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a judicial act. It would not have been a judgment binding Venezuela or Great Britain, or even binding the United States of America; and the only effect would have been that it presented the opinion of the five gentlemen constituting the commission that the line reported was historically and legally the true divisional line. Now that matter has passed from the advisory commission, and the disputing powers, Venezuela and Great Britain, have signed a treaty for an arbitration tribunal, and the decision of that tribunal will be a judicial act determining the controversy between the parties.
In speaking of the power to determine, I do not mean that it carries with it any physical power of the judge or the tribunal, because my experience is that judges have very little physical power. As a member of the Supreme Court of the United States, my power may be supposed to reach far and wide, and to be great, and yet I have but little physical power to compel a compliance with my judgments, but it is the power to determine, because, through the organization of society, it is understood by all that the physical power of the nation stands back of the judicial opinion, and can be called upon and will be exercised, if necessary, to compel compliance with that opinion. And thus it is the power to determine and not the right to advise.
Now, there are three classes of controversies, but before I come to that, let me say that there are three ways of settling controversies: First, by negotiation; second, by force; and third, through an appeal to the judicial function.
Negotiation is the way which brings in no outsider, where the disputing parties come together, and, by conference and compromise, settle the dispute. That always has been, is today, and will be to the end of time, one of the best, if not the best way of settling controversies, and it is to the glory of our profession, notwithstanding the common talk that lawyers foment litigation and stir up strife, it is, I say, to the glory of our profession that we settle more controversies than we litigate. I appeal to every lawyer here, of any practice, if that is not his experience.
The second way is by force. The stronger settles, by force, his controversy with the weaker; by the fist, by the sword or by the bullet, he puts an end to the controversy. The majority, by force, compel the minority to submit to its demands, and the controversy is settled in that way. The greater nation
compels the weaker nation to submit. Great Britain demanded of Nicaragua the sum of two hundred and fifty thousand dollars as compensation for some alleged wrong. Was it referred to the judicial function to determine the merits of that controversy? No. She sent her armed vessels and said, "Pay that money or my marines will step on shore and take possession of the custom house." Nicaragua paid because she had no power to resist. Germany claimed that the little nation of Hayti had wronged one of her consuls, and she sent her warship there and said, "Pay me fifty thousand dollars," and by force the little nation was compelled to pay. Some one has wisely said that might and right are the two forces that rule the world; might, at first, but after a while right is heard, and then right rules. The first way in which nations and individuals attempt to settle their disputes and controversies is by an appeal to force. But there is a better way, and the world is coming, slowly, it is true, to learn that the true way to settle controversies, if they can not be settled by negotiation, is by an appeal to a disinterested tribunal; an appeal for the exercise of the judicial function. Might has had its day; right is coming to the front. Right will rule, even between nations; it will cease to be a question of the armed battalion and the armored cruiser, but it will be more and more, as the years go on, an appeal to arbitration tribunals. I have in my pocket a report made to the recent Mohonk Peace Conference, and the report shows that, during the last year, fourteen international arbitrations have been initiated or finished. The world is moving. There is a growth of the judicial function. I do not see close at hand the day when the wild war drums shall beat no longer and the battle flags be furled, but it is coming. The world loves and longs for the judicial function as the way to settle all disputes.
Some day love shall claim its own;
There are, as I said, three classes of controversies, too. Controversies between individuals, controversies between the state and the individual, and the controversies between states. Now, it is the accepted rule of our civilization that controversies between individuals must be settled by an appeal to the judicial
function, if they can not be settled by negotiation. It is not tolerated in the light of the present century in this land that a man shall appeal to force and compel a settlement of his demands. He must go to some tribunal having the right to determine. So, as to the second class, it has also become an accepted formula of our civilization that all controversies in which the state holds the affirmative and the individual the negative must likewise be settled by an appeal to the judicial function. Charge of crime, which is but a charge made by the state against the individual, and, indeed, every other form of controversy in which the state is the actor, are to-day confessedly to be settled by an appeal to the courts, or by some appeal for the exercise of the judicial function, and little by little we are coming to recognize that the converse of this is best; that claims against the government, claims in which the individual is the actor, must be settled in the same way. Of course, the old theory was that you could not sue the state, and when, in the early history of the Republic, the decision of the Supreme Court of the United States was that under the Constitution as it then stood, an action might be main; tained by a citizen of one state against another state, promptly an amendment, the eleventh, was adopted, which withdrew that power from the courts. But we find that within the last fifty years, congress has legislated for a Court of Claims, and has further provided that claims against the government growing out of contract may be sued in any Circuit or District Court of the United States, so that one who says that the government has broken a contract with him does not now need to apply to congress, and lobby his claim through; and lobbying a claim is sometimes expensive. The other day The Southern Methodist Book Company obtained an allowance from congress of three hundred thousand dollars, or thereabouts, on the representation that it had no lobbyist, and now it turns out that 35 per cent. was promised and has since been paid to one. It would have been far better if that sum had been paid to a lawyer to prosecute the claim in the Court of Claims and there obtain a judgment. More and more it is coming to be recognized that the true way on the part of the government to provide for a settlement of all claims against it is not by legislation, not by bill through congress, but by the establishment of a judicial tribunal to determine their validity and extent.
