Nam privata dolore omni, privata periclis, Ipsa suis pollens opibus, nihil indiga nostri, (For the nature of the gods must ever in itself enjoy immortal life and perfect peace, far severed and far separate from our world. For being emancipate from all pain or peril, in its intrinsic majesty, without any need of us, it is not won by service, nor is moved to wrath.) Divinity exists, according to these, I must say, magnificent lines, 'in remote and inaccessible recesses; but with us it has no dealing, of us it has no need, with us it has no relation.' I do not hesitate to say that the specific evil, the specific form of irreligion, with which in the educated society of this country you have to contend, with respect of which you ought to be on your guard, is not blank atheism. That is a rare opinion, very seldom met with; but what is frequently met with, is that form of opinion which would teach us that, whatever may be beyond the visible things of this world, whatever there may be beyond this short span of life, you know and you can know nothing of it, and that it is a fruitless undertaking to attempt to establish relations with it. That is the mischief of the age, and that mischief you do not attempt to touch. Mr. Morley speaks of the reverential stillness' with which the House sat 'hearkening from this born master of moving cadence and high sustained modulation to " the rise and long roll of the hexameter " -to the plangent lines that have come down across the night of time to us from great Rome.' Many things died, it is sometimes said, with Mr. Gladstone. His death marks the close of an era of statesmanship. The statesmen of the future may be as prescient, as high-minded, as enthusiastic, if they are not fully as eloquent, as he; but not in education nor in character nor in experience will they be altogether like him. Among the things which may be said to have died with him, one is the art of classical quotation. It died on the night that he sat down, after his great speech on the Affirmation Bill. If so, it could hardly have found a nobler death, or statelier obsequies. All that I have tried to do in this essay is, before it is too late, to speak the last words of appreciation over its grave. J. E. C. Welldon. A CENTURY OF INTERNATIONAL ARBITRATIONS THE world has completed about a century's experience of international arbitration. Rather more than a hundred years separate that which may justly be called the first treaty for the settlement of differences in this manner from the group of treaties concluded a few months ago with France, Germany, Italy, and Portugal, &c. There is about the same interval between the North Sea Inquiry which ended the other day and what may be termed the earliest of modern arbitrations. I use 'arbitration' in a wide sense, including not only, in the words of the Hague Convention, the determination of controversies between States by judges of their own choice, upon the basis of respect for law,' but also inquiries judicially conducted by representatives of States. There were, of course, centuries ago many international arbitrations. They were never quite unknown. Instances of them in antiquity and in the middle ages have been collected, and the list is long. But they had little in common with what we now call arbitrations. Their methods were not ours, and they were mixed up with mediation and diplomacy. In the sixteenth and seventeenth centuries all kinds of public arbitration fell into disuse. In the eighteenth century, with its confidence in the future of mankind, and its passion for perfectibility, were thinkers who devised schemes for establishing universal peace. But they did not look for aid to arbitration. Their schemes postulated great political changes. They built upon nothing existing. They wanted a new Europe-some said, a new kind of humanity. They trusted to general diets or federations of States acting collectively and putting down war by force of arms. The statesmen who earliest foresaw and proved the possibilities of arbitration were among the founders of the American Constitution, notably Franklin, Washington, and Hamilton. The first of these wrote to his friend Price in 1780, We make daily great improvements in natural, there is one I wish to see in moral, philosophy; the discovery of a plan that would induce 6 ' Even Penn's scheme contemplates that, if any State refuses to obey the judgment of the Imperial Diet, all the other sovereignties, united as one strength,' shall compel submission and performance of the sentence. and oblige nations to settle their disputes without first cutting one another's throats. When will human reason be sufficiently improved to see the advantage of this?' Franklin did not live to witness his idea. take shape. Washington, Hamilton, and Jay gave it effect. Arbitration, as we know it, dates from 1794, when the treaty signed by Lord Grenville and Mr. Jay was concluded between England and the United States; an instrument which the latest historian of arbitration describes as 6 un acte capital qui sépare nettement les anciens errements des pratiques modernes.' Some articles of the Treaty of Peace of 1783 were obscure and incomplete. It left a large heritage of miscellaneous disputes as to boundaries and other matters. Hot-headed men said, 'Let us fight them out.' The mass of the nation, sympathising with France, and not averse to a renewal of the struggle with England, saw in the Jay Treaty of 1794 a craven surrender to the enemy.3 Even those who were prepared to negotiate with England as to money disputes said, 'We shall never submit to arbitration the fate of any part of our territory; it would be consenting to a dismemberment of our country.' Hamilton replied, in words which seem now to express a platitude, but which were then altogether novel : It would be a horrid and destructive principle that nations could not terminate a dispute about the title to a particular parcel of territory by amicable agreement, or by submission to arbitration as its substitute, but would be under an indispensable obligation to prosecute the dispute by arms, till real danger to the existence of one of the parties would justify, by the plea of extreme necessity, a surrender of its pretensions. Against a storm of contumely poured upon them and efforts to intimidate the executive, Washington and his Cabinet stood firm. The treaty was ratified. In due time a mixed Commission sat to settle the boundary line between Maine and Nova Scotia, the claims of British subjects against the United States, and of the United States on account of captures by British vessels. That was the beginning of modern arbitration. It may not be amiss at this time to review the chief features of this century of experience and to note a few of the chief results. The task is lightened by several useful works lately published, especially by Mr. J. B. Moore's History and Digest of the International Arbitrations to which the United States has been a Party, M. La Fontaine's Pasicrisie Internationale, M. Lapradelle's and M. Politis's very valuable Recueil des Traités d'Arbitrage, and Dr. Darby's International Tribunals. The results which they record 2 Franklin to Price, 6th of February, 1780. 3 Jefferson was opposed to the treaty: I am not satisfied that we should not be better without treaties with any nation. But I am satisfied we shall be better without such as this' (4, 120). are not all that was expected by sanguine minds. A calm review of the facts is calculated to sober the enthusiast. There were in last century not a few wars which arbitration did not arrest, and could not have arrested. Diplomacy more than once proved itself much more efficient. But, on the whole, the visionary and enthusiast have here been more shrewd than the so-called practical statesman. The retrospect also suggests certain desiderata. It reveals drawbacks and inconveniences incident to arbitration as it is now conducted. The fact to be emphasised is that international arbitration as we know it originated with the two English-speaking nations. It has been used by them far more than by others. The greatest disputes terminated by means of it have been those between the people of America and England. It is in a sense an Anglo-Saxon institution. It has passed into other lands even as has trial by jury. There are inevitably considerable differences in the computation of the exact number of international arbitrations; some including in their enumeration proceedings, such as mixed diplomatic commissions, which others omit. According to Mr. Moore, the United States have been in last century a party to fifty-three arbitrations out of 136. President Eliot stated in 1896 that there has been during the 104 years which had elapsed since the American Constitution was formed only four-and-a-quarter years of international war, and that' within the same period the United States had been a party to forty-seven arbitrations, being more than half of all those that have taken place in the modern world.' M. La Fontaine, whose survey extends from 1794 to 1900, enumerates 177 instances, and assigns 70 cases to Great Britain, 56 to the United States, 26 to France, 9 to Italy, 4 to Russia, and Germany none. M. Lapradelle and M. Politis, in their carefully prepared Recueil, commencing at 1789 and ending at 1855, say: 'Dans cette période, qui couvre plus d'un demi-siècle, on compte vingt-deux procédures arbitrales, où, soit comme demandeurs, soit comme défendeurs, les Etats-Unis reviennent 13 fois, l'Angleterre 13 fois, les États allemands 4, la France 4, le Mexique 2, les Cantons Suisses 2, les Pays-Bas 1, la Grèce 1, l'Espagne 1, le Portugal 1"; in other words, 26 AngloAmerican arbitrations, 6 interfederal, 4 French, 2 Mexican, the others 1 for each nation; or about 60 per cent. Anglo-American, the French element under 8 per cent., the German-Swiss about 12. Dr. Darby, who includes in his list very many cases which I should omit, enumerates no fewer than 471' cases formally referred to arbitral judgment' in the nineteenth century. To about 131 of these Great Britain was a party, to about 82 of them the United States, the figure for Germany being 27. According to any computation the great majority of them have been between the two first-named countries. And of these arbitrations by far the most important have been those in which this country and the United States were concerned. Judged by any test, the awards as to the North-Eastern boundaries, the Alabama claims, the Behring Sea dispute, the Venezuela and the Alaska boundaries were the chief decisions within the last hundred years. A further remark on this point; the form of arbitration which has lately found favour and which is now general-reference, not to a sovereign, but to one or more jurists-is of Anglo-American origin. The type which was long in favour on the Continent is being abandoned. MM. Lapradelle and Politis draw this distinction: Tandis que l'arbitrage Anglo-Américain par commissions mixtes est l'œuvre de particuliers, l'arbitrage de type français est l'œuvre de princes. . . . Le juge est souverain. Mais, comme entre souverains, il serait difficile de composer un tribunal, le juge est unique. Tandis que en Amérique, l'arbitrage, justice de plain-pied, se rend par des commissions, où, dans la pureté du système, les nationaux seuls pénètrent, en Europe, l'arbitrage, justice en haut, émane, aussi loin qu'on puisse remonter sur terre, d'un arbitre souverain, unique, étranger. For all this there were good reasons. The reference of disputes to one or more persons agreed upon was in accordance with the genius of our people, and was only an expansion of existing practices. The Americans had in early days had much experience of arbitration in settling disputes as to boundaries between the States. The founders of the Republic had taken part in such controversies. Washington himself had helped to settle the Virginia frontier line. Arbitration was only doing for disputes between nations what was customary in interstatal contests. The colonist knew the frontiersman's advance into disputed territory, the surveyor's chain, the diplomatist's pen, and the commissioners' conference.' Private arbitration had always been common in those two countries. That is not true of the Continent. Neither in France nor Germany has private arbitration been so much used as it has been with us. There people are accustomed to settle their disputes in the manner and in the courts which the Government prescribes for them. It is comparatively rare to create by agreement tribunals for special disputes. I may hazard suggesting another reason for the priority of the two English-speaking countries. A despotic Government or a strong bureaucracy is naturally jealous of the interference of amateurs and outsiders. It does not care to invite the aid of an auxiliary that may become a master or rival. One cannot imagine a Louis the Fourteenth, a Napoleon, or a Metternich consenting to arbitrate anything. It is peculiarly the institution of free people. Business principles applied to politics do not suit the crooked ways of a certain class of diplomatists, or rulers with destinies,'' missions,' or colossal schemes of aggrandisement on hand. Two other conspicuous facts are to be noted. 5 P. xxxviii. International A. Bushnell Hart, The Foundations of American Foreign Policy, p. 93. |