MR. ULYSSES S. LESH: As I was of counsel on the opposite side in that case, and know that the original judgment affirming the judgment below was correct, and that the gentleman who wrote the opinion was justified in the course that he took (laughter), I, therefore, am opposed to this motion, and for the further reason that it seems to me that it is a kind of child's play to say or insinuate that the court permitted one judge to write an opinion which is contrary to the opinion of the other judges and permitted him to announce it as the judgment of the court. If he will not write an opinion that will reach the judgment of the court, they have the power to allow another judge to write it, and I know that the particular case the gentleman referred to is one where the court fully concurred in the original opinion.

MR. WILLIAM A. KETCHAM: Mr. Chairman, we have heard the views of the opposing counsel on both sides, but as to what member was involved we are in entire ignorance. However, as I see two of the learned judges present who adorned the bench about the time the gentleman's case was decided, we would be glad to hear which one of them was guilty of the act charged.

The question being called for, the motion was adopted.

A division being called for, the secretary announced the result of the vote as follows:

Ayes, 19; noes, 5.

The president declared the resolution adopted.

THE PRESIDENT: That completes our business for the afternoon. The association will stand adjourned until to-morrow morning at ten o'clock.

MORNING SESSION.

WEDNESDAY, July 9, 1902.

THE PRESIDENT: The association will come to order.

We have with us this morning Judge William L. Penfield. You all know him and he needs no extended introduction at my hands.

SOME DIFFICULTIES OF PAN-AMERICAN ARBITRATION.

BY WILLIAM L. PENFIELD

I

Of the sixty-four international arbitrations to which the United States has been a party, thirty-three, or a little more than onehalf, have been with the other nations of this hemisphere. With an exception growing out of the war with Mexico, all of these arbitrations originated in claims arising during a state of profound peace between the United States and other American states. Of these thirty-three arbitrations, ten, or nearly one-third, are still pending, or have been determined since the first inauguration of President McKinley. The awards recovered during the last five years by the United States against other American states amount to nearly $1,000,000, to which is to be added the further sum of nearly one-half million which has been collected from them during this period, by diplomatic methods, short of arbitration. It may be said without exaggeration that the chief concern of the diplomacy of the United States with the sister republics to the south is the protection of American investments.

These facts serve to indicate the rapid extension of American enterprise in the southern republics, and some of the hazards.

thereby incurred, as well as the increasing perplexity of the question of the protection of those interests and the growing importance of the problem of Pan-American arbitration.

II.

The maintenance of the Monroe doctrine, on the one hand, and, on the other, the pursuit of a just and magnanimous policy towards the other American states, will ever be among the chief aims of the policy of the United States. The Monroe doctrine is now pretty clearly defined and generally accepted by all nations; but the aggressive commercial policy of certain European states, and their vigorous protection of the rights and interests of their subjects abroad, raises the problem whether it is wiser for the United States to pursue the ancient policy of diplomatic and even armed intervention, or, abandoning that policy, to resort to international arbitration as the permanent mode of settling controversies of that character. If the United States adopts the latter course, it is not improbable that it would operate temporarily to the detriment of the United States in comparison with those European states, who, having the power, do not hesitate to exercise it for the protection of their nationals.

While it is a general rule that one government will not intervene with another to secure indemnity for denials of justice until all legal remedies have been exhausted before the local tribunals, the rule is not inflexible. It is generally observed between highly civilized states having a pure, independent and stable administration of justice. But it is a rule of good faith and implies that the local tribunals are free from executive interference and administer impartial justice, irrespective of the nationality of the parties or of the nature of the controversy.

The serious question then is: Shall the government of the

United States abandon the protection of the personal and property rights of its citizens in foreign lands? If so, what will be the effect on our expanding commerce? Or shall the government by the military arm enforce the claims of its citizens? Or shall it resort to permanent arbitration If in the near or distant future, an American question-another Cuban question-is to arise, it is no other than this question which is fraught with that momentous peril.

The method of settlement of these claims by judicial process is fast growing in favor with enlightened public opinion; and the impressive example of the great republic adopting this established recourse against the weaker states, and the proofs thereby given of her sincere respect and consideration for her sister republics, will, in the end-it is argued and believed-create a confiding reciprocal friendship favorable to the growth of our commercial and other relations with them.

The difficulties inherent in the permanent adoption of this method, which are many and great, chiefly lie in the composition of the tribunal.

There are, including the republics of Haiti, San Domingo, and Cuba, twenty American states, of which one is Anglo-Saxon, one Franco-American, one Portuguese-American, and seventeen Spanish-American.

A scheme of Pan-American arbitration would appear on its face to contemplate the creation of a tribunal composed wholly of Americans. How difficult this is, under existing conditions and having regard solely to the interests of justice, as we understand that term, will appear when we attempt to create the tribunal. Inasmuch as all states are, from the view-point of international law, equal in independence, dignity and sovereignty, all of the states have an equal right of representation on such a tribunal. And if the tribunal is constituted in the ideal manner,

by excluding as arbitrators in a given case the citizens of the litigant states, on the ground of their interest as such in upholding the honor of their government, it would follow that all claims of citizens of the United States would be heard and determined by arbitrators selected solely from the other American states. How this might work will appear from the following facts:

During the period which has elapsed since March 4, 1897, there have been made to the department of state only seven complaints of denials of justice against European states-one in Spain, which has not been passed on; two in the German Empire, one in Italy, one in France, and two in Austro-Hungary-all of which, upon investigation, have appeared to be unfounded.

Yet during this period the business of this character before the department has more than doubled in comparison with that of any previous equal period. This is due in part to the rapid extension of our commerce and the increasing investment of American capital in other American states. It is not due to their laws, which, except those in relation to foreigners, are generally excellent. It is due above all things to the condition of chronic revolution from which some of them unfortunately suffer.

The necessities of insurgent leaders, the precarious tenure of office of the chief of the state, and his prevision of the rainy day sufficiently suggest why the large majority of these claims of United States citizens originate in the arbitrary acts of successful revolutionary leaders or of the military or civil authorities of the titular government.

During this period, there have been, all told, less than a half dozen complaints made by foreign governments of denials of justice in the United States; and not one has been sustained, upon full investigation, except in three cases of mob violence. No complaint has been made to the department during this period of the arbitrary arrest and imprisonment of aliens or of the unlawful