries, where, by treaty, our ministers and consuls exercise judicial functions, arbitration of private disputes is often made compulsory.
The application of the principle of arbitration to disputes between nations, although a logical sequence of advanced civilization, is of more recent origin. One hundred and seventeen years ago, when Robert R. Livingston, of New York, first suggested it as a rational substitute for war, and predicted that the example of it then being made by two of the New England states in the adjustment of their boundary dispute, would soon become general, the idea was ridiculed as being too visionary and impracticable to merit serious consideration.
And yet, what do we see to-day? When two governments disagree, either as to the validity or amount of a claim by one against the other, the first thing usually proposed is arbitration, which is generally accepted. The natural and appropriate method of settling all such differences is now almost universally acknowledged to be by mixed commission or by an umpire. Where there are reciprocal claims and set offs, it is now a rule in the practice of nations to refer the whole to an arbitral commission. Even the higher and more vital class of international disputes, such as relate to boundaries, to the interpretation of treaties, to title by prescription, and to other issues involving intricate and delicate questions of public law, are now generally referred to a joint commission of jurists.
All this is of modern origin. It has come about within the past hundred years. For, prior to the opening of the nineteenth century, there had hardly been a single instance of international arbitration worthy of the name. Since then, however, there have been about one hundred and twenty, or an average of one and one-tenth for every year; and to more than half of these the United States has been a party. The sixteen Latin-American states have been parties to about twenty-five. England, as the leader of the movement in Europe, has been a party to about thirtytwo. The Pan-American Conference of 1890 went a step farther, and recommended that international arbitration be adopted as “a principle of American public law," and made compulsory in all cases except only in controversies involving national independence. Only these last were to remain optional.
Since then the proposition has been advanced, by the two great English-speaking nations of the world, to establish a permanent international court of arbitration for the adjudication of all disputes between them, and that its decision be enforced by both. This broad principle was soon afterwards embodied in the draft of a treaty between the United States and England, in 1897. The treaty failed of ratification by the United States Senate only because it had been hastily and unskilfully drawn, and was thought to be crude and faulty in form. The principle itself was not controverted.
But how shall a permanent court of international arbitration be established; and how shall its sentences be enforced without war? The questions are recognized as presenting many difficulties; and yet they are not more difficult than those which were presented in the original project of our own federal Constitution. It will be recalled to mind by those familiar with the discussions pending the final adoption of the Constitution, that some of the ablest and most experienced statesmen of that time considered it practically impossible to establish such a compact as would reconcile local or state sovereignty with national solidarity and supremacy; and it was thought still more impracticable to attempt to establish a great inter-state tribunal which should have cognizance of all cases of controversy between the state and federal governments, between the citizens of the different states, and between the states themselves. Nevertheless, all
. this was successfully accomplished; and although that great tribunal -- the Supreme Court of the United States — in the exercise of its constitutional functions, has frequently set aside legislative enactments, state and federal, its decisions have been uniformly respected, and the court itself recognized as the highest authority in the land.
In the light of such a conspicuous example, and of subsequent experiences attesting the utility of international arbitration, the project of a permanent international tribunal ought not to be prejudged as visionary and impracticable. Such a tribunal could be established by treaty between some two or more of the leading nations of the world, as, for instance, between England, Germany, and the United States. If the experiment should prove satisfactory, other civilized nations would very soon come into the arrangement; and the mere fact of the existence of such a tribunal, to which all irreconcilable differences might be referred for impartial adjudication, would make an appeal to arms less justifiable, and therefore more difficult. It would afford the contending parties more time for mature reflection, put them under the restraint of enlightened public opinion, cause them to act less from passion and the impulse of the moment, and, in the
majority of cases, prevent war. Even if, at first, the tribunal should fail of complete success,
as did the Supreme Court of the United States during the first months of its existence, public sentiment would soon grow up to its requirements, and would ultimately support and enforce its decisions; and thus would be realized the very highest ideal of modern Christian civilization.