Part 20

The Court of Arbitration proper is really an "eligible list" of individuals, "of recognized competence in questions of international law, enjoying the highest moral reputation," designated by the forty-four Powers signatory to the convention. Their terms are six years, renewable, not over four members appointed by a Power. Their jurisdiction extends over all cases submitted to them, but sometimes the parties agree to a special tribunal not selected from the list. Two names may be selected from the list of arbitrators by each of the Powers in dispute, and the amended convention of 1907 provides that only one of these can be its envoy or chosen from its nominees to the Court of Arbitration. The four arbitrators thus selected themselves choose a fifth as umpire, or, if the votes of the four are equally divided, the choice of umpire is intrusted to a third Power to be agreed upon. If there is failure to agree upon a third Power, each party to the controversy makes a separate choice of a Power, and the two thus selected will try to appoint the umpire. But if they, in turn, fail to agree, each shall within two months' time present two candidates from the general list, excluding those selected by the disputants or of their nations; by lot among these, the umpire is finally elected.

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The work of the Third Conference, besides adding to the statute law of war, will largely concern the regulations governing the Court of Arbitration. Since it was constituted in April, 1901, this court has passed judgment in fourteen important cases without having established needed rules of practice. It is not decided whether the cases and counter-cases shall be presented with argument, or merely with statements of the facts, the conclusions sought, and the proofs. The practice is both ways. The thirty-five articles relating to "arbitral procedure" fail to prescribe rules, leaving this task to the tribunal in each case. As a result the terms of procedure in the Casablanca dispute, for instance, which were decided hastily to avert a threatened war, were brief and vague, and they left the discretion of the tribunal uncontrolled. The order of oral debate is not determined chiefly because a disputant is touchy about being classed as plaintiff or defendant. Clear rulings on points of practice are not made when presented, although the agents and counsel are entitled by the rules to "present orally to the tribunal all the arguments they may consider expedient in defense of their case." Yet opportunity to argue a motion is sometimes not afforded when the motion is made, and an argument presented later would be out of place. It would aid procedure to have arguments presented and rulings made as the points come up. Finally, the informal discussions between court and counsel frequently hinder the straightforward presentation of a case.

But the chief defect of these arbitral tribunals, as in all others--for practice has not reached the perfection of choosing disinterested judges belonging to nations not concerned in the controversy--lies in their temptation to compromise. Gallatin, in the Northeastern Boundary case with Great Britain, remarked that the arbitrator "has always a bias to split the difference." The Casablanca case, the decision of which really did avert war, and more than any, so far, justifies the establishment of the world court, depended on law and fact, but was compromised. Dr. Heinrich Lammasch, a distinguished member of several Hague tribunals, speaks of the "preponderatingly diplomatic character" of this decision. Other decisions have been criticised for the same reason, notably those of the North Atlantic Fisheries and the Orinoco Steamship. Compromise, while of value, is the function of diplomacy or mediation, and the cases referred to The Hague are admittedly those which diplomacy cannot adjust. The remedy is by direct agreement to exclude from the tribunal judges who sit as diplomatic agents of their governments. A beginning in this direction is in Secretary Bryan's plan for commissions of inquiry, consisting of five members, three of whom should be chosen from other countries than those in dispute. But these would be merely committees. The defect of Mr. Bryan's plan, and the great lack of the Hague Court of Arbitration, is that the agreements to refer cases in dispute are purely voluntary; the one thing for friends of peace to work for, of course, is to make it as easy for differing nations as for differing men to hale each other into court, and as impossible to refer their differences to force.

The International Court of Prize has already come nearer to this ideal than the Court of Arbitration. It is a regular court of justice. Its judges are not arbitrators, they receive a fixed compensation, their jurisdiction in cases of appeal from the national prize courts relating to captured merchant ships and cargoes, is compulsory. In absence of treaty provisions between the states in dispute, the convention adopted by the Second Hague Conference reads, "the court shall apply the rules of international law; if no generally recognized rule exists, the court shall give judgment in accordance with the general principles of justice and equity." Before ratifying the convention, Great Britain in 1908 called a conference in London of the chief naval Powers, which codified the laws of naval war, covering blockades, contraband, service ill-becoming neutrals, destruction of neutral prizes, transfer to a neutral flag, hostile character, convoy, resistance to search, and compensation. Here a whole category of cases is at once removed from the judgment of biased minds.

