their rendering a just decision impossible. But to delay the proceedings somewhat, to lay aside some evidence, there existing other clear proofs, to fail to comply with the adjective law in its secondary provisions and other deficiencies of this kind, do not cause damage nor violate international law. Counsel for Mexico justly stated that to submit the decisions of a nation to revision in this respect was tantamount to submitting her to a régime of capitulations. All the criticism which has been made of these proceedings, I regret to say, appears to arise from lack of knowledge of the judicial system and practice in Mexico, and, what is more dangerous, from the application thereto of tests belonging to foreign systems of law. . . ."

In the case under consideration there was no positive acquittal. Perry's innocence was not demonstrated by establishing an alibi, or by showing that it was another who committed the crime, the existence of which was conclusively proved. Perry was acquitted for the negative reason of there not being sufficient evidence against him. The possibility that he was the culprit subsisted, notwithstanding his being definitely freed from any subsequent penal action for the same crime.

Under the circumstances of this case, the Republic of Panama should have been exonerated. If the Tribunal believes it proper to award Perry damages for simple reasons of equity, as the finding of the majority suggests, and taking into account the fact that he was subjected to confinement without being declared guilty, the award should be moderate and proportional to the damage actually suffered.

The record shows that Perry at the time the facts took place was an employee of a saloon and in charge of certain gambling slot machines which the proprietor was exploiting at different locations in the city of Colón. He had previously been a soldier in the army. From his enlistment papers it is shown that when he enlisted he gave his profession or trade as waiter. The claimant has not tried to establish, as is usual in such cases, the amount of Perry's income at that time.

The amount of the damage resulting from confinement must be determined taking into consideration the position and the earning capacity of the person confined.

For the reasons set forth, I am of the opinion that under law this claim should be disallowed, and that if for reasons of equity alone an award should be allowed, it should be for a considerably smaller amount.

H. F. ALFARO
Commissioner

COMMENT

Of somewhat unusual interest is that part of the foregoing Decision which interprets certain provisions of the arbitral convention as requiring the Tribunal, in rendering its decisions, to "be guided rather by broad conceptions than by narrow interpretations".

That provision of the arbitral convention which required that the awards be rendered "in accordance with the principles of international law, justice and equity" is not novel. It has been used in a considerable number of previous conventions. While these terms may be susceptible of varying interpretations, it would seem that the intention of the contracting parties in using those provisions should not be difficult of discernment. International law, as an independent jurisprudence, is of course very immaturely developed. A large percentage of cases coming before international tribunals for solution involve questions which are impossible of adjudication in accordance with what can be said to be clearly defined and definitely recognized principles of international law, or even with a line of accepted adjudications in identical cases. Each such case involves, therefore, the adaptation of old principles to new sets of fact or the evolvement of new principles through the process of deduction from the principles generally applied in relatively analogous circumstances. In other words international law, as generally accepted, is inadequate to all present requirements. It requires clarification, extension, and broadening in practi

cally every case. It is therefore in process of rapid evolution. Governments, recognizing that arbitral tribunals about to be created by them will be called upon to decide unformulated issues, have included in their arbitral conventions provisions requiring that the tribunals, when searching for new principles to be applied to new states of fact or when applying recognized principles to unprecedented circumstances, attune their broadening interpretations to recognized "principles" of equity and justice.

This requirement is totally foreign to any supposed license to render decisions ex eaquo et bono, in accordance with the uncontrolled conscience of the judge. When recognized principles of international law are found inadequate to the decisions of unprecedented cases, analogous principles are to be applied, such analogies to be formulated, however, with recognized "principles" of justice and of equity as the guides in this respect. This it is believed has been the, perhaps unvoiced, reasoning of those who have concluded the conventions containing the provision here in question.

The above-indicated statement in the foregoing Decision on this point may possibly leave some basis for uncertainty as to the source of the "broad conceptions" to be followed as a guide in lieu of "narrow interpretations". Contesting parties will usually feel they have a right to have the boundaries between the right and the wrong of their controversies, between condonation and international liability, carefully determined in strict accordance with existing law, if there be such law. If liberality is admittedly used in applying existing law, dissatisfaction will be inevitable on the part of those who may feel their interests have been adversely affected by such liberality. Only outside the field of recognizable law is other than strict interpretation allowable. Then logical deduction and analogy is necessary, but this must still be in strict accordance with the recognized "principles" of justice and equity.

The calculation of the damages allowed in this case is explained in the award. The claimant Government contended that the wrong consequent upon the illegal imprisonment was aggravated by forced labor, inhuman treatment, and unsanitary conditions in the prison. Although it is not stated in the award whether it was considered that these allegations were proved, the award amounts to approximately $57.50 for each day of imprisonment and would appear to have taken these elements into consideration in some small degree.

CLAIM

on behalf of

AGNES EWING BROWN

DOCKET REGISTRY NO. 2

Syllabus

1. Official written appointment of the claimant by the Chief Executive of Panama on an annual salary basis; written acceptance of such appointment; the rendering of service on such appointment for a period of two months, and the payment of salary for such services on the per annum salary basis was held not to constitute a contract recognizable by the International Tribunal.

2. Correspondence addressed by the Directress of Girls' Normal School to her superior officer held to be "engaging in a political controversy" and, as such, ample warrant for summary dismissal without indemnity or advance salary payment under the terms of local law.

SUMMARY OF FACTS

The claimant, a teacher of high standing, who had been Directress of the Normal School at Concepción, Chile, in 1907-8 and Directress of the Girls' Normal School in Panamá City during the year 1912-13, was, in 1918, offered reappointment as directress of that school by the Panamanian Consul General in New York, who was in this respect acting under the instructions of the President of Panama. The proposed contract was to be for 5 years, at $2,400 per year, plus subsistence, and first-class passage to and from Panama. Miss Brown declined the offer but, upon being urged, agreed to go to Panama, at the expense of that Government, to investigate conditions there with a