Outlook. 82: 49-50. January 6, 1906.

International Arbitration. Walter J. Shepard.

One hears just now much talk about the extension of the jurisdiction of the Hague Tribunal for the settlement of international disputes; and some enthusiasts even predict the speedy elimination of war through this seemingly simple expedient. There is a surprising lack of penetration in most of the current discussion. Permit me to express a few facts which are almost always overlooked.

1. Courts are always constituted to apply existing law; or perhaps, in the absence of legislation, to expound existing law into new fields. This latter is always done in a tentative and conservative manner. Where the law is determined it is their sole function to apply it, entirely disregarding its righteousness or unrighteousness, its inherent applicability or inapplicability to the circumstances. It is never their duty to substitute one law for another, however expedient or necessary such a change

may appear.

2. The only law which can be applied by courts is the lex loci. Courts cannot apply the law of any other place, or general nebulous law. International law has validity in courts of law only as it has been incorporated into the law of the land. The Hague Tribunal, like all other courts, must apply the lex loci unless it is to exercise other functions which are certainly not judicial.

3. The law continually tends to become antiquated. New conditions and circumstances continually require new legislation to bring the law into harmony with the times. This must be true internationally as well as nationally. Moreover, while a continually developing law is everywhere necessary, courts are always and everywhere traditionally conservative. Ancient precedents, antiquated forms, mediæval usages, are the material which they use. Judicial bodies, by their very constitution, hark back to the past rather than prophetically forecast the future. Changed relations, new conditions, mean nothing to them, and can mean nothing, if they are to preserve their character as courts.

4. War is not analogous in its results to a court, and therefore cannot be superseded by a court. War does not apply existing law. It destroys one legal status and puts another in its place. It supersedes one law by another new law. It is legislative, not judicial, in character. One party in every war fights to maintain the legal status; the other always strives to supplant it by another, more in conformity with its desires or with changed conditions. All wars grow out of the dissatisfaction of one nation or people with the legal status existing in some definite place. This lex loci is brought in question by the war, and the effort is made to alter it. This may not always appear at first sight, but fundamentally it holds true. Even such minor wars as are nowadays threatened to enforce payment of debts upon SpanishAmerican States rest upon the dissatisfaction of the aggrieved power with the legal status prevailing in the territory of the offending nation. It is not true that there is no court to administer the law. The courts of Venezuela are open, and presumably apply Venezuelan law, the lex loci. Perhaps in cases in which foreigners are parties the decisions are not just, and the Hague courts might be expected to apply the law more impartially; but unless this body is to be something else than a court it must apply existing law, and the existing law of Venezuela.

5. The substitution of the Hague Tribunal for war, by unanimous consent of all nations, unless an international legislature were also provided, would result in far more serious injustice, misery, and evil than the present system of war. Without provision for the progressive development of law to meet the changing needs of the world, the application of law by any court, however distinguished and impartial, is the merest travesty of justice. In such quarrels as that of the United States with Spain, and of Japan with Russia, the verdicts would have been given in favor of the defendants, because they, in each case, stood upon the law. England could well afford to refer her dispute with her revolting colonies to the Hague Tribunal; German unity would never have been attained; South American republics would refuse to pay their debts with impunity; and

Turkey would continue forever successfully to invoke the august sanction of the law. Reverence for law may become insane apotheosis.

6. If war is ever to be abolished, it must be by the substitution of an international legislature rather than an international court. But such an international legislature implies a far greater integration of national units than we have yet attained. Racial, linguistic, religious, economic, social, as well as legal differences must be assimilated. It is because such an international legislature is for the indefinite future quite impracticable that the specious notion of a world court has gained such currency. When we have a world lawgiver, we may expect a world court, not before.

Atlantic Monthly. 78: 26-34. July, 1896.

Arbitration and our Relations with England. E. J. Phelps.

