Great Britain thought it consistent with her dignity to recede from her strict right, and adopt a compromise from considerations of convenience. Embassies. The established practice amongst Nations, of accrediting Resident Envoys to foreign Courts, facili- Resident tates in a high degree the settlement of international disputes by amicable conference; and as long as Resident Embassies continue to be maintained as normal channels of international communication, there will be a permanent guaranty amongst nations, that some attempt will always be made to settle their disputes by reason, before they have recourse to arms. This guaranty will be increased in strength, in proportion as Diplomacy acquires the character of a Science, and the Diplomatic Envoy comes to be selected from those persons, who have made the Rights of Nations their peculiar study. The Roman people seem at a very early period of their history to have appreciated the importance of submitting their disputes with other Nations to a council of judges, well versed in the science of international Right, before they had recourse to arms; and it was the province of the College of Fecials not merely to H advise the State in negotiating peace and alliance, but to furnish, when required, ambassadors qualified to demand redress for injuries received from other Nations, and to declare war against them, if adequate redress should not be granted". tion. § 5. Arbitration is another method of bringing Arbitrainternational disputes to a peaceable termination, where direct conferences between the Representatives of the Nations, which are at issue upon a question of Right, have failed to bring about an amicable settlement. When Nations have agreed to refer any Cicero de Officiis, L. I. c. 13. Cicero de Rep. L. II. c. 17. Livii Hist. L. I. c. 32. question in dispute between them to Arbitration, their good faith is pledged to abide by the decision of the Arbitrator, unless the decision should involve a clear departure from the terms of the reference, or should be in absolute conflict with the rules of justice, and therefore incapable of being the subject of a valid international compact, or should be the manifest result of fraud and collusion with one of the parties. A departure from the terms of the reference was alleged on the occasion, when the United States of America and Great Britain agreed by the Convention of London (29 Sept. 18277) to refer the points of difference which had arisen in the settlement of the boundary between the British and American dominions, as described in the fifth Article of Treaty of the Treaty of Ghent, to some friendly Sovereign or State, who should be invited to investigate and make a decision upon such points of difference; and they further agreed that the decision of the arbiter, when given, should be taken as final and conclusive, and should be carried without reserve into immediate effect by Commissioners appointed for that purpose by the contracting parties. Notwithstanding the absolute terms in which the parties to this Convention bound themselves to acquiesce in the decision of the Sovereign arbiter, the Senate of the United States considered that the opinion of the King of the Netherlands on the case referred to him, which he delivered in writing to the Plenipotentiaries of the United States and of Great Britain on 10 Jan. 1831, was not obligatory on the United States, on the ground that the award did not follow the submission, but merely Ghent. 7 Martens, N. R. VII. p. 491. British and Foreign State Papers 1826, 7. p. 1005. 8 Message of President Jack son, 6 Dec. 1831. British and recommended a conventional line, which it designated"; and accordingly, upon the advice of the Senate, the President of the United States opened a further negotiation with the British Crown. Cases of fraud and collusion on the part of an international arbiter are rare. Puffendorf 10 alludes to an instance in which the Emperor Maximilian and the Doge of Venice submitted their differences to the arbitration of Pope Leo X, while each of them privately tampered with the Roman Pontiff to declare on his side. Cases in which the decision of the arbitrating Power is in direct conflict with the rules of justice are equally rare. They occur for the most part where the arbiter has some advantage in view, which may accrue to himself from an unjust decision, and where he is sufficiently powerful not to fear the resentment of the parties, who have deferred the settlement of their conflicting claims to his decision. Of this character was that decision of the Roman people, which Livy narrates with very strong reprobation, when the cities of Ardea and of Aricium hav- Ardea and ing deferred their dispute in regard to the sovereignty over a certain country to the arbitration of the Roman people, the Assembly of the Roman Tribes. adjudged the territory in controversy to be the property of the Roman State". Grotius 12 has very justly observed, that although in a doubtful case of title both Nations are bound to seek for conditions of compromise rather than to have recourse to war, yet this obligation presses more strongly on the Nation which makes a claim, than on the Nation which is in 9 American Annual Register, VI. p. 141. 1830, 31. p. 146. 10 Puffendorf, Law of Nature and of Nations, L. V. c. 13. § 4. Guicciardini Istoria, Tom. I Livii Historia, L. III. c. 71. 12 Grotius, L. II. c. 23. § 11. Wolff, Jus Gentium, § 576. Aricium. possession of a thing; for it is agreeable not only to civil but to natural law, that the possessor of a thing in all cases of equal claim should be in a more favourable position than the party who seeks to disturb him Melior est conditio possidentis. A claimant accordingly, who may be satisfied of the goodness of his cause, but cannot prove that a party in possession is wrongfully in possession of a thing, cannot lawfully make war, because he has not the right to compel the other to give up possession. It is not necessary that Nations, in referring any matter in dispute between them to the arbitration of a third party, should select an independent State or a Sovereign Prince ast arbiter. It was by no means unfrequent in the middle ages for Nations to refer the decision of matters, which might be in controversy between them, to the arbitration of the Faculty of Law in some famous University. Thus we find the Doctors of the Law School great Law School of Bologna continually called upon to furnish arbiters in the disputes between the Italian Republics. On the other hand, the most powerful States in modern times have not hesitated to refer to Commercial Tribunals the decision of questions, which may have arisen between themselves and a less powerful State, and in which the commercial interests of their subjects have been concerned. Thus Great Britain has on two very recent occasions agreed Senate of with Portugal to refer to the Senate of the city Hamburg. of Hamburg the decision of claims made by British Merchants against the Portuguese Government, and the Senate of Hamburg has undertaken on both occasions the arbitration; and it has decided the dispute on the first occasion in favor of the Portuguese Government13, and on the second occasion in favor of the British Merchant 14. of Bologna. 13 Croft's Case, 1858. 14 Shortridge's Case, 1861. Confedera § 6. Arbitration, writes Vattel, is a very reasonable mode, and one that is perfectly conformable to the law of Nature, for the decision of every dispute which does not directly interest the safety of a Nation. Accordingly we find it sometimes a matter of stipulation in treaties of alliance between independent States, that their disputes shall be submitted to arbiters, in case they cannot adjust them by amicable conference. Such a provision is more particularly a feature of Federal Pacts, under which neighbouring States associate themselves together for the permanent purpose of mutual defence, and are recognized internationally in the character of a Confederated Body of States. Thus it was provided by Article XI of the Act which constituted the Germanic Germanic Confederation, that the Confederated States should tion. not make war upon one another under any pretext whatsoever, nor should prosecute their differences by force of arms, but should refer them to the Diet. The Diet on the other hand has undertaken to mediate between the States which may have differences with one another; and if its mediation should fail, then to refer their dispute to an Austegral tribunal (Austrägalinstanