tries and where it will sit in an atmosphere in which there is a blending of the Latin and Anglo-Saxon ideals of justice and equity.

Thus we may make arbitration and the peaceful settlement of international disputes a principle of American politics, which will be subscribed to by all the chancellories and which will be guided by American public internationed law. By so doing we shall be able to have a court which is permanent and ready to sit and assume jurisdiction over such matters as are brought before it and which, instead of bearing the name of a modest capital beyond the seas, will be known as the permanent Pan American court of international arbitration.

The CHAIRMAN. The discussion of the topic before us will be continued by Mr. Jackson H. Ralston, of the bar of the District of Columbia. Mr. Ralston has been identified with arbitrations, especially involving American States, and he has won the highest distinction by his conduct in those affairs. I have great pleasure in presenting him.

THE ATTITUDE OF AMERICAN COUNTRIES TOWARD INTERNATIONAL ARBITRATION AND THE PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES.

By JACKSON H. RALSTON,

Of the Bar of Maryland and of the District of Columbia.

Under severe limitations as to the time limit of my address and limited in opportunities for its preparation because of the lateness of the date when the request reached me and pressure of business engagements, I am compelled to submit to you only a sketchy commentary upon the arbitrations in which the Americas have taken part.

From the organization of their respective governments, the nations of this hemisphere have shown more than a perfunctory devotion to the cause of international arbitration. As a result, in place of the scattering and imperfectly developed arbitrations marking the periods preceding the Jay treaty of 1794, the Americas have contributed largely to the working out of a judicial system of arbitration, increasingly logical in its arrangements.

As illustrative of the growth of arbitration south of us we may refer to the number of arbitral treaties in which the nations so placed have taken part. For instance, the Argentine Republic in 12; Bolivia, 15; Brazil, 23; Chile, 35; Colombia, 22; Costa Rica, 10; Dominican Republic, 5; Ecuador, 12; Guatemala, 9; Haiti, 10; Honduras, 8; Mexico, 15; Nicaragua, 11; Panama, 3; Paraguay, 3; Peru, 39; Salvador, 5; Uruguay, 1; Venezuela, 23.

WHY THE ARBITRAL PRINCIPLE IS STRONG AMONG THE AMERICAS.

It is a fair preliminary inquiry why arbitration has received among the Americas an extension never accorded it in Europe. It may be suggested that as to boundary questions, the disputes have related to uncertain lines distant from the centers of population, while those in charge of national affairs were perhaps but slightly concerned about the fate of stretches of country from which they did not hope to gain revenue or profit. Little, therefore, was lost in agreeing to arbitrate such questions. Nevertheless, as to this subject matter of arbitration the greatest difficulties have offered themselves, and there has

been a disposition to criticise the results of the arbitral inquiry. This was illustrated in the case of the United States by the disputes which arose over our northeastern boundary line, and has been more recently shown in the conduct of several South American countries. We must, therefore, look elsewhere for a satisfactory explanation.

LACK OF DISTINCTIVE FOREIGN POLICY.

I am disposed to believe that an important reason for our peculiar extension of arbitration has been the lack on the part of the several American nations of a distinctive foreign policy. Foreign policies are made up, roughly, of fear and avarice, sometimes strongly scented with altruism, but on analysis this largely proves, generally speaking, negligible. Happy is the nation whose only foreign policy is to treat honorably all associates in the family of nations. The American nations have not found it necessary to study how to gain political advantages at the expense of others, or to hold assumed advantages through doubtful means. They have had no past to live down, no revenges to satisfy, no international outrages to justify. It has therefore been possible for them to meet one another upon a common basis, recognizing between themselves, as among gentlemen, the obligations of courtesy, forbearance, and justice. So they have acknowledged that, with the best intentions upon their several parts, offense was possible, and have with little hesitancy agreed that any complaint of wrongdoing should be determined by an impartial tribunal.

These nations have considered themselves sovereign in the usual international sense—that is, within the radius of their own national action. They have not accepted the old European idea of sovereignty involved in the phrase that the king could do no wrong, or typified by the idea that he was anointed mystically from on high. Their dignity therefore in their mutual intercourse has been that which pertains to self-respecting peoples, and not one assumed because of mysterious Divine appointment. It has thus been easier for them to acknowledge the possibility of error than it could be for one assuming immediate per

sonal relations with the Almighty.

The wonder is not, then, that the Americas have forwarded the cause of International arbitration, but when we examine into it, it would be rather that more has not been accomplished in this direction.

MATTERS COMMONLY RESERVED FROM ARBITRATION.

