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."--_Editor._
[3] See Senate Document 98, 62d Cong., 1st Sess.,
9-10.--_Editor._
The other enemy to rational judgment--and rational judgment must be
the only basis of arbitration--is the danger of emotionalism. The
average man is yet largely irrational. When cool and self-possessed,
and when his prejudices and traditions do not interfere, he can pass
rational judgment upon questions in which his own interests are not
concerned; but when his passions are aroused he dispenses with any
effort to reason and acts in obedience to blind impulse. He knows that
it is expensive to fight, that it is dangerous, and that it is wrong;
but when he is provoked, he fights. The characteristics of the average
man are the characteristics of society. We have not yet outgrown the
mob.
Interwoven with this impulsive temperament and associated with some of
the most cherished affections of the human heart is the spirit of war,
developed by thousands of generations of ancestral conflict and passed
on to us as a heritage to be rooted out of our nature before we shall
realize in its fullness the ideal for which we strive. Mortal conflict
sanctified by religion, devastation idealized by literature, pillage
justified by patriotism, fellow-destruction ennobled by
self-sacrifice--these form a complex of contradictory emotions from
which men are as yet unable to unravel the one essential
characteristic of war; namely, the attempt to dispense justice in a
trial by battle, and make it stand out in its revealed inconsistency,
dissociated from its traditional concomitants of which it is neither
part nor parcel. The romance of knighthood and chivalry still appeals
to the human heart, notwithstanding the fact that war, love, and
religion, the knight's creed, are an inconsistent combination. Most
men can be made to see this in their minds, but cannot be made to feel
it in their souls. Many old Civil War veterans, who would not consent
for their sons to volunteer in the Spanish-American War, would have
gone themselves had they been able. Some did go. To men so disposed it
is useless to talk of the horrors of war. Give us a just grievance;
let some competent enthusiast inflame this passion with a war cry like
"Remember the Maine," "Fifty-four forty or fight," "Liberty or death,"
and, reënforced by the animal inherent in man, it will arouse popular
demonstrations devoid of all reason, creating a force that cannot be
controlled by a cold, calculating intellect. Can you listen to a bugle
call on a clear, still night without a quickening of the pulse as
there flashes through your soul a suggestion of all past history with
its marshaling hosts and heroic deeds? Can you see a military parade
without a suggestion of "Dixie" and the Star Spangled Banner, or
feeling your bosom swell with patriotic pride? This association may
be, and doubtless is, a delusion, but it is a delusion developed and
fortified by thousands of years of custom and precedent and it would
be contrary to the history of human progress if man should become
disillusionized in one generation. It may take centuries. If we are to
have international arbitration in the near future, we must have it in
spite of this spirit of war rather than by destroying the spirit. In
fact, the only practical way to destroy it is to let it, like
vestigial organs of which biologists tell us, degenerate from disuse.
This inherited emotional tendency remains as a threat with which we,
as exponents of arbitration, must reckon before we are justified in
saying that the world is ready for peace.
Because of these two social characteristics--the patriotic bias
which perverts judgment, and uncontrolled passions which submerge
reason--the educational propagandists still have a task to perform.
Let us now examine the stand-pat idea that unlimited arbitration is
but a dream as expressed in the quotation from Privy Councillor
Stengel. This is farther from the truth than the other extreme just
discussed. He who will, with an unprejudiced mind, examine cross
sections of history at widely separated stages, cannot fail to see
that along with the growing tendency of reason to predominate over
passion, superstition, and custom there has been a parallel tendency
to restrict militarism as a social activity. From a war conceived as
religion to war as patriotism, then war as commercialism and the tool
of ambition, man is now coming to the more rational conception of war
as the despoiler of nations. David speaks of the "season of the year"
when nations went forth to battle. Fifteen hundred years later
governments pretended at least to justify their military operations on
rational grounds. To-day war is the last resort, and even its most
ardent defenders do not attempt to justify it except in disputes which
involve national honor and vital interests.
In view of the foregoing facts it is evident that the modern peace
movement has by no means the whole of the task to perform. Rather, we
can almost justify ourselves in the assumption that war is not long to
remain one of our social inconsistencies and that it is now making its
last, and, therefore, most determined, stand on questions of national
honor and vital interests.
Among the numerous forces contributing to this evolution of
international peace, the chief agencies have been, and still are,
moral and industrial. These same forces are working to-day with
cumulative effect.
Warfare is becoming more and more inconsistent with the ethical spirit
of the times. Men may talk of the expenses, horrors, and devastations
of war as paramount causes for the tendency to substitute arbitration;
but antedating all other causes, underlying and strengthening all
others, is the slowly changing social conscience which, as each
generation passes, appreciates more fully warfare's inconsistency with
justice and antagonism to right. This same cause found civilized
society taking keen delight in the heathen barbarity of a gladiatorial
combat, and has transformed and lifted it up to where it is horrified
at a bull-baiting or a prize fight. It found human beings with
absolute power of life and death over other human beings and has
evolved the view that all men are created free and equal. It found
individuals settling questions of honor by a resort to arms, and has
substituted therefor a judge, counsel, and a jury. These three
institutions--gladiatorial combats, slavery, and dueling--were no more
regarded in their day as only temporary phenomena of social evolution
than is war so regarded by military sympathizers of to-day; yet these
have one by one been eliminated, and war is fast becoming as much out
of harmony with the ethical spirit of this age as was each of the
above out of harmony with the spirit of the age which dispensed with
it, and the effort to demonstrate that war is just as dispensable is
meeting with success. The teachings of Christ, who two thousand years
ago announced the doctrine of human brotherhood and surrendered his
life to make this doctrine effective, have slowly but surely wrought
their leavening influence upon the source of all war; namely, the
hearts of men. Warfare has for centuries been gradually yielding to
this deepening consciousness and that it must eventually, if not soon,
take its place beside the long-discarded gladiatorial profession, the
outlawed slave trade, and the discountenanced custom of the duelist
must be evident to any one who takes more than a superficial view of
the great determining forces which shape human progress.
Besides moral forces, industrial forces were mentioned as a factor
tending to the adoption of arbitration. During recent times, under the
impetus caused by the relatively modern innovations of steam,
electricity, and the press, this class of causes has been unusually
effective. Industry has overstepped international boundary lines.
Through the division of labor we are passing from the independence of
nations to the interdependence of nations. International banking,
transportation, and commerce, by establishing communities of interest
in all parts of the world, are binding the peoples of the earth into
one great industrial organization. As striking evidence of this
development, more than one hundred and fifty international
associations[4] and more than thirty-five international unions of
states have been formed. The modern intricate system of communication
is a veritable nervous system which, in the event of any local
paralysis or upheaval, informs the entire industrial organism. The
figure is no longer "the shot heard, round the world," but becomes
"the pulse-beat felt, round the world." If Spencer's definition of
patriotism--that is, coextensive with personal interests--is correct,
the bias of patriotism cannot retard the progress of arbitration much
longer, for patriotism will be a world-wide feeling, since personal
interests are no longer restricted to nationality.
[4] "Annuaire de la Vie Internationale," 1910-1911, reports
on 510.--_Editor._
No, Herr Stengel, each passing year finds the causes which make for
war weakened and the causes which make for arbitration proportionately
reënforced. The skeptics are the dreamers and the peace workers are
the practical men of affairs.
From the foregoing synopsis of the technical accomplishments of the
modern peace movement to date, and from the effort to interpret their
significance in the light of fundamental social characteristics and
the present social attitude, I trust three things have become evident:
_First._ The movement for international peace through arbitration, far
from being a mere bubble on the surface of society to be burst by the
first war cloud which appears on the horizon, is a movement, centuries
old, coincident with social evolution, deep-rooted in the very nature
of a developing world-wide civilization.
_Second._ International peace through arbitration is not to be a
ready-made affair, coming in on the crest of some wave of popular
enthusiasm as was expected by many in 1899.
_Third._ Being an outgrowth of the natural laws of human development,
a result so much deeper and more fundamental than political laws can
produce, international peace through arbitration may be furthered, but
cannot be accomplished, by legislation; may be delayed, but cannot be
prevented, by the neglect to legislate. To undertake to hasten
arbitration by forcing legislative proceedings beyond what the people
will indorse, would be as futile as to turn up the hands of the clock
to hasten the passage of time.
To those who can appreciate these facts there is no occasion for
discouragement in the suspicious attitude manifested by the powers
toward any definite step in the direction of unrestricted arbitration,
apparently so inconsistent with their general pacific professions.
"Rapid growth and quickly accomplished reforms are necessarily
unsound, incomplete, and disappointing."[5]
[5] F. H. Giddings, "The Elements of Sociology."
With the truth of these deductions granted, it would seem safe to
assume that the institutions for the settlement of international
difficulties will develop in much the same way as have the
institutions for the settlement of difficulties between individuals.
It should be profitable, therefore, to compare the present growth of
arbitration with the evolution and decay of the various modes of trial
as the idea of judicial settlement diffused itself through the mind of
the English people causing established forms to give way to something
better. Dispensing with the blood feud, which hardly deserves the name
of trial, the oldest form of such institution was trial by ordeal
which, according to Thayer in his "Evidence at the Common Law," seems
to have been "indigenous with the human creature in the earliest
stages of his development." This form gradually fell into disuse
before the more rational form of compurgation introduced into Teutonic
courts in the fifth century. In 1215 it was formally abolished.
Compurgation was abolished in 1440 as its inferiority to trial by
witnesses became fully recognized. In the latter form, instituted
early in the ninth century, when the witnesses disagreed the judicial
talent of the day conceived of no other method of decision than to
fight it out. Thus we have trial by witnesses and trial by battle
developing concurrently, although they were recognized as distinct
forms. After two centuries of effort to abolish it, trial by battle
was made illegal in 1833, the last case recorded as being so decided
occurring in 1835. Out of the trial by witnesses has evolved our
modern trial by jury, at first limited to certain unimportant cases,
then having its sphere extended as its superiority became more
evident, until finally it superseded all other forms and to-day is the
accepted mode of settling even questions of honor.
The growth and extension of international arbitration has not been
dissimilar to this. Six cases were arbitrated in the eighteenth
century, four hundred and seventy-one in the nineteenth, while more
than one hundred and fifty cases have been arbitrated during the first
thirteen years of the twentieth century. Between the First and Second
Hague Conferences only four uses were submitted to the Permanent Court
of Arbitration. Since the Second Conference, notwithstanding the
unsatisfactory disposition of the Venezuelan affair, eight cases have
been tried, a ninth is pending, a tenth will soon be docketed if the
United States is not to act the hypocrite in her international
relations by refusing to submit to England's request to arbitrate the
question as to whether or no we exempt our coastwise vessels from toll
duty through the Panama Canal. Defects have been detected in the
Permanent Court of Arbitration and we are well on the way toward a
better court. Representatives of only twenty-six nations took part in
the deliberations of the First Hague Conference; representatives of
forty-four nations took part in the deliberations of the Second Hague
Conference. Wars of aggression and conquest, though not formally
outlawed, are effectively so, and arbitration for the recovery of
contract debts is now practically obligatory. As time passes and its
feasibility gains credence, arbitration, like the jury trial, will
extend its sphere of usefulness until it too settles questions of
honor. Nor need we imply from this analogy that it will take such an
age to accomplish this result. Because of the increased mobility of
society, resulting from the greater like-mindedness and consciousness
of kind incident to our modern communities of interests and systems of
communication, and from our greater susceptibility to rational rather
than traditional appeals, a reform can be wrought more easily and the
people can adjust themselves to the change far more readily than
several centuries ago.
Bearing in mind, then, our attempted analysis of counter social forces
at work, our deductions from this analysis and the foregoing analogy
the significance of which grows out of the truth of these deductions,
let us conclude with a suggestion as to what the next Hague Conference
should attempt. It should, of course, like the former Conferences,
extract as many teeth as possible from war. As to improving our
arbitration facilities, its first task evidently should be to
determine some method whereby members of the Judicial Arbitration
Court shall be apportioned and selected. If, as has been suggested, it
is decided to use the same scheme of apportionment as that for the
International Court of Prize, the provision that each party to a case
shall have a representative on the bench should be changed so as to
provide that neither party shall have a representative on the bench.
If this court is not to be a misnomer like the Permanent Court of
Arbitration, its rulings must be in accord with the principles of
jurisprudence rather than with the spirit of compromise such a
provision would tend to produce. With this accomplished and the
Judicial Court of Arbitration put in practical working order "of free
and easy access" to the powers, it may be doubted whether anything
further can be done. If the powers can be made to agree to submit to
the court all cases growing out of the disputed interpretation of
treaties, a great advance will have been made, but it is doubtful
whether the present state of public opinion would indorse such a
progressive step. These international legislators can do no more than
provide channels through which the spirit of international peace can
exercise itself as it expands, and the Judicial Court of Arbitration,
at the optional use of the nations, conforms admirably to this
requirement. The delegates should, therefore, avoid the universal
tendency of such bodies to legislate too much. None of these Hague
Conferences can alone accomplish the ultimate purpose of the so-called
dreamers, but each Conference may be a landmark on the upward journey
toward that consummation, anticipated by Utopians from the earliest
times, foretold by prophets from Micah and Isaiah to Robert Burns and
Tennyson, labored for by practical statesmen from Hugo Grotius to
William H. Taft, when each man shall be a native of his state and a
citizen of the world.
AUTHORITIES
For acts and conventions of Hague Conferences:
"Texts of the Peace Conferences" by James Brown Scott.
For data concerning proposed treaty with England:
Text of treaty and majority and minority reports of Senate
Committee on Foreign Relations.
For statistics of arbitration treaties:
"Revised List of Arbitration Treaties," compiled by Denys P.
Myers.
For development of trial by jury:
"Evidence at the Common Law" by Thayer.