ARBITRATION WITH AMERICA.
WE are in sight of a general system of arbitration between England and America, and if Lord Salisbury will only have a little less fear of committing himself, and Mr. Olney will be a little less pedantic, we shall obtain a treaty of arbitration under which all ques- tions that ought to be submitted to arbitration will be submitted, but at the same time power will be kept by either Government to say, "This is too vital a matter to leave to the decision of any Court, however able and disinterested." At present Lord Salisbury's attitude is a little like that of the man in the hymn who "sits and shivers on the brink, and fears to launch away ; " while Mr. Olney, though anxious to get into the water, is haggling irascibly to main- tain that the immersion must be complete, and that unless both sides agree to take a header he will not bathe at all. Lord Salisbury, however, has plainly declared that he should rather welcome a shove from behind. He, in effect, told the House of Lords on Friday week that all he wanted to make him take the plunge was a little impetus from public opinion. " We have need," said Lord Salisbury, after describing the negotiations with America, " to know what is the trend of public opinion on these matters. We desire in a question which is certainly not one of party, that the best intellects that we have on both sides should apply themselves to a matter that affects the welfare of the human race in a singular degree, and especially the good relations of a State with which we so desire to be on good terms as the United States of America." Therefore, he continued, the papers had been laid on the table, and he hoped to derive from such attention as noble lords on both sides of the House might devote to them real guidance with respect to the subsequent conduct of the negotiations that we have to pursue. In other words, if the public will assure him that the water is not too cold, and that they are not afraid of being out of their depth, the Government will go on with the negotiations and come to an agreement as soon as possible. That is in reality a very wise attitude for the Government to take up. It would be useless to make a treaty which English public opinion would not endorse. If, however, public opinion, as we hope it will, gives Lord Salisbury the backing he suggests, it will be possible to make a treaty which, though it will not avoid all chance of recourse to the ultimo ratio—no treaty could, or indeed ought to, do that—will prevent petty squabbles and disputes on formal matters from festering into war.
Before considering the proposals for founding a Court of Arbitration made by Lord Salisbury and the counter- proposals made by Mr. Olney, it will be best to lay down the general principles on which an acceptable treaty of arbitration could be framed. That done, we can examine the actual proposals, and see bow far they agree or conflict with the ideal scheme. To begin with, no treaty could be wisely or safely entered into by either nation which would prevent them in the extreme case saying, "This is a matter which we cannot and will not submit to any tribunal under the sun." Any treaty which said that all questions, great and small, whenever and wherever raised, must be submitted to arbitration would be intolerable. There are certain things in civil life which no man would bind himself to submit to arbitration. For example, no man would consent to the question of the validity of his father's marriage and his own legitimacy being referred to arbitration because A, B, or C had challenged the fact. But, it may be said, in private life a man may be obliged to have these facts investigated before a tribunal, and that he is often forced to submit all points without reserve to the arbitration of a Court of Law. A Court of Law can and does pronounce whether any and every matter on which it is consulted is actionable, and if the matter is actionable, it decides on the merits. Therefore, it is urged in effect, all private persons are bound by a general and unreserved system of arbitration. Look a little closer, however, and it will be seen that the analogy is false. What makes the decisions of a Court of Law supreme is not the agree- ment of the parties to submit to those decisions, but the sovereignty of the State with which the Court is armed. The carrying out of the decision of a Court of Law is at bottom an act of war. Men obey that decision in the last resort because it is irresistible and if necessary is enforced with horse and foot and all the strength of the Executive. The judgments of the Courts of Law rest on force. There are hundreds of cases in which men if they could would refuse to go into Court. They only yield and make an appearance because of force majeure. Arbitration is a perfectly different thing. It is a voluntary agreement to accept the decision of a third party. Since, however, it is a purely voluntary agreement, no man, unless he is mad, will ever agree to submit any and every possible dispute to arbitration. He may agree to a restricted arbitration, and say that he will submit all points connected with his business to an umpire, but he will never consent in the abstract to put himself utterly at the mercy of an arbitrator. In the same way no sovereign State can ever agree to a universal system of arbitration. It is necessary that any treaty of arbitration must be limited. What is the best limitation ? Probably the safest is to give the contracting Powers the right to declare any question they think fit a matter vitally affecting the national honour and integrity, and to exclude such questions from the treaty without further argument or specific cause assigned. Any plan of scheduling exempted subjects is sure to fail. The object is to avoid the inclusion of subjects in regard to which nothing but force would make a nation yield. But these cannot well be laid down in the abstract. The only practical plan is to let the nations concerned judge what is vital to their honour and integrity. But though it is essential to ensure the exclusion of these points, and to make each nation judge for itself as to its honour and integrity, it is necessary to make no other limit. This restriction should stand alone ; every other point whatsoever should be freely admitted to arbitra- tion. There should be no niggling as to other points, —no fears as to the possibility of an award on this point being too expensive, or as to this or that matter being too big or "otherwise unsuitable." The object of an arbitration treaty is to avoid war. Therefore it is also its object to include as many causes of war as possible. Arbitration restricted to minor points is of little value. Nothing then but the integrity and honour of the nation should be unsubmittable to arbitration. The next matter of importance in a treaty of arbitration such as is proposed with America is to obtain a Court which shall be impartial and command the respect and confidence of both nations. Fortunately, in the case of the United States and England, this is comparatively easy. We have only to take three Judges from the highest tribunal of each nation, and an ideal Court is formed. Such a Court becomes at once a homogeneous body, and not a mere Mixed Tribunal. The Judges speak the same language, are of the same race, have been trained in the same principles of law and rules of equity, and all alike acknowledge allegiance to the Common Law. Next, a Court of Arbitration ought to be able to act promptly, and its decisions ought to be final. A Court that hangs up its judgments for years is worse than no Court. A Court of Arbitration between two nations should sit de die in diem till the case is finished. Lastly, all decisions arrived at on any matter laid before the Court should be abso- lutely final and binding on both Powers. Also, the Court should be so constituted that the decision of the majority should be taken as the decision of the Court as a whole, and therefore arrangements should be made that under no circumstances could the Court be equally divided. Here, then, are the four points essential to an acceptable treaty of arbitration :- " (1) Exclusion of points held by a Power to involve its honour and integrity.
