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The Commoner.
The International Grand Jury
(William I. Hunt In Now York Jndopondont)
CProfcfiHor Hull, of Hwarthmoro college, lfl ono
of tho loftdlnfiT uuthorltlofl In tho United StatcH on
tho Jilntory nnil phlloHophy of tho poaco move
ment. Ho Ih tlw author of tho heat brief volume
on tho "Two liable Conference" published In
Engllnh, and Ih tho Hccretary of the efficient
Pennsylvania Arbitration and I'eaeo society. Now
that tho question of tho Joint hltfh commission in
tho proponed arbitration treaties with Franco and
, England involves tlio whole objection to them, wo
are glad to present this scholarly article showing
tho real significance of tho Joint high commission
in international law. Tho following article Is tho
substance of an address delivered before tho recent
session of the American society for tho Judicial
settlement of International disputes. Editor Tho
Independent.
Ono of tho notablo achievements of tho first
Hague conforonco was tho promlncnco given by
It to international commissions of inquiry as ono
of tho host means for tho pacific scttloment of
International disputes. Tho proposal to estab
lish theso gavo rise to ono of tho longest and
moot ardont debates of tho conference, tho result
of which was to Impress thorn deeply upon tho
international consciousness.
A largo majority of tho dologates shared tho
conviction that governments should investlgato
boforo thoy fight, and tho belief that, if they
investigate boforo thoy fight, In all probability
thoy will not fight at all. Thoy believed, also
that tho truth, tho wholo truth, and nothing but
tho truth rolatlng to international disputes
should bo Impartially ascertained and mado
public; and that during such investigation
popular passions would have ttmo to cool, and
a peaceful sottlomont of tho difficulty bo mado
moro easy.
On tho other hand, a minority of tho dole
gates argued that tho establishment by tho con
foronco of international commissions of inquiry
would bo too long a stop in tho direction of
obligatory arbitration; that a report by such
commission, if it woro advorso to the interests
of a largo powor, would cause tho largo power
to rofuso to arbitrate tho dispute; that such
commissions would bo a strong link in tho chain
which was boing forged for the binding together
of tho nations in a union which would infringe
upon tho sovereignty of tho smaller powers;
and that at tho bottom of ovory roquest by
ono stato for an international commission of
inquiry thoro is a kind of doubt as to tho Im
partiality of tho investigation mado by tho na
tional authorities of tho othor state, while tho
accoptance of a proposal to name such a com
mission Implies a willingness to subject tho
action of Us own authorities to a kind of inter
national control.
So porsistontly woro these arguments urged
(thoy woro foars, rathor than arguments, as
Baron d'Estournolles declared, and therefore
could not bo answered), so determined were tho
delegates of three Balkan governments (Rou
mania, Sorvia and Greece) to defeat tho adop
tion of international commission of inquiry in
any form, that the conforonco was finally
obliged, instoad of establishing them and con
ferring upon them a wide scop'o of activity
merely to doclare that it would bo useful for
tho signatory powers to establish them "in so
far as circumstances permit," and in questions
Involving uoithor tho honor nor tho vital in
terests of tho powers concerned."
This apparent failure of tho conference to
make what seomod to bo so short and so reason
able a stop toward international justice was one
of the reasons why it was mado tho laughing
stock of a reckless press and tho contempt of
thoughtless people. But seldom indeed has
there been so striking an illustration of tho
Importance of declaring tho truth, however
tritely, of holding up "a standard to which the
wise and tho honest may repair." Endorsed thus
feebly by tho conference, but mado practicable
by tho adoption of a few simple rules of pro
cedure, and impressed upon tho attention of
thinking mon, international commissions of
inquiry have found an assured placo in interna
tional relations; and, resorted to by Great
Britain and Russia in tho case of the fishermen
of the Dogger Bank, one of them allayed the
pass ona of the British people at a grave period
of the Russo-Japanese war and probably pre
vented war from becoming fatefully enlarged
in its scopo and results. ""b.u
At tho second Hague conference tho attempt
ZIZQVa 0BJabl,Bh international coS
sions of inquiry, to make it incumbent upon
powers not party to an international dispute
to suggest a resort to thein by the disputant
powers, and to add to thoir duty of imparUa
investigation and report tho further duty of
fixing tho responsibility for the occurrence
which gave rise to tho dispute. These proposi
tions again stirred up determined opposition,
which was this time almost unanimous, and
all that was accomplished by the second con
ference In regard to the commissions, besides
an improvement in their mode of procedure,
was the adoption of a declaration that their
establishment by the powers, under tho former
restrictions, would be desirable as well as useful.
Hero the history of International commissions
of inquiry ended, in apparent ignominy. But in
this year of grace the president of our republic
has, under God, taken up this stone which the
builders rejected and has made it the headstone
of tho corner. Truly, we may exclaim with tho
Psalmist: "This is the Lord's doing; it is mar
velous in our eyes."
When tho proposed treaties of arbitration,
and the senate's objections to them, are care
fully examined, it is seen that the heart of tho
treaties and tho core of the opposition to them
lies, not so much in the apparently universal
scope of tho arbitration proposed, as in the pro
posed method of determining the arbitrability
of questions in dispute. This method is the
appointment of an International commission of
inquiry, or, rather, tho transformation of the
familiar international commission of inquiry
into an international grand jury.
