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The Green Bag
arbitration are judicial, and rarely, if ever, political. Indeed, questions of prac tical politics (Realpolitik) can never be arbitrated. Arbitration, in Kant's ex pressive formula, is a principle whose tendency lies in the moral rather than the pathological direction. It has never won a place of any consequence for itself in our municipal law, and it meets with little favor among our profession as a means of attaining justice. Yet here, as an effective sanction, we have the judicial machinery of the state to en force its awards. The International Arbitral Court of Justice will have no such machinery, it will have no prece dents, no accepted form of procedure, no body of customary law or usage, no consensus of practice or opinion to draw from in exercising its "arbitral" func tions. At this moment we have a dramatic illustration of the difficulties in the four-cornered controversy between Bolivia, Peru, Argentina and Brazil. The President of the Argentine Republic consents to act as arbitrator between Bolivia and Peru. He decides in favor of Peru, and Bolivia in resentment com mits violent acts of aggression against Argentina. In the words of Editor Bris bane: "In that Utopian time of universal arbitration that has been promised us by the enthusiastic apostles of peace at any price, who is going to arbitrate the issues of contempt of court?' ' The truth is that experience having shown the administrative defects of international arbitration, and the Hague plan having with really great skill rectified most of those defects—judges, permanency, im partiality, etc.,—it is assumed a fortiori that a court without such defects must necessarily be a success.21 "See R. Floyd Clarke, A Permanent Tribunal of International Arbitration: Its Necessity and Value, 1 Am. Jowr. Int. Law, 342. J. H. Ralston, Some Suggestions as to the Permanent Court of Arbitration, 3 Am. Jour. Int. Law, 321.
B Can we not oppose to the a priori arguments of those who believe in courts without a sheriff and posse, and in the efficacy of covenants without the sword, some examples from legal history and current experience? (1) The Amphictyonic Council came very near being a Congress and Court of the civilized states of the world. It broke down utterly under pressure. (2) A better, in fact a perfect example of the difficulties confronting such a Court is furnished by the history of our country under the Articles of Con federation. The Confederation had a congress and had a court. "The High Court of Appeals in Maritime Cases, or as it was finally styled "The Court of Ap peals in Cases of Capture," which the Confederation after five years of trials and tribulations eventually brought forth, though it never rose to the dignity of a federal judiciary, was in fact the first federal progenitor of our Supreme Court. But the real supreme court of the Confederation was the tribunal for territorial and land disputes. The Constitution of the Confedera tion provided that Congress should be the last resort on appeal in territorial and land grant disputes. An elaborate machinery modeled after Mr. Grenville's act of 1770, for the trial of disputed elections in the House of Commons, was adopted for the organization of this court. If the parties could not agree on arbitrators, Congress was to name three persons out of each of the United States, and from the list of such persons each party was alternately to strike out one until the number was reduced to thir teen; and from that number not less than seven, nor more than nine, in the presence of Congress, were to be drawn by lot; and the person so drawn, or any five, were to be the judges to hear the
