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the Foreign Enlistment Acts and the Treaty of Washington, and the position which I have long held as an advocate for such international organization as might ultimately render possible the formation of permanent and self-vindicating international institutions, both legislative and judicial. I still believe it to be in that direction alone that we can look for any means which can by possibility prove efficacious in substituting reason for force in the decision of international differences of the magnitude that have hitherto given rise to war. I shall afterwards endeavour to explain to you the grounds on which I hope that such means may not ultimately be beyond the reach of the growing intelligence and civilization of mankind. In the meantime let us look at the expedient which is offered to us by the stage of intelligence and civilization which we have reached, and try to discover within what limits we may hope that it will prove useful,

COURTS OF ARBITRATION.

The success which attended the proceedings at Geneva in 1872, under the Treaty of Washington of the previous year, has led many to imagine that all, or almost all, the objects contemplated by the advocates of permanent international institutions may be accomplished on far easier terms by the appointment of a court of arbiters to judge of each special case as it arises. To this opinion. I can subscribe only very partially, and with many reservations.

1st. There is the leading objection that no means of enforcing the decrees of international courts of arbitration exist, or, so far as I see, ever can exist, independently of some form of international organization either general or partial. It is often assumed that international arbitration stands, in this respect, on a footing of equality with municipal arbitration. But such is very far from being the case. Municipal organization exists. Behind municipal arbitration stand the judicial and executive institutions of the state, and to the existence of these permanent institutions it owes a cogency to which, in present circumstances, nothing international corresponds. Those of you who have studied municipal law are aware that in our own law, what is called a "Deed of Submission" contains a clause of registration which ordains the submission, and decree when pronounced to be recorded; and you also know that an extract of this record, duly certified, which either party may procure, forms a warrant to him for "diligence," i.e. for the enforcement of the decree against the other party. By this simple expedient a decreearbitral, if resisted, can at once be rendered equivalent to a judicial decree. Even informal references in re rustica, inter rusticos, (rustici in this connection including merchants) found actions for implement, though they cannot, like decrees-arbitral under formal submissions, be made warrants for summary execution.

Something analogous to this arrangement, some expedient by which the decrees of an informal, and so to speak voluntary tribunal,

may be converted into the decrees of a judicial tribunal, having the physical force of the executive at its back, exists in all other systems of municipal jurisprudence. But to introduce such provisions into the law of nations would be to use idle words, because the law of nations, as yet, has neither tribunal nor executive, nor office of registration, nor any other efficient machinery or authoritative organization to trust to. In municipal law it is no doubt open to the parties to enter into a reference, or to decline it. No man can be compelled to arbitrate as he may be compelled to litigate. But, the reference once entered into, the option of accepting the decree or rejecting it is no longer given him. The case is very different in international law. Either party may repudiate the decree after it has been pronounced, as he may decline to negotiate the treaty by which the reference was arranged. If he did so wholly without reason, he would no doubt incur the censure of international opinion;-a censure to which powerful states have often shown themselves to be somewhat callous, and which national opinion within their own borders does much to alleviate. But reasons may exist. That such an occurrence is not even improbable is proved by the fact that, had the arbitrators at Geneva pronounced a decree awarding what were called "consequential damages" against us, we ourselves were quite prepared to repudiate it, and to go to war with America, and should have done so with the approval of Europe. A corresponding course was equally open to America, when these damages were refused by the arbitrators on the ground that they did not fall under the treaty. Either party might have insisted on his own interpretation of the treaty. To a certain extent this objection would have been obviated had the power of interpreting the treaty without appeal been included in the submission. Still his acceptance by either party of the sense put upon it by the arbitrators, like his acceptance of the final decree itself, would have depended solely on his good faith; of physical compulsitor-vi et armis except by the arms of the opposite party, there was and could have been none.

The partial expedients for giving validity to international decreesarbitral, suggested by our most distinguished jurists-Bluntschli, Goldschmidt, Calvo and others-all break down before this supreme difficulty. It is vain to define and limit the grounds of appeal whilst it is in the power of the parties to construe them and extend them at pleasure; it is vain to suggest recourse to the supreme court of the state in which the arbitration took place whilst the court has no power of execution beyond the limits of its local jurisdiction. Even a special and permanent international tribunal of appeal, or Cour de Cassation internationale, without a corresponding executive, could serve at most only as a means of calling in

1 As to those existing in the Roman law and in modern systems, see Projet de Régle ment pour Tribunaux Arbitraux Internatiaux, par le Dr. Goldschmidt, presented to the Institute, p. 62, et seq.

2 Goldschmidt, ut sup. p. 56.

more effectually the force of "opinion;" and opinion, in all probability, would go over to the winning side, which might very well chance to be that of the party which resisted the decree.

2nd. But apart from this fatal specialty, the limited sphere of operation to which it must always be confined renders arbitration a very partial substitute either for judicial action or for war in international relations; for (a) arbitration is a contract by which two parties agree to abide by the decision of a third. Arbitration consequently is possible only between two parties, both of whom possess rational and, as such, consenting will. A totally unreasonable or unconscientious person may be called into a court of justice, and made a party to a suit, but he cannot be made a party to an arbitration. By calling in the aid of a curator, the judge can dispense even with sanity, whereas the arbiter demands both sense and knowledge. This cuts off arbitration as a means of settling disputes between civilized nations and barbarians. Barbarians could not appoint arbitrators to whose decision civilized nations could trust, nor could they trust to the acceptance of their decision by barbarians even supposing it to be the result of adequate honesty and intelligence. If opinion, moreover, be but a slender compulsitor in the case of civilized men, in the case of barbarians it is no compulsitor at all. Arbitration is a proceeding which makes very high claims on the intellectual and moral qualities of the parties as well as of the judges. It consequently is applicable only between civilized nations, and between nations probably of a somewhat dispassionate temperament. If the conduct of civilized nations to barbarians be unjust, it is an injustice which may sometimes be prevented by the condemnation of civilized opinion, and in extreme cases even by armed intervention, as in the case of the slave trade, but it can never be prevented by arbitration.