Compulsory arbitration is a contradiction in terms, since that process must necessarily take place through a voluntary agreement, incapable of application until the occasion for it arises. To agree to arbitrate future controversies is one thing; actually to arbitrate an existing controversy is quite another. It is manifest that there must be many cases, quite impossible to foresee, to which such an agreement would not apply, or would be, by one side or the other, repudiated as inapplicable, and the question whether the case is within the agreement would be likely to make more trouble than the case itself. It might almost as well be hoped to prevent disputes by agreeing beforehand that we will never have them,-a practicable method, undoubtedly, if it could only be settled at the same time to what disputes the agreement not to dispute should apply.

But arbitration will still be resorted to in the future, as it has been in the past, in that limited class of international cases where the questions involved are questions of fact, depending for decision upon evidence. Such cases, while they may be compromised, can never be determined except by some tribunal

which can hear the evidence, and so ascertain the truth; and sometimes they may be too important for compromise. Even in those cases this mode of trial encounters many obstacles. If the tribunal is composed, in whole or in part, of members appointed from the countries that are parties to the controversy, they cease to be judges, and become only representatives and opposing advocates. If it is made up of members from other countries, serious embarrassment arises out of the difficulty of obtaining those who are satisfactory; the foreign languages they speak; the systems of law and methods of legal thought, very different from ours, in which they are trained; the want of power in the court, under whatever exigencies, except that which is precisely conferred by the treaty, even so much as is necessary to enforce its own orders; and the lack of any system of procedure or rules of evidence such as in all other tribunals are found indispensable. These and other difficulties will be found quite sufficient to conduct those who have to deal with them to the conclusion that a court is not a court of justice which is only the creature of the parties litigant; and that, in order to be effectual, it must be invested with a larger and more independent authority than can be derived from their consent. But, grave as these obstacles are, and lessening, as they always must, the chances of a really just decision, they are nevertheless not insuperable, since what has been done before, however imperfectly, can be done again with no greater imperfection.

Beyond cases turning upon questions of fact, arbitration, however plausible in theory, is not likely to be found practicable. In cases involving questions of law, which means of course international law, it is not available. Such questions are necessarily new, for no tribunal is requisite to decide between nations those points in respect to which the law is already settled. Unlike a court of justice, which deals with municipal law and is empowered to extend its principles to every case of new impression, so that there can be no dispute too novel or too difficult to be decided, an arbitration cannot extend the rules of international law beyond what is already established, since those rules find their only sanction and authority in the general con

sent of nations. The inquiry in every case is, therefore, whether the proposition advanced has received such assent. If not, however just in itself, it is idle to expect arbitrators, empowered only by the agreement of two nations to decide a particular case, to take it upon themselves to enlarge the law of nations, and to add to its existing rules any new proposition; or in other words, to declare that to be law which is not law, and which they have no authority to make law. Hence no rule of law can be adopted by such a court unless it can be shown to have been previously acquiesced in; and arbitration can be useful in no case depending upon a question of international law, except those cases in which it will be unnecessary, since the point involved will have been already settled.

Nor can it be expected that any controversy whatever which involves national honor will be submitted to arbitration by any nation capable of self-vindication. The same considerations will likewise prevent the reference to such a tribunal of any dispute involving the integrity of the territory of a nation, which has been occupied by its subjects under a claim of right for any considerable period of time on the faith of their country's protection. And finally, it is obvious that in no case whatever can that remedy be successfully proposed, where popular feeling on the one side or the other has reached fighting heat, and has passed beyond the control of representative government. A casual review of the wars that have occurred in modern times between countries so governed, and of the conditions that preceded them, will show how utterly futile in such emergencies would have been, or would be likely to be hereafter, the attempt at the lingering and uncertain process of submitting to the decision of foreign jurists the quarrel that had set men's minds on fire. It will probably be apparent, therefore, to those who will reflect upon these suggestions, that it is a mistake to suppose that international arbitration can ever become, as has been fondly hoped, a substitute for war. On no such artificial and cumbrous contrivance can peace on earth and good will among men be made to depend. These reside in the temper of nations, not in the decision of courts.