« AnteriorContinuar »
and the events of January, 1815, soon supervened. But while the battle of New Orleans was being fought by Andrew Jackson, another treaty, signed at Ghent on December 24, 1814, was on its way to America. The two arbitrators it appointed, one from each side, to decide on the possession of Passamaquoddy Bay, agreed on their award without referring the matter, as they were empowered to do in case of disagreement, to a friendly sovereign or state. The issue regarding the north-east and St. Lawrence river frontier, upon which an agreement proved impossible, was submitted to the King of the Belgians. But his award, not having followed the indications of the treaty itself, was set aside by the mutual consent of the two Powers; and the indemnity due to British subjects was fixed by direct negotiations between England and the United States.
It was necessary to record these facts with some detail, because the provisions of that treaty have served as the basis and model on which all subsequent agreements of this nature have been framed. They mark a stage in international law. It was not the principle itself, but its thorough development and application that was novel; and its full and loyal recognition gave promise of endurance.
Thus in questions of minor importance, the principle of arbitration began now to be applied with a steadily increasing frequency and with success. Differences such as formerly would have been left to accumulate, smoulder, and embitter international relations, until they provoked overt hostilities, were now solved with ease ; and between 1843 and 1867 about twelve cases of arbitration are recorded, the origin of some of them dating back to the beginning of the century.
But the case which raised arbitration into a universally recognised institution of the first importance, is the Alabama case, so-called. Both for its complexity, for the magnitude of the claims and the vast importance of the issues involved, for the fundamental principles laid down and the mechanism devised for its solution, it may fairly be considered as an event of great political consequence. The statesmen who sought, for some six years, a way out of the difficulty, had to deal not simply with material interests and cold matters of fact; they had to consider those subtle moral causes, the secret
workings of popular sympathy and antipathy, which, if left to follow their own course, generally find vent in war. It is therefore not easy to overrate the sagacity and self-restraint of a policy which rendered a pacific solution possible, or the diplomatic skill displayed in negotiations of the greatest delicacy.* Much firmness was needed to withstand popular outcry, and it was a true patriotism which preferred an honourable compromise to the risks of a war, the consequence of which might have proved incalculable.
The circumstances of this case are generally known, and have given rise to a whole body of special literature.
The Court, which assembled at Geneva on December 15, 1871, was composed of Count F. Sclopis, president, designated by the King of Italy; M. Jacques Stæmpfli, by Switzerland; Baron d’Itajuba, by Brazil ; Mr. Charles Adams, by the United States; and Sir Alexander Cockburn, by the United Kingdom. Its decision, delivered on September 14, 1872, at the Hotel de Ville, with great solemnity and amid salvos of artillery, rejected the claim of the United States for indirect damages, but awarded the sum of fifteen and a half million dollars for direct damages.
That memorable act, which redounded to the honour and prestige of the two great countries concerned, and earned the gratitude of all thinking men, initiated a new era, not only in international law, but in the relations of the peoples of the earth. It marks a stage in the civilisation of the human race; it is the first instance in which a court of law, composed of private individuals, sitting as judges and guided by fixed rules, applied the forms and the procedure usual in civil litigations to the adjudication of great international interests.
An event of such magnitude and importance could but impress powerfully the minds of men, and influence their actions. In spite, or, rather, because of the vast development
* President Garfield, in receiving the letters of recall of Sir Ed. Thornton, the British Envoy in Washington, thanked him for “the zeal and ability with which he strove to ingraft the principle of international arbitration upon the Law of Nations, and aided in this good result and in establishing a beneficent rule for the future conduct of all Governments."
of militaryism in Europe, men looked with renewed confidence upon a mode of averting war which had already established so remarkable a precedent. It was, therefore, but natural that, not only thinkers and philanthropists, but jurists also and statesmen, encouraged by a success so signal, should now persevere in extending its scope. Great ideals, if somewhat visionary and vague, serve at least to impart to the public mind a thirst after better things; and the ventilation of that which is still a theory familiarises us with the possibility of its practical attainment. The general adoption of the principle of arbitration was no longer regarded as an Utopian dream.
The success of the first High Court of Arbitration was, reasonably enough, looked upon as presaging the establishment of some such permanent authority. But the Court of Geneva decided according to rules specially laid down ; and one of the chief difficulties in formulating the provisions of the Treaty of Washington was the uncertainty which prevailed as to what were the recognised duties of neutrals. Civilised nations were not agreed upon fixed principles—there did not exist codified body of International Law. The first germs, the component elements, of such a code might be gleaned from a few axioms commonly admitted, from such general declarations of international duties and obligations as great treaties record, and from compacts such as the Geneva Red Cross Convention of August 22, 1864.
