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ments shall have in the contract an agreement to submit all questions between employer and employee to arbitration. That means that the honest, just man agrees that, no matter what demand is made upon him, he shall submit it to a court of arbitration, the disposition of which court is always to compromise and grant part of that demand. I have seen many an employer and employee; where they believe they were right they won't arbitrate, and they won't agree beforehand to arbitration, and I don't think we should pass a resolution which says morally they ought to. That is a question between man and man, whether he is right in each particular case, and if this law means that, I am against it.

George H. Bates, of Delaware:

Mr. President, it seems to me that there are two distinct and separate subject-matters that are wrapped up in this debate, and as it is going on now it must be to a certain extent inconclusive. Now, the suggestion that has been made here that by proposing to introduce into a Federal court the principle of arbitration or the principle of referee trials, which is a part of the jurisprudence of almost every State, is a reflection either upon the courts or upon the bar, it seems to me is hardly worthy of our serious consideration. We are not posing as members of the bar of the various States who have reached that degree of perfectness that we are ready to be translated. The very name of this Association and those who are members of it indicates that this Association is founded on the idea that there may be improvements in the administration of the law. Therefore any proposition which looks to improvement, whether it be in fact an improvement or not, certainly is not to be construed as any reflection, either upon the courts or the bar; therefore it seems to me that it is not necessary to take time with discussion of that matter.

The introduction into the administration of justice of the United States of a system of arbitration, a proper system of arbitration, would be simply to extend those tribunals which exist in the States already, but this bill I do not believe to be

well constructed for that purpose. In the first place, the system which obtains in the States, so far as I know it, has been very well stated by the gentleman from Alabama. In my State there is a precisely similar system. It is that where the parties agree there may be appointed by the court or by the consent of the parties, or, as is generally the case, named by the clerk of the court by the consent of the counsel on both sides, three referees, to whom all matters in controversy are referred. Now, the usual result of our statute is that very many matters of fact, very many cases which do not involve any legal principle, are referred to that tribunal out of court, and the award of the referees comes in and is confirmed by the court, unless it is set aside for some matter, such as the improper conduct of the referee.

Such a system as that I think could be introduced into the Federal courts with advantage. It does not reflect on the court. It merely removes from the court a great mass of matters which may be as well disposed of by three judicious men, or, as our law terms it, I think, three judicious and impartial freeholders. It does not reflect on the bar, because the cases can only go to those referees by their submission by the consent on both sides. Very many of the cases are introduced into court by an amicable agreement for the purpose of being referred under what is called an amicable agreement reference. But this bill undertakes to do very much more. In the first place, there seems to be an impression in the minds of several of the members of the Association that this bill is going to operate in some way as a relief from the troubles which now exist between capital and labor. How is it possible, I ask you, Mr. President, that this bill can afford any relief to controversies of that character? How can you get any such controversies into the Federal court under a bill which provides that any dispute relating to any subject-matter arising under the Constitution or laws of the United States may be referred to such tribunals? How could the masons' and carpenters' strike in Chicago have come before a Federal

tribunal of that kind? It may be that in the onward sweep of centralization, which has been promoted as much by the Supreme Court of the United States as by any other influence in the country-particularly in the last Legal Tender decision -that we are coming to the point when such controversies will be embraced within the judicial powers of the United States courts, but certainly they cannot be now. The dispute between a citizen of New York, who is building a house, and the workmen, who are also citizens of New York, at work upon that house, certainly cannot be brought within the provisions of the bill.

Now, if that is the object of the bill it will not answer. There are other objections to the bill, I think, but it seemed to me there was a convenient method of getting at the sense of this Association on this subject, the preliminary subject, whether it is the sense of this body that there shall be introduced into the Federal courts any system of arbitration-I mean of voluntary arbitration by referees appointed by the court; and it seemed to me if we could take the sense of the Association on the question in the first instance, it might be done by a motion to recommit. I will make such a motion simply in order to see whether we cannot get rid of this question without going into an extended debate.

I therefore move you, sir, to recommit this bill, with instructions to report a bill providing for a system of arbitration in the Federal courts similar in principle to that in general use among the States.

I make that motion simply for the purpose of bringing up that preliminary question. I believe it has developed here amply that the sense of the majority of the members is · against this bill.

Charles C. Lancaster:

I second that motion.

James O. Broadhead, of Missouri :

I don't see any necessity of referring this bill back to the Committee, and I say that because I see no necessity of

amending the laws of Congress so as to authorize arbitration in the Federal courts. The system of arbitration prevails in most of the States under State statutes. It has almost grown into disuse in most of the States because it is an inconvenient and unsatisfactory mode of settling controversies. The experience of all lawyers here from different parts of the Union will bear me witness in what I say in that respect. I know the arbitration law in Missouri is seldom called into use, because it is unsatisfactory, and almost always results in a suit upon the arbitration bond. I hardly know of an instance in which an arbitration has not resulted in a lawsuit afterward. Then I say it is unsatisfactory because the rules of law established in courts of justice are not, as a general thing, applied by the arbitrators. This bill which is up for consideration is really not a proposition for arbitration at all. The basis of arbitration is this: Parties agree together to submit that controversy, and the submission, which is in writing, determines what shall be the power of the arbitrator. Now, here there is no provision for submission at all, but the parties go before the Federal court and apply for an officer or officers to be appointed to determine the controversy between them. The officer is not agreed upon by these parties at all, but is appointed by the court, and there it departs from the principle of arbitration, because the person appointed is not agreed upon; in other words, it is simply a different mode of trying a cause in court. That is all there is of it-of trying it before a third judge who is appointed by the judge upon the bench; and with this difference: That he is authorized to determine the controversy without reference to the rules of law, without reference to pleadings except such as he may establish of his own accord, and the controversy is to be decided according to the principles of equity and justice. That is the provision of this bill. What equity and justice? Why, the equity and justice that may reside in the breast of the person appointed by the court, whom neither party to the controversy knows or selects, and whose decision, if there is no fraud in

it, is not subject to appeal. Now, that is a great objection to this system, and there is no occasion for it in the Federal court. There is not one case in five thousand where the Federal court would have jurisdiction over controversies of this kind. The persons must be citizens of different States, or it must be a question arising under the Constitution or the laws of the United States, or Acts of Congress, or some other ground of Federal jurisdiction.

Therefore I say this bill is utterly unnecessary.

There is

no occasion for giving to the Federal courts any further jurisdiction. The State Legislatures have amply provided for controversies to be submitted to arbitration where the parties make their own submission, and that submission is the law which governs the arbitrators in their determination of the controversy. In other words, it is called a system of arbitration when it has none of the elements of arbitration except the power that resides in the person appointed by the court to determine the controversy without regard to the laws of evidence or the pleadings established in the courts of justice.

C. C. Bonney:

I rise to a question of privilege. I moved the adoption of the resolution reported by the distinguished Committee on Jurisprudence and Law Reform, but after what we have heard it is evident that there is such a wide diversity of opinion as to what the bill aims at, as well as what the result would be, I ask leave to withdraw the motion and let the matter lay over until some other time, when there may be a better understanding of the bill.

Wilbur F. Sanders:

I do not understand, sir, that this is a question of privilege, and for myself I am in favor of disposing of this proposition here by voting down the report of the Committee. I should not have disturbed so august a body by what I have said here had I known the Pandora's box that was about to open, but, in common with all lawyers, the more I see and

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