When examining the North and South American arbitral treaties we are struck with the constant reservation from arbitration of questions which are considered to involve the vital interests, independence, or honor of the contracting States, and, as it is sometimes said, which affect third powers. The effect of this reservation is to render valueless the treaty containing it, except so far as, feeling themselves under some moral obligation, or for reasons of policy, the parties involved choose to give it efficacy. In other words, the disposition toward peace existing, exactly the same end could be accomplished without a treaty of arbitration as with it.

We say this because there is no question imaginable which may not be declared by one nation or the other to involve its honor, its independence, or its vital interests. To illustrate: The nation which is subjected to a charge of denial of justice may well declare, if it see fit, that such a suggestion constitutes a reflection upon its honor, and that the question of its existence is not a fit subject for arbitration. The nation whose territorial limits are alleged by another nation to be in doubt, may decline to arbitrate because such a proceeding would affect its independence or its vital interests.

The chief value, therefore, of such arbitral treaties, as we now refer to (and they constitute the most numerous ones), is a moral one, for their existence tends to shift the ground of discussion from the naked question as to whether arbitration should or should not exist to that of a consideration as to whether the clauses of exception have any particular force, and therefore whether arbitration is obligatory. This situation seems to have been recognized and a definite way of relief provided in but one treaty so far as I can discover, this, however, not being a treaty signed by an American nation. The treaty between Italy and Sweden of April 13, 1911, after making the usual exception with regard to independence, integrity, and vital interests (honor not being recognized as a ground of exception) provides that each party shall itself judge whether the difference affects its independence or integrity, but that if the question be raised as to whether the vital interests of one of the States are involved, and this becomes a subject of dispute, then this point of itself may be submitted to arbitration.

A form used many times, particularly in arbitration treaties between Spain and the Latin-American Republics, is more satisfactory with regard to exceptions in that it provides absolutely for the submission to arbitration of all controversies of whatever nature that for any cause may arise in so far as they do not affect the precepts of the constitution of either of the contracting States, and may not be resolvable by means of direct negotiations. While the language "precepts of the constitution" may not be as definite and clear as one could wish, nevertheless, it certainly does not include the larger part of the exceptions of honor and vital interests. We may, therefore, regard this particular form of arbitration as marking a distinct advance.

The greatest arbitral precedent of recent history and one which we may hope will be followed in the future, as in effect we shall see it has been by Central America, is that offered by the treaty between Italy and the Argentine, dated July 23, 1898, by virtue of which the high contracting parties obligated themselves to submit to arbitral judgment all controversies between them of whatever nature and relating to any difficulty that could arise during the duration of the treaty and for which they had been unable to obtain an amicable solution by direct negotiations. We are compelled to note, however, that Italy and the Argentine by the later treaty of December, 1907, apparently limited their former treaty by excepting, as has been done by a number of other countries above noted, difficulties relating to the constitutional provisions in effect in one or the other State, but providing absolutely for juridical arbitration of all differences as to the application of conventions concluded or to be concluded betwen contracting States, or which relate to the interpretation or application of a principle of international law. The arbitral treaties in which the Americas have been concerned have included almost every conceivable subject matter, internationally speaking, many of which, had the nations been so inclined, would have afforded a basis for war quite as valid as have ever come under the headings of honor, independence, or vital interests. There have been arbitrated, for instance, numberless boundary questions, claims for seizure of vessels, wrongful occupation of property, military acts, breaking of concessions and other contracts, disagreements involving interpretations of treaties, determination of the rights of nations under certain conditions to exercise control over the high seas, fisheries disputes, denial of justice, maritime captures, rights of neutrals, and an infinite variety of other subjects.

FORM AMERICAN ARBITRATIONS HAVE TAKEN.

The form which American arbitrations have taken has been various. In the beginning we have seen umpires chosen by lot, each of the contending parties nominating one of its own citizens or subjects. Later has come the naming of a foreign court or executive as the umpire, or the bestowal upon a foreign indifferent sovereign of the right to name the umpire. Again, the Judges suggested by either party on coming together have had the right to choose another as their presiding officer.

In some instances, as in boundary disputes, the commissioners, after determining the underlying principles, have left to subordinate technical commissions the formal duty of establishing boundary points. In one instance, that of the Alaska boundary, we find an extraordinary tribunal created, consisting of an equal number of representatives of the contending nations, who determined by a majority vote where justice lay.

ADHESIONS TO THE HAGUE CONVENTIONS.

