The Montgomery advertiser., 1904-01-21

|
 tribunal. If they would encourage resort to that forum. n
 There remains the larger question sug- I gested by the report of your committee of the appointment of disinterested arbf- | trators. Shall the arbitrating States be | represented on the Tribunal, or shall the | arbitrators all be selected from third | States. If the latter course is followed, ! to what extent will the services of Amer jean arbitrators be sought by European l States? What part shall we have in the l development of international law by the | decisions of the tribunal.
 Experience has already demonstrated | the wisdom of the plan of The Hague | Convention for the composition of the | tribunal. Each of the signatory States has the appointing of its quota of mem bers in making up the permanent panel. ! When differing States agree to resort to the tribunal, they should and do have at hand an abundant panel to choose from. It is not difficult to select from that panel | arbitrators in a given case who will ably and impartfally decide any legal contro- versy submitted to them. But whether they should all come from States who | are not interested in the litigation Is a | question on which there is wide differ l ence of opinion.
 "The solution which has been suggested | is that the tribunal should be composed of five or more members. one from each of the litigating States and three or more ! from third States. But this would be simply diluting instead of removing the venom of partisan feeling which has so | often disturbed the serenity of tn, delih 1 erations of arbitral tribunals has colorcd | their dissenting opinions and impaired the authority of tteir decisions. The vice in the composition is eradicable only by striking at it's source. That no one can 1 be truly judge in his own cause is the | priulordial test Of judicial competence. | The chambers in which the judges de'ib- crate upon their decision must be inac- cessible to partisan feeling or infiuen ;e. l for that is necessary to the full and free l interchange of views and opinions. which | is possible only in the absence of parti- sans on either side.
 l While. therefore. I have no doubt Of l the soundness of the opinion expressed in the report of your association, most se- l rious question arises as to the conse- | quences of it's adoption by the United | States. with respect to the share which the three Americas would have in creat- 1 ing the body of decisions which will ema- nate from that tribunal and which will be potent factor in the growth of the law of nations. Should The Hague conven- | ton be amended, for that seems to be the | only practicable way. so that large number of American States can become parties to it and furnish their quota of the permanent panel? Should we take 1 any-and. if so. what-measures to induce other governments to follow the example | set in the first two cases which have been l submitted to the tribunal? What steps.
 If any. should be taken with a view to se- | cure on The, Hague Arbitration Tribunal a proportional representation of arbitra-
 tors from the American States?"
 MT. Penfield then alluded to the ques-
 ton of language, which he said. presents l in general perplexing and sometimes a very serious problem in the conduct of proceedings before an international tri- bunal." He thought 1t could be safely said that the question will remain un- l solved as a whole, but will frequently arise and find some sort of a practical so-
 lution in successive cases.
 Mir. Penfield then discussed the employ
 ment of members of the permanent court as agents or counsel by arbitrating gov ernments saying that 1t was question which merited careful consideration with l view to settling a correct practice.
 Continuing he said:
 "The formation of the Federal Consti- tuition and the creation of the Supreme Court of the United States marked the high tide of the civilization of the eigh- l
 Hague convention and the creation of the
 permanent court of arbitration signalized
 and crowned the civilization of the nine.
 teenth century. Each was the logical
 outcome of antecedant institutions, of the
 compulsive force of circumstances. and
 of the exigent needs of rising civiliza. ltion.
 "In the resort to arbitration tribunals
 as to the judicial courts. experience has ctr tod hot iS
 of questions that do not and can not fall
 within the sphere of arbitral or judicial
 decision. We do not and could not submit
 to the decision of the courts-not even to
 the Supreme Court of the United States
 mere questions of national policy. domes-
 tic or foreign. We do not submit to the
 reconsideration of the judiciary the ques-
 tions of what shall be our fiscal or eco
 homie policies. what shall be the form
 of our government. what our course shall
 be in the Orient or on this continent-witl
 respect to the Monroe Doctrine, for ex-
 ample. We could, to be sure by consti.
 tutional amendments, delegate the con-
 sideration and decision of all questions of
 domestic or even foreign policy to the Supreme Court of the United States but such delegation of power would unite in
 one body the executive, legislative and
 judicial functions, and would end by con-
 verting the court into a Venetian oli- garchy
 Tn general way. it may be said that
 the question of whether all controversies
 of every nature between nations will
 eventually be submitted to arbitra ton
 can not be answered by a facile reference
 to the perversities of human nature nor
 to tributes paid by military chieftains to
 the regenerating and civilizing influence
 Of war It may and can be reasonably
 answered by asking. in a lawyer-like
 fashion as In a controversy between in- | dividuals. whether the case is in its
 nature fit for the political or judicial | branch of the government to decide The
 solution. of course. depends on the na-
 ture of the controversy.
 | While it would be too much to ex-
 pect the submission of international ar.
 bitration of questions which are radical.
 ly of political nature, we are justified
 in the hope of an increasing limitation l Of the resort to war by means of arbi- tration even of certain political contro. Verses.
 | MT. Penfeld said that the recent sub
 mission to The Hague tribunal of tn, Venezuelan matter was a proof of tho progress of the cause of international ar bitration
 In conclusion, he said:
 There is another highly interestinc problem whose successful solution The