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THE GREEN BAG

to the inherent intellectual shortcomings of the men who resort to law, or even of those who have to apply it. In our domestic courts we distrust leaving irrevocable decisions to the judgment of one man: we distrust decreeing finality either to arguments or to evidence. And, to a great extent, circumstances have already led to the employment of many differ ent diplomatic forms to enable governments in a similar way to avoid the calamity of deadlocks. Yet deadlocks do occur, and re cently we have been more than once brought to the verge of war with powerful neighbors by practical deadlocks. Our diplomatic ma chinery, in spite of its arsenal of forms, failed for want of a further jurisdiction, which, by operation of law, without further discussion, should become necessarily possessed of the question at issue. We cannot disregard the natural weaknesses of mankind in the relations of nations with one another. Patriotism, ignorance, 'bluff,' improvidence, thoughtless ness, courage, love of excitement, conceit, con viction (right or wrong), misunderstanding, exaggeration, all affect the course of inter national questions, when public opinion is appealed to or allowed to take any part in their decision. This is the danger, and it is on account of this danger that so many great statesmen are agreed that, successful as our diplomacy usually is and admirably as it is recruited, we can no longer rely, in the cir cumstances of the present age — with a vigi lant and enterprising press ruthlessly day by day dissecting every international incident, and a nervous, overstrained democracy which, especially in overcrowded cities, claims its ' say ' in all public matters — we can no longer rely on the quiet settlement of difficulties, which the accredited diplomatists have not solved, without the aid of some further dila tory amicable procedure by which govern ments can at least gain time. "Whatever difference of opinion may exist as to the mode in which arbitration can be best adapted to cover such and all cases of international difficulty, we have that great, if only precedent of a general Arbitration Treaty between great powers, the unratified AngloAmerican Treaty of 1897. It cannot be de nied that that Treaty is based on a reasonable view of the difficulties which beset arbitration in the minds of statesmen, where national

questions of vital importance are involved. It embodies, at any rate, as President Cleve land said of it, a 'practical working plan" for bringing these delicate matters within a gen eral treaty. On the other hand, the Hague Convention has dealt with all matters but this very class, which was excluded from the pur view of the Conference, and as regards all others but this class, reference to the Hague Court is fast being made compulsory. Then what is wanted, to complete the work done at the Hague, is to graft upon it some such pro visions as those contained in the AngloAmerican Treaty, confining the choice of arbitrators, where the question is of vital importance, to persons exclusively of the nationality of the states concerned." JURISPRUDENCE (Codification) THE problems arising from the multiplicity of modern case law are again under discussion in an article entitled "Certainty and Justice" by Frederic R. Coudert in the May Yale Law Journal (V. xiv, p. 361). "There is in all modern states to-day a gen eral conflict between certainty in the law and concrete justice in its application to particular cases; in other words, between the effort to have a general rule everywhere equally ap plicable to all cases at all times and the effort to reach what may seem to be concrete right dealing between the parties at Bar upon the particular facts in each case. "In actual practice the pendulum swings first one way and then the other. The social necessity for stability in the law is unques tioned. Law is necessarily a rule of action, and unless a court decides cases according to some cohesive plan or rule, the justice admin istered is scarcely deserving of the name of law, however greatly it may fall in with the ethical notions of the community as regards any particular case. On the other hand, when rules become so fixed and rigid that they are difficult or impossible to change, the law is out of touch with prevailing moral ideas which like all other ideas are constantly pro gressing; the law thus necessarily becomes a clog upon national development, an incentive to revolutionary reform." In pursuance of this thought, while admit ting the dangers resulting from too strict an application of the doctrine of stare decisis and