In other different ways the North and South American nations have expressed their adhesion to the policy of arbitration. The first Hague convention was signed by the United States and Mexico; the second by these countries and the Argentine, Bolivia, Brazil, Chile, Colombia, Ecuador, Guatemala, Haiti, Nicaragua, Panama, Peru, Salvador, Uruguay, and Venezuela. The first case to be sent to The Hague Permanent Court of Arbitration was that of the Pious Fund between the United States and Mexico, followed shortly by the Venezuelan Preferential case, and later by others affecting South and North American countries. To the United States and Mexico belong the unique honor of opening The Hague Court, and their example as we see has met with repeated American approval.

CENTRAL AMERICAN COURT OF JUSTICE.

The frequent differences between Central American countries led to a Central American Peace Congress, held in Washington in November and December of 1907, the result of which was the signing of a convention providing for the establishment of a Central American court of justice. To this convention Costa Rica, Guatemala, Honduras, Nicaragua, and Salvador adhered. By its provisions the Central American Republics were bound to submit all controversies or questions which might arise among them, of whatsoever nature and no matter what their origin, in case the respective departments of foreign affairs should not have been able to reach an understanding.

The court was also authorized to take cognizance “of the questions which individuals of one Central American country may raise against any of the other contracting Governments, because of the violation of treaties or conventions, and other cases of an international character; no matter whether their own Government supports said claim or not; and provided that the remedies which the laws of the respective country provide against such violation shall have been exhausted or that denial of justice shall have been shown." It also gives jurisdiction over cases "arising between any of the Governments and individuals, when by common accord they are submitted to it," and to take cognizance "of any international question which by special agreement any one of the Central American Governments and a foreign Government may have determined to submit to it." Under this treaty a Central American court of justice was appointed, and a number of cases have been submitted and determined.

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UNACCEPTED UNITED STATES ARBITRAL TREATIES WITH FRANCE AND ENGLAND.

Certain arbitral propositions of a distinct character have been entered into to which the United States was a party and which deserve attention. In 1911, treaties identical in purpose were prepared between the United States, on the one hand, and France and Great Britain, on the other, which failed to go into effect by reason of the fact that because of amendments made by the Senate they did not receive presidential sanction. By the terms of these treaties differences not possible of adjustment by diplomacy "relating to international matters in which the high contracting parties are concerned by virtue of a claim of right made by one against the other under treaty or otherwise, and which are justiciable in their nature by reason of being susceptible of decision by the application of the principles of law or equity, shall be submitted to the permanent court of arbitration established at The Hague by the convention of October 18, 1907, or to some other arbitral tribunal as may be decided in each case by special agreement, which special agreement shall provide for the organization of such tribunal, if necessary, define the scope of the powers of the arbitrators, the question or questions at issue, and settle the terms of reference and the procedure thereunder."

The treaty further provided for the institution of a "joint high commission of inquiry to which, upon the request of either party, shall be referred for impartial and conscientious investigation any controversy between the parties within the scope of Article I, before such controversy has been submitted to arbitration, and also any other controversy hereafter arising between them, even if they are not agreed that it falls within the scope of Article I; provided, however, that such reference may be postponed until the expiration of one year after the date of the formal request therefor, in order to afford an opportunity for diplomatic discussion and adjustment of the questions in controversy, if either party desires such postponement."

The Senate struck out the following proviso:

It is further agreed, however, that in cases in which the parties disagree as to whether or not a difference is subject to arbitration under Article I of this treaty, that question shall be submitted to the joint high commission of inquiry; and if all or all but one of the members of the commission agree and report that such difference is within the scope of Article I, it shall be referred to arbitration in accordance with the provisions of this treaty.

The effect of striking out this proviso was, of course, to leave it to each of the contracting parties to determine whether a dispute was in its nature justiciable, and thus deprive the treaty of a large part of its operative value. It is to be added that the Senate at the same time, in connection with each treaty and as interpretative of it, voted to insert the following proviso:

Provided, That the Senate advises and consents to the ratification of the said treaty with the understanding to be made part of such ratification that the treaty does not authorize the submission to arbitration of any question which affects the admission of aliens into the United States, or the admission of aliens to the educational institutions of the several States, or the territorial integrity of the several States, or the United States, or concerning the question of the alleged indebtedness or moneyed obligation of any State of the United States, or any question which depends upon or involves the maintenance of the tradi tional attitude of the United States concerning American questions, commonly described as the Monroe Doctrine, or other purely governmental policy.

RECENT PEACE TREATIES.

Confirmatory of the general attitude of the Americas as to the peaceful solution of international difficulties is their conduct with regard to the Bryan peace