(2) Inclusion of all other points whatsoever.
(3) Constitution of a Court which will win the confidence and respect of both nations.
(4) Endowment of the Court with the power to come to an absolute and final decision on any matter laid More it."
Let us begin by examining in the light of the princi- ples we have laid down Lord Salisbury's suggestions as they are expressed in the proposed draft treaty which he forwarded to Mr. Olney. In the first place, the draft treaty is sound in regard to the restrictions it imposes. " Any difference," declares the draft treaty, " which in the judgment of either Power materially affects its honour or the integrity of its territory shall not be referred to arbitration under this treaty except by special agreement." When, however, we come to the constitu- tion of the Court there is less ground for approval if tried by our standard. In the first place, it seeks to schedule the subjects to be referred to arbitration. First a series of minor matters are enumerated which are to be arbitrated upon by two arbitrators and an umpire. Then are enumerated a list of more serious problems which are also to go to the arbitrators. Either Power, however, may refuse to accept their decision and may insist upon the matter going to a Court of Appeal consisting of six Judges, three named by each Power. But even the appeal tribunal is not to give a final decision unless it is unanimous, or there is only one dissentient,—unless, that is, the majority of the delegation of Judges sent by either Power agrees with the judgment. If there is not a majority of five to one either Power may refuse to accept the decision. This scheme does not conform to either of the three last of the four principles laid down by us. There is not complete inclusion of all points not involving integrity and honour. That is, there are restrictions of the wrong kind. Next, the tribunal of first instance is not sufficiently impressive. The appeal, again, though to a well-constituted Court, prevents the action of the arbitration being prompt ; and finally the Court cannot give a final and binding decision except in the unlikely case of unanimity or of only one dissentient. Lord Salisbury's draft treaty, then, must be pronounced unacceptable. Mr. Olney's answer deals with some of these objections. He endeavours to show that the honour and integrity clause of Lord Salisbury's treaty is too wide, and he objects to the lack of finality. He proposes, therefore, a scheme of his own. It is in effect to make the arbitration unlimited except and unless either Power by an Act of Congress or Parliament or resolution declares the matter in dispute to be a question of honour or in- tegrity, and so withdraws it from the operation of the treaty. This does not seem to us a workable proposal either for England or America. It would be far better to leave the question of excluding matters from the treaty to the Executive of either country. The Government of the day, not the Legislature, should take the responsibility. We are again unable to agree with Mr. Olney when he goes on to deal with the constitution of the Court. He accepts three Judges from each country, and he does not object as we do to the appeal, but he wishes the Court when it meets to name three Jurists, who are to join the Court in case of a division of opinion. The decision of the Court of nine is to be final by a majority of votes. We object to these three irrelevant and unnecessary Jurists most strongly. We do not want three pedantic foreigners to inter- meddle in our affairs, and if men of Anglo-Saxon blood are chosen, who is to have the odd man, we or the Americans ? That way madness lies. The Court would wrangle over their three Jurists for months, or perhaps would never be able to agree on them. This proposal might wreck the whole scheme at the beginning. A far better plan would be for the six Judges to choose a President from among themselves by lot, and to give that President a casting vote. Next, they should, as in the Judicial Committee of the Privy Council, take an oath of secrecy and also an oath to give out the decision of the majority of the Court as if it were the decision of the whole. The decision of the Court thus constituted should be final. Depend upon it, this plan is far better than Lord Salisbury's five to one or Mr. Olney's added Jurists.
We have no space to deal in more detail with the scheme of arbitration put forth by Mr. Olney, or with Lord Salisbury's very able criticisms thereon. We have said enough, however, to show that the question has been well advanced, and that a solution is in sight. As we have hinted above, neither Lord Salisbury's plan nor Mr. Olney's is perfect, but out of them a reasonable scheme may be devised. The important things are that there should be a strong honour and integrity clause, that otherwise all disputes should be arbitrateable, that the Court when it is allowed to consider a question should give a final decision, and that it should be able to give a final decision by an arrangement which will make it in effect a body with an unequal number of members. If only these con- ditions are kept in mind ard persisted in we may have a workable treaty by next January.
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