The third class of controversies I have indicated, those between nations, is going some day to be settled by arbitration.
In other words, the work of the lawyer and the work of the courts is coming to be recognized as more and more important. Whether you go into one tribunal or another, you go in through the aid of a lawyer to invoke the judgment of some judicial officer. And our civilization depends more and more upon the power and influence of the lawyer and the courts and the extent to which the judicial function is carried.
It is a beautiful thought, one often expressed, that humanity is busy working under the dome of time fashioning the fabric of civilization. It is a glorious thing, that fabric, as it rises before the human eye to-day. There is nothing in all the universe that is grander or more beautiful than the fabric of our civilization as it stands at this, the close of the nineteenth century. All of human thought and feeling; all of human hope and aspiration; all of human self-sacrifice and denial; all of heroic achievement and effort, has passed into its structure and color. Beautiful as it may be, and there is naught, as I say, in all the physical universe to compare with its beauty, it will crumble into dust and be forgotten as the civilization of Babylon, unless into the fabric, and through every part of it, there runs one thread, and that the thread of equal, exact and universal justice. That thread, brethren of the bar, and brethren of the bench, it is especially your work and mine to run. Upon us as upon no other workers in our civilization is the duty cast of seeing that this single thread of justice runs through every part of the fabric, and God grant that it may be your privilege and mine that as to the particular portion we weave into the fabric it shall be so pure and strong that nothing shall tarnish its luster, and no temptation break its fibre.
I have spoken, as you must have noticed, of the growth of the judicial function, and not of the increase of the power of the courts, and while I know that the two things are not to-day synonomous, they will eventually become so. I know that to-day controversies are often settled through the exercise of the judi cial function, not by courts, but by other bodies and officials; but that is only temporary and springing from the fact that the administration of the law through the courts is not yet perfect, nor as perfect as it should be. We find, for instance, that chambers of commerce, boards of trade, and other organizations, are in the habit of settling disputes between their members growing out of mercantile transactions, by committees, instead of the courts. We find that boards of arbitration have become quite
popular in certain directions, and it must be frankly admitted that in that class of controversies, growing in importance and number, between the laborers on the one hand and the employers on the other, there is manifested a disposition to resort not to the courts, but to boards of arbitration; but all this, as I said, is temporary. It will pass away. It springs in the first place from the matter of time. Proceedings in the courts are slow. Litigation does not move as business moves. We travel by steam; we do business by electricity; time is of the very essence of business; the settlement of controversies can not be put off from day to day and from year to year and business men go on in business; so they are coming, and we must concede it, to settle disputes through committees of members of the organizations to which the disputants belong. There promptly the thing is settled. But if proceedings in the courts of justice were as prompt as the action of a committee, do you suppose merchants would ever invoke the latter to settle their disputes? Of course not, because, in the first place, it takes the time of the merchants in examining those disputes and they have no time to spend. It often provokes an unnecessary lasting and hurtful bitterness of feeling between the committee and the disputants; and the power of a board of trade or chamber of commerce is sometimes inadequate to full relief. The only way it can compel compliance is by withholding the privileges of the organization, and the man who wants to remain in and do business there complies with the decision of the committee, because otherwise his rights are forfeited. Beyond that, no organization, whether board of trade or chamber of commerce, can go, and so it not infrequently fails of furnishing adequate relief. Boards of arbitration, also, are sought often partly because they act promptly. They are not hedged about by arbitrary rules of procedure. They can dispose of a dispute in a few days. There is another thing which, it must be confessed, exists, but which will pass away because it is alien to the true judicial function, and that is the feeling on the part of many disputants that through arbitration they can get a more partial tribunal than by appeal to the courts. One party names an arbitrator, the other party names another, and then the hope of each is that his arbitrator may induce the other to select a third who will be favorable and partial to the one side. But that idea of a tribunal to determine controversies is foreign to the thought of justice. What every right thinking man wants, whether lawyer or client, is that whoever is vested