"With the rapidly growing belief in the effi
cacy of arbitration for the settlement of inter
national disputes, there has been a rapidly grow
ing desire to have all international disputes sub
mitted to this peaceful mode of settlement; but
tho supreme difficulty, the crux of tho entire
movement, is to get the parties into court. This
desire and difficulty are reflected by the treaties
and tho senate alike. Tho contracting govern
ments declare that they are "resolved that no
future difference shall be a cause of hostilities
between them or interrupt their good relations
and friendship;" and tho senate's committee
assorts that it "is as earnestly and heartily in
favor of peace and of the promotion of univer
sal peace by arbitration as any body of men,
official or unofficial, anywhere in the world, or
as any one concerned in the negotiations of
arbitration treaties." The treaties propose the
arbitration of all "justiciable" questions, and
the senate responds with a hearty Amen. So
emphatic is this response that the wayfaring
man naturally asks, Then where is the hitch?
And the suspicious man is inclined to regard the
senate's response as emphatic rather than sin
cere, and to apply to it the words of Ambassa
dor Choato at the second Hague conference
when he characterized Baron Marschall von
Bieberstein, of Germany, the great opponent of
tho American proposal for a world treaty of
obligatory arbitration, as being "on the one
hand, an ardent admirer of obligatory arbitra
tion in tho abstract, on the other, when this
idea is to be put into practice, he becomes Its
most formidable opponent. "It is for him " Mr
Choate continues, "an image which he adores in
the sky, but which loses all its charm on touch
ing ground; he regards it in his dreams as a
celestial vision, but when it approaches him he
turns toward the wall and will not look at it'"
But this doubt, so far as the senate is con
cerned, is not well founded; for, although the
senate s dream of universal arbitration is some
what troubled by such nightmares as attacks
upon the Monroe Doctrine, the Influx of undesir
able immigrants, and aggressions upon the ter
ritorial integrity of the states and the nation
tho real lion in its path is the great anMfon'
How shall the justiciability of InfSiuonal S?b1
putes bo determined? Or as the report of its
committee states it: "Tho most vital question
in every proposed arbitration is whether the
difference is arbitrable." "uer mo
To answer this fundamental question the
treaties propose to institute a joint high com-
mpISSi0n . quiry' Ghareed w"h the duty X
of impartially and conscientiously tavYsuiatln
and reporting upon any controversy referred to
it, for tho purpose of facilitating the soluSon JS
dsputes by elucidating the faefsfand second
of determining the justiciability or non-jusUci
ability of cases in which the parties disable as
to whether or not they are subject to arbTtra-
Tho name of joint high, instead of the Hasuo
conference's name of International, commission
of inquiry is given to the now agent but J2
first duty assigned to it is that proposed at The
VOLUME IS, NUMBER
Hague; while, through the second duty assigned
to it, It has been transformed from' a high com
mission and raised to the dignity of a grand
jury. Thus has been proposed tho immensely
important step" of adapting to tho administra
tion of international justice that great agency
which has served the Anglo-Saxon people for
more than seven centuries as one of the chief
bulwarks of individual liberty and as one of
tho most efficient tools in the enforcement of
national law and order.
History repeats itself in a most instructive
and most encouraging way. Looking back to
the days of the Norman and Angevin kings,
when the first faint heart-throbs of trial by jury
were beginning to make themselves felt within
the body politic of England, and the virus
of trial by battle was being expelled by
it from the current of national justice, we
see gradually emerging above the baronial tur
bulence and social injustice of the times the
jury of inquest and presentment, which became
the mother of grand and petit jury alike. Origi
nating as a body of impartial witnesses, sum
moned by royal-writ and sworn before the king's
officers to declare all the facts in a given case,
it was used by William the Conquerer for in
quiring into the laws of Good King Edward and
for securing the information upon which Domes
day Book was based. Henry II used it in con
nection with the Assize of Arms and the Saladin
Tithe, and substituted it for the wager of battle,
in civil cases, for determining title and posses
sion. It was Henry II, also, who, in his great
struggle with the barons and the church, lifted
it above its role of inquiry and report and in
vested it with the power of indictment in crimi
nal cases (Constitutions of Clarendon, 1164,
Chapter, and Assize of Clarendon, 11G6, First
Section); Magna Charta (Thirty-ninth section)
made it the cornerstone of English jurispru
dence; the American colonies and states incor-.
porated it "in their temples of justice; and the
United States constitution (the Fifth amend
ment) made it a foundation stone of the new
republic. Sustained by both common and
statute law, and by the affections of a self-governing
and law-loving people, it has achieved,
among the Engllsh-s.peaking peoples on',, both
sides of the Atlantic a long and glorious record
of beneficent activity; and now the president of
our republic has proposed to those same peoples
Its establishment within the international
temple of peace and justice at The Hague, and
invited all other nations to share with us its
benefits.
The national grand juries of today include
within their functions, first, inquisition of office,
or the investigation of matters committed to
their inquiry, upon evidence laid before them;
second, indictment, or accusation of crime or
misdemeanor; and, third, presentment, properly
so called, or inquiry into an accusation of
crime or misdemeanor, upon tho jury's own mo
tion and from its own knowledge and observa
tion. It has not yet been proposed to invest the
international grand jury with the function of
presentment proper; but with the growing
sense of the solidarity of nations we may yet
hope to see a properly constructed grand jury
of tho nations taking cognizance of and present
ing such patent crimes as the annexation of
ones neighbor's outlying territories. But this
tL1011' For the Present it has been
proposed in the Hague conference, as. has been
m, thv.attte interna"onal commission of in
quiry shall be vested with the duty of inaui-
po eS VtT PresidentasTo:
posed that it shall be vested with the great and
distinctive duty of indictment. It is f till dlffl-
o? na0tion8,lt0thinlVn0 0Ur old famlHar terms
of national jurisprudence their international
significance. But it is clear that Artfc III S
8fldie.nt Taft'8 treaty' ich empowers tho
joint high commission to test by the nrincinlea
of law or equity the justiciable SharactS Sf S
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