(b) There are internal as well as external barbarians with whom civilized men cannot arbitrate. Arbitration between the government of Versailles and the Parisian Commune, identified as it was with the Red-Republic, would have been just as much out of place as between the Ashantees and us, or between a criminal and the public prosecutor.

(c) Arbitration is inapplicable where the question at issue has reference to the existence of the state, or its relative position amongst other states. Law must correspond to fact in the sphere of international relations, as in every other sphere. The state cannot permanently count for more than its real value. But no state could be expected to submit to voluntary arbitration the question whether or not its historical position had ceased to be its true one, or to accept an adverse decision, if it did. The acceptance of such a decision would no doubt be a proof of the fact which it affirmed; but such an acceptance could be brought about only by the fact having been previously ascertained by an unsuccessful war. In so far, e.g., as the Franco-German war was a fight for the hegemony of Europe, it did not admit of arbitration, because, if that question

must be decided, it could be decided only by a trial of strength. It was a question of fact which admitted of no voluntary solution; and in the solution of which, for practical purposes, probably even an international organization, armed with judicial authority and executive power, would have broken down. It was a question of right, no doubt, but it was a question of right which involved the previous question of might, and that question, where it assumes such magnitude as it did on this occasion, can be answered only experimentally. On the other hand, in so far as the matter in dispute was as to whether France was entitled to the boundary of the Rhine on geographical grounds, or whether Germany was entitled to Alsace and Lorraine on ethnological and historical grounds, it might perhaps have been dealt with by arbitration, though even to that extent it would have been extremely difficult, probably impossible, to induce either party to accept the mediation of neutrals which did not involve armed intervention. Perhaps Russia, Austria, England, Italy, and America combined might have stopped the war-perhaps they might now prevent its too probable recurrence. But no action on their part could have produced the new relations which resulted from the war. Arbitration-even judicial action-can only declare relations which already exist, whereas war brings about new relations, or converts relations in posse into relations in esse. War is a process of readjustment, and as such of advance or retrogression, and not simply a process of barbarous litigation, as is said so often. It does not deal simply with accomplished facts, as is the case with litigation in all its forms, arbitration included. It accomplishes the facts. It is on this ground that I fear the "Eastern Question," too, is beyond the reach of arbitration, that question, in its essence, being the question of the preponderance of Russia in the West of Asia and the East of Europe. Here there is, no doubt, one element favourable to its application which did not exist in the case of France and Germany, -viz., the willingness of one of the principal parties-the Turks -to place themselves unreservedly in neutral hands.1

These three cases, or classes of case, are the only ones which occur to me as likely permanently to resist the application of arbitration, as they have hitherto resisted all other forms of peaceful intervention. They leave over all ordinary disputes and disagreements between civilized nations which admit of being measured by pecuniary compensation, or settled by the cession or exchange of territory to the extent of rectifying boundary lines, rights of navigation, fishing, and the like, in short all contestations juridiques, (Rechtstreite) as Dr. Goldschmidt would say. Within these limits arbitration may be extremely valuable in removing causes of irritation by which international cordiality is interrupted, and which

1 As regards the past, I must reluctantly concur with Dr. Goldschmidt, as to the very limited sphere within which arbitration could have been employed as a substitute for war. Ut sup. p. 8.

2 Ut sup. p. 8.

may eventually even lead to wars. But it is not out of questions such as these that wars generally arise, either proximately or eventually. Such a question as the Alabama claims might no doubt have been the causa occasionalis of a war, if America and England, or either of them, had been bent on it at the time. But I no more believe that, in itself, it could have been the causa efficiens of a war, than that a quarrel between two ladies about a pair of gloves could have been so, or that the Franco-German war was caused by the German Emperor turning his back on the French Ambassador when he was drinking his waters at the bath, or rather perhaps after he had drank them. If the Alabama question had not been settled by arbitration it would have been settled by diplomacy, though probably enough not till after long years of harassing, anxious, and irritating negotiation. It is as a new and improved form of diplomacy then, rather than as a substitute for war, that in my opinion we must regard international arbitration. In international more than even in municipal relations voluntary arbitration must always be of the nature of a friendly suit, and the first condition of its possibility must always be that both parties have determined not to go to war.

Wars arise from deeper causes than arbitration can touch, and if they are to be averted at all, it must be by deeper remedies. Of these I can see but two. The first, and perhaps the only one, is time and progress,-moral, intellectual, and political progress within states, and consequently juster conceptions of international relations. The second, is a firmer, because more rational international organization on the de facto principle, which I shall attempt to describe to you hereafter, but of which for the present I can speak only as a grand peut-être.

GRADUATION IN LAW,-THE DEGREE OF B.L. SOME time ago (ante, p. 535) we mentioned that regulations had received the sanction of the Queen in Council for the establishment of a new Law degree in our Universities, to be called B.L.-Bachelor of Law. We now propose to consider briefly whether there was any occasion for its establishment-whether it calculated to serve any purpose in the advancement of higher legal education-and whether it deserves encouragement from those who have it in their power to influence the course of study to be followed by aspirants to the legal profession.

As the requirements of the new degree are materially lower than those of the one previously established-LL B., Bachelor of Laws, the expediency of having a second depends upon whether the older one was proving useful by attracting students to extend the range of their studies beyond the minimum required for a professional qualification.

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