ARBITRATION WITH AMERICA.
IT is a pity that the discussion in the House on Friday week got labelled "International Arbitration," for in reality it had very little to do with that Utopian fad. What the House was asked by Mr. Cremer and Sir John Lubbock to consider was something much narrower and more practical,—namely, the best means of securing that differences of opinion between the two great divisions of the English kin should be settled by arbitration, and not, as in the case of foreign Powers, be left to the arbitrament of the sword. With International Arbitration we con- fess to having comparatively little sympathy. If nations mean to fight, nothing will prevent their so doing, and agreements to arbitrate will be of very little service. The suggestion of an agreement between England and the United States to establish a permanent machinery for regulating their disputes is, however, quite different. Nations in whom the same racial characteristics are to be found, who are influenced by the same ideas, who talk the same language, read. the same books, and possess the same political traditions, are capable of making an agreement to settle disputes by arbitration, a reality. Again, an agreement not to fight till the question in dispute has been referred to a body exercising the functions of a Court of law, is a step in the direction of that alliance between the United States and England which, we trust and believe, is the destiny of the two countries. If we begin by an acknowledgment that we are not in the position of foreign Powers—i.e., liable to war at any moment—we may soon rise to a definite race-alliance, and, lastly, to that declaration of a common citizenship which would prevent any Englishman from being an alien in America, or any American being an alien in England, and would heal the breach in the unity of the race caused by the folly of George III, and his Ministers. But though we are most anxious to see a treaty of arbitration concluded between ourselves and the United States, we fully admit that it would be absurd to bind ourselves to abide by the decision of the arbitra- ting tribunal in every case. Just as no wise or patriotic man will bind himself never to rebel, or will declare that he will submit every and any per- sonal question to a jury and abide by their decision, so there are questions on which no nation could agree to accept the award of arbitrators. For example, suppose the United States desired us to cede Vancouver's Island or Jamaica to her. That is not a question on which we could possibly take the decision of an arbitrator, however impartial. As Lord John Russell said in 1849: —" There are questions which occur between nations that cannot well or fitly be submitted to arbitration—questions involving the dearest interests, the honour, or safety of a country, which, if a Government proposed to submit to an arbitrator, the force of public opinion and public feeling would be such as to render it impossible for a Government to carry out such a purpose." This consideration does not, however, as Mr. dladstone pointed out, in any way forbid the conclusion of a general arbitration treaty between us and the United States. As was shown in the arbitra- tion treaty made between the South American Republics and the United States, it is quite possible to draft a treaty which, while it recognises the general principle of arbitra- tion, allows either party to declare that this or that question is too vital to be a fit subject for arbitration. The provisions of this treaty were explained by Mr. Glad- stone. It begins by pointing out a number of important subjects which are subjects for arbitration, and which the contracting parties bound themselves to refer to that kind of settlement. "The next article was more sweeping, and said that subjects of international dispute generally ought to be, and should be, referred to arbitration. Then comes another article, I think it is Article 5, which makes an im- portant reservation, and states that there is one exception to the scope of the foregoing articles, and it is this,—that no country shall be bound to refer to arbitration any subject-matter with regard to which it may be of opinion that the matter in dispute tends to imperil its existence." It cannot be said that by agreeing to this form of treaty we should in any way bind ourselves to accept arbitration on any of the matters in regard to which, as Lord Russell pointed out, arbitration is impossible. But it is only a treaty in this form which is advocated, and therefore the proposal made to the House of Commons to sanction negotiations for such a treaty was eminently reasonable. Perhaps, however, it will be said that a treaty of this kind, would be perfectly useless, and would leave matters just as they are, or, rather, would only add a new step to diplomatic negotiations, the step of declaring that the dispute tended to imperil the existence of the nego- tiating State. As a matter of fact, however, such a treaty between us and the United States would have a very great effect indeed. The diplomatists would start with Arbitration as an accepted principle, and would have to justify themselves before the public opinion of their own country if they frivolously or' pedantically declared the matter in dispute an exception to the principle of arbitration.
What, however, is still more important is the fact that a general treaty of arbitration would facilitate the erection of a permanent tribunal of arbitration. At present, and when a tribunal has to be created ad hoc, we are obliged to ask one or other of the European Powers to appoint arbitrators ; and these arbitrators, on the principle that England is too rich and prosperous, and will be all the better for a little ad- versity, always give the award against us. What we want is a permanent tribunal of great jurists, who will not only be impartial, but will act on strict principles of law and justice. Such a Court could be constructed with the greatest possible ease. Let us agree with America that a, tribunal shall be constructed by taking three Judges from the Supreme Court, and three Judges from the Judicial Committee (all the Lords of Appeal, and all Judges above the Puisnes, are members, and therefore this is the best Court to take), and letting them sit together to hear any cause referred to them by the two Governments. Further, let it be arranged that, as in the Judicial Committee, the Court shall give its award as the award of the whole Court, and not as the award of the majority, and that the members of the Court shall take an oath of secrecy, so that the decisions of the Court shall not be weakened by people declaring that the award would have been otherwise if this or that Judge had not been "a crank" on some point or other. Lastly, let the Court, before it begins its deliberations, draw lots, and let the Judge on whom the lot falls be given two votes, in case of the numbers being equal on both sides, and in order that a definite decision should be given in every case. Such a tribunal as this would, we believe, be perfeetly competent to try most of the cases to which arbitration would be applicable. The fact that the Common Law is part of the Constitution of the United States, as well as the ultimate authority in our tribunals, would enable the Judges to understand each other's ways of thinking. This Court of High Commission, as it might not inap- propriately be called, would have a united mind in regard to fundamentals, and would have little or no difficulty in settling a scheme of procedure. That it would command the respect of both countries it is needless to say ; for just as all Englishmen look with admiration on the Supreme Court of the United States, so all Americans respect that bi- cameral body of Judges which sometimes sits as the House of Lords, and sometimes as the Judicial Committee of the Privy Council. It may be, however, that the time is not ripe for constructing such a tribunal, and that it will be best for the present to be content with arbitration of the old kind. Even if that is so, there is every ground for congratulating the House of Commons on its unanimous resolution of Friday week. The resolution has brought us a step nearer that permanent alliance of friendship to which all English- men and all Americans whose hearts and heads are sound look forward with enthusiasm ; and the sooner the Foreign Offices of Washington and London set to work to draw up their treaty, the better pleased the inhabitants of both countries will be.
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