A task of this nature, calculated to lessen friction and lighten, in a sense, the work of diplomacy, appeared a formidable undertaking ; not only because of the dearth and vagueness of admitted rules, but also because of the special and ever-conflicting interests, the peculiar habits and dispositions of nations, the change of circumstances through political events, and the divergent systems of government. Furthermore, though certain principles were generally recognised, no State, it was thought, would limit its freedom of action by binding itself to a strictly defined code which related to all future contingencies.
The first systematised body of regulations of this kind is due, curiously enough, again to the Federal struggle in America.
President Lincoln, anxious to check as far as possible the evils of war, by regulating its action within legal limits, commissioned Professor Franz Lieber to draw up a code determining the rights and duties of armies in the field;* and that work still subsists as the most comprehensive treatise on the subject.t
The international complications to which that same struggle gave rise urged the Social Science Association to appoint, in September, 1866, a Committee for the Codification of the Law of Nations; and Mr. D. Dudley-Field was urged to undertake a labour which is identified with his name. At about the same time Herr 1. C. Bluntschli, the celebrated
Professor of Heidelberg, published his Droit International Codifiė, which is now the standard text-book on the subject.
The establishment, however, of a permanent High Court of Arbitration offers greater and, for the time being at least, insuperable difficulties. It is urged that such a Court, constituted so as to ensure impartiality and exclude special interests, is desirable, not only as likely to encourage nations to accept its jurisdiction, but as avoiding delays which give scope to the development of popular passions, and thus frustrate, as in the case of the Clarendon-Johnson Treaty, the object aimed at. But the various proposals | made for the composition and the mode of procedure of such a Court are, however ingenious, clearly impracticable, each being open to some grave objection. The disposition, and indeed the readiness to 'submit, in certain circumstances, a definite issue to a specially constituted tribunal, is as reasonable as it is advantageous. But it is impossible to expect that nations would confide their interests, and perhaps their very existence, to the
* Department of War : General Order No. 100, Instructions for Armies in the Field. Prepared by Franz Lieber. 1863. 8vo.
† An effort was made to supplement this first endeavour, by the adoption of an International Code of fifty-six articles, which was discussed at the Conference assembled on the invitation of Russia at Brussels in July, 1874. That attempt, unfortunately, proved abortive.
| Draft Outlines of an International Code. New York, 1872. Second edition, 1876. § Translated from the German by C. Lardy. Paris, 1874. Fourth edition, 1886.
Sir Edmund Hornby, late Judge of the Supreme Court of the Levant, and also of that of China and Japan, contributed to the Fournal of the International Arbitration and Peace Association a very able scheme for such a tribunal.
judgment of a body of jurists, diplomats, and thinkers, however eminent or impartial, by binding themselves à priori to accept its decisions unreservedly. It seems impossible to hope that a body of men could be secured, even for a stated period of time, who, though sufficiently qualified in every other respect, would not be subject to the influence of national predilections, of passing events, or of the prevailing waves of public sentiment. Furthermore, what guarantee could there exist that a compact of this nature, even if subscribed to by a sufficient number of States, would be faithfully carried out or respected by all the signatories ? An aggressive Power, an ambitious soldier, a masterful politician, might easily violate and turn it to his own advantage.
This brings us to the consideration of a third desideratuma supreme central authority which would see to the execution of the decrees of the Court, and, in case of need, impose its jurisdiction ; for the realisation of the scheme must depend primarily upon the certainty that the sentences of the Court would be valid. But a recourse to force, which arbitration is designed to avoid, would thus, in all probability, be rendered as frequent as heretofore. In such case the remedy might prove worse than the disease ; for a forcible imposition of decisions against which a nation rebelled, might give rise to the most iniquitous combinations, under the pretence of the common good.
Since, therefore, this' capital difficulty in the constitution of a permanent court is, in the actual condition of international relations, impossible of satisfactory solution, the more sober advocates of the principle of arbitration are content with its frequent application in individual cases as they arise, trusting for its wider extension to the progressive enlightenment of the public conscience, and to the gradual prevalence of ideas of conciliation among nations.
The practical benefit of this way of thinking is manifested in the daily increasing number of associations the object of which is to promote the acceptance of the principle of arbitration. Of these the most important is the Institut de Droit International, founded at Ghent in September, 1873. The results obtained by the very powerful propaganda thus set on foot,