The existing Court of Arbitration may be resorted to increasingly as a means of diplomatic conciliation; but by its side and above it should rise, in the opinion of all authorities on international law, a Supreme Court of Arbitral Justice, not diplomatic but judicial, that will render its decisions rigorously according to the declared law and the evidence. The Second Conference at The Hague approved a convention for the establishment of such a court. The United States has proposed to the Powers that the Prize Court be invested with the functions and jurisdiction of a Court of Arbitral Justice. The practical difficulty met at The Hague was in the appointing of permanent Judges. Forty-four, one for each state including The Netherlands, would be too many. A court of but fifteen Judges was recognized as desirable. Such a court could not be chosen from forty-four nations, and the delegates were in a quandary. The arguments were irrefragable, of course, that a small, independent body of magistrates selected in advance is needed to settle controversies between nations as they arise, and as a court of appeal from the decisions of temporary tribunals. Such a tribunal might well become a court of first as well as of last resort, because of the difficulties and delays usually experienced in making up the mixed arbitral commissions from the eligible list of the Court of Arbitration. The alternative recourse is especially needed when the imminence of war requires a speedy reference, as in the Casablanca case. For these reasons the convention was drawn and approved, leaving to the Third Conference the task of constituting the court. Ernest Nys, a member of the Permanent Court of Arbitration and Counselor of the Court of Appeals of Brussels, urging the necessity of such a tribunal, makes the point that its members should not be chosen to represent any countries, as such, but rather in a way to assure that the different systems of law and procedure, as well as the principal languages of the world, might be represented. By this means the world peace may be permanently established. Organized justice will succeed arbitration, guaranteeing to individuals and states the security of their rights and institutions, precisely as the "king's peace" had come to guarantee them within the limits of each sovereignty.

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In this review of the instruments making for peace by conciliation and law, the arguments for war have not been ignored. If at The Hague in 1915 the Powers should decide to nationalize the private industries that supply armaments and engines of war, the artificial stimulus given to those industries and the exploitation of new appliances for war would cease; manufacturers would no longer oppose the limitation of armaments, which every nation desires. Complete preparation for war did not prevent the Balkan States and Turkey, not yet emerged from the civilization of the Middle Ages, from coming to the death grip with each other. It was different with those nations whose Council of Ambassadors, sitting in London, and watching the kaleidoscopic changes in the Balkans, became by the statesmanlike influence of Earl Grey, a clearing house, through which the affairs of the six chief Powers were adjusted to a harmonious ending. It is noteworthy that in the more than forty years of Europe following the close of the Franco-Prussian war--perhaps as good as a cycle of Cathay--those six Powers, though armed for provocation, have by such careful negotiations remained at peace. But making the allowance due to this remarkable abstention from war, to which must be added the hundred years of peace between the United States and Great Britain, the inherent appeal of war to the imagination and emotions of mankind must still be recognized.

War's mutilations have never roused aught but horror, its waste of men and treasure are deplored. But the spirit of strife, of daring, and of heroism remains in human breasts. If war is outworn, if bloodshed and sacrifice of lives are to cease between civilized states, as they have long ceased within those states, it must be that better means have been found to satisfy the profound human need of expression and of conquest. The German Emperor, while keeping up the medieval pageantry of arms, has welded his nation into a militant power of industry and science. Their arts are not ignoble, their industries are not monotonous, but have taken on the aspect of imperial enterprise and daring. Their scientists are rescuing mankind from disease and freeing it from menial labors, while their merchants and traders are modernizing the orient, setting examples of method and discipline, incidentally, to their rivals in the civilized nations. It is by such means that civilization need no longer rear itself on human slavery; the very beasts of burden have been freed, and man has seized control of nature's forces. By them he is borne through cities, manners, climates, councils, governments, more swiftly than Ulysses went, and beyond the paths of all the western stars.

More distant horizons of science have been opened. The transmutation of the elements, but recently announced, is expected to realize more than the dreams of the alchemist. If we are to believe Professor Soddy, who with Sir William Ramsay obtained in 1903 the first direct proof that radioactive processes are veritable transmutations, this discovery in its consequences should "absolutely revolutionize the whole condition of existence." For of all processes, this alone accounts for the wealth of energy dissipated so prodigally throughout the universe over apparently endless periods of time. Once means are found to accelerate the transmuting rate of radioactive atoms, Professor Soddy believes the same means will suffice to break up the other elements now unchanging, releasing energy which man may harness a "million times greater than any at present utilized." In his masterly address in 1908 before the American Society of International Law, Elihu Root traced the development of the international spirit by the use of human inventions conquering space and time. Clans, communities, nationalities have lost their early function, and frontiers and territorial possessions are changing their political significance. Terrestrial pioneering is not ended, the continents are rediscovering each other in new relations.

Much has been done to open new channels for the play of men's energies away from war. War has had its uses to break up the old order, to let loose new and unknown forces in society, to set men free from tradition. That was the great work of the Crusades. Chivalry and knighthood are still needed, but of a new order. The martyrs for aerial navigation are the type. The machinery for peace that has been set up in the new palace at The Hague will not confine the adventurous spirit of mankind.

EN CASSEROLE

_Tobacco and Alcohol_

As to tobacco, since reading the article on it in this number, this Review has really thought more seriously than ever before about (not _of_) giving up smoking. But many doctors here and in Europe have told us to keep on, and but one has told us to stop. How is it with you? We wonder whether life with tobacco _can_ seem to those who know only life without it, as bad as life without it seems to those who have known life with it! Perhaps each class should experiment in the other's field.

As to the outlay for mere pleasure, and the destruction of life involved, we wonder how those caused by tobacco would compare with those caused by travel--short trips as well as long, by carriage, automobile, vessel--and aeroplane? Our contributor has seen these paragraphs, and he says, very much to our edification and entertainment:

"It is a relief to know that the tobacco article is not going to interfere with the pleasure which 'This Review' derives from smoking. But the writer confesses to a little surprise at the precocity of an infant which in its first year has acquired the nicotine habit to such an extent as to lead it to consult several physicians on the subject."

[It is many years since, but we remember that in at least two cases, the prescription was _volunteered_. Ed.]

"As for the expense caused by driving for pleasure, our statistics do not give us a conclusive answer, but they at least supply us with an outside figure, for Uncle Sam in counting his horses at the time of the last census distinguished between those on farms and those elsewhere. It is fair to assume that the great bulk of the horses used for pleasure are in the second class, and that they constitute a comparatively small fraction of that class. Now horses not on farms numbered 3,182,789 in 1910, and were valued at $422,204,393. In other words, a third of what smokers spend for tobacco would enable them to buy up all of the horses in a big class, only a fraction of which is used for pleasure, and an equal amount would probably suffice for their keep.

"In the case of automobiles, it is still more difficult to distinguish between those used for pleasure and those used for directly productive or public purposes. However, the object of the article was to call attention not so much to gross figures of expenditure, as to the indirect burden imposed by smokers upon the community at large. The automobilist who is willing to run down innocent wayfarers rather than curb his craze for speed is in the same class with the smoker who so smokes as to destroy property and life. Indeed the two are often identical, and it was no mere accident that led the Massachusetts Forestry Association to depict upon its poster designed to stop forest fires, a party of smoking automobilists bowling along and leaving a trail of fire behind them. If the 'Review' can devise some painless way of eliminating both the reckless smoker and the reckless joy-rider from the landscape, it will kill two undesirable birds with one stone."

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And as to alcohol. Well! There's Horace and Schiller and the feast of Cana, and the whiskey Lincoln wanted for his other generals, and lots of other people and facts.

But as to bar-maids, we are bound to say that since the graceful tribute to them on earlier pages was in type, there has been placed in our hands evidence of a crusade against their employment in England, and of its abolition by law in South Australia. See the Memoir of Margaret Ethel Macdonald. London, 1913.

For all we know, the preponderance of argument may be against the substitution of women for men as barkeepers; but we suspect that at least it would diminish the shooting at and by barkeepers, in New York.

And another thing we think we do know--that in these progressive days, it would be hard to find any pursuit in which women are engaged, where there is not agitation to improve it off the face of the earth. Their old-fashioned pursuits of wife and mother have lately been specially honored by such agitation.

_Answering Big Questions_

A contemporary that we have always very highly "esteemed" (we believe that is the correct term, but we are new in the profession) is now proceeding to fill us with awe. It announces that it is going to circulate privately among its friends, a series of brochures that "will answer big questions." We wish we could do that; but our cotemporary has already engaged the only editor we know of who can. For our poor part, we are apt to encounter in any country grocery some question too big for us to answer. But the answers our esteemed cotemporary is going to send out may occasionally help us in telling how a big question that we don't profess to be able to answer, looks to us. We have already had some help of this kind from the editor in question: on many subjects his glowing imagination has thrown such high lights that we have found places of shadow before unsuspected.

The matter reminds us of Horace Greeley's proposition to issue "for the people," a series of pamphlets for five cents each, to contain only "the pure truth." He did not say where he was going to get it.

_Decency and the Stage_

In the present agitation regarding decency on the stage, it is probably safe to assume that the proponents for license or liberty or freedom or whatever they call it, admit that there are _some_ necessary acts and places which should not be represented on the stage. Now would it not clarify discussion if the said proponents were to draw the line between such inadmissible matters and those that should be admitted? We have never happened to see such a line drawn.

_What Is the Matter with the American Colleges_

Everybody in every one of them seems to know that something is the matter, but nobody in any seems to know just what, much less, then, a remedy for whatever it is.

Some say it is the suppression of the individual, the glorification of the average. Others say it is college yelling and athletics. Yet others, that it is vocationalizing and the deadly practical. Still others call it the proletariat of the doctorate, the fad of the faculties for immature or imitation research.

Can it be that it is all these things and several more, particularly all those that exist in contrasted pairs, such as discipline and required work according to the standard of the mean, and at the same time, elective studies and the freedom of the city? Or simultaneous college yells and doctor's dissertations. And can it be that all these grow out of a single actual condition which is common to all American higher education, and which compels it to be "lower" at the same time that it is "higher"? For in the present organization of practically every American college and university that condition actually does exist.

It exists by virtue of the fact of the housing in the same dormitories and fraternity houses, and mixing in the same class rooms and laboratories, and providing with the same teachers and deans, and ruling by the same regulations and gum-shoe committees, of dependent preparatory students and independent advanced students.

Our high schools stop short of finishing the preparation of students for University work. Our universities assume part of the high school function along with their own. The German _Gymnasium_ and French _lycée_ include the equivalents of the American college Freshmen and part of the Sophomores. They finish up the drill and discipline stage of education. The Continental university begins and carries on the stage of intelligent and self-chosen and independent work. But in the American universities there must be discipline, college yells, drill in routine and elementary work, classes handled on the basis of averages, and teachers of the _Gymnasium_ and _lycée_ type, existing side by side with recognition and encouragement of the individual freedom of bent, disregard of credit hours and assigned tasks, and scholarly professors and investigators of real university type.

The outcome is that the drill teachers are made pseudo-investigators; the investigators made unwilling drill teachers. The students are invited to soar, and at the same time ordered to march in ranks. Preparatory school rules are made for the sake of the Freshmen, which the Seniors have to obey. Freedom of choice in study is offered because of the Seniors and graduates, to the utter demoralization of the Freshmen.

Because of this impossible juxtaposition of discipline and freedom, drill and inspiration, the American university feels sick. It knows very well that something is the matter with it. It has to be all things to all students, and is, in fact, too little of a real thing to any of them.

_Wanted: Proportionate News_

The most noteworthy difference between European and American Journalism, as regards news, is the prominence we give to what is technically called the news of the day. Let a great liner be sunk or saved and all the newspapers, even the most conservative, print page on page of repetitious story or comment, playing on the emotions from every point of view. No European paper would feature even the most affecting news on any such scale. Doubtless our American practice is a natural enough tribute from the editors to the mobility of our sympathies, not to say the flightiness of our minds. What the enthralled reader does not realize is that to provide him with the completely modulated thrill of the day scores of important items of routine news have been curtailed to meaningless epitome or wholly suppressed. For several days that duty of daily chronicle which a good newspaper ordinarily performs is intermitted. The most important debates of a congressional year will receive bare notice so long as a heroic Marconi operator is in the public eye. The greatest of foreign statesmen or authors might die in the glorious interim and receive the barest notice; a revolution in Persia would yield to a factory fire on the East Side.

Now something of this disproportion is necessary. No paper could live in America which scrupulously treated news according to its abstract importance regardless of the reader's cravings. Yet a journal that respects itself has a function of daily chronicle that should under no circumstances be suspended. A really good newspaper ought to be valuable material for the historian, and our best newspaper will several times in every twelvemonth leave him badly in the lurch. For a week he will find admirable reports of say the discussion of a very important measure like the currency bill, and then suddenly the _Volturno und kein Ende_. Just about the time when mail letters were beginning to tell a certain amount of truth about the Messina earthquake, the telegraphic reports of which were egregious inventions of distant improvisers, _The Republic_ was saved through the intrepidity of Jack Binns. A correspondent who had been on the ground at Messina and remained in close touch with the rescuers and refugees received the sufficient answer with regard to additional earthquake facts "Jack Binns has killed Messina." Here is obviously both a good and a bad reason. There was every reason for celebrating at length the pluck and loyalty of Jack Binns, and no reason for curtailing the record of one of the greatest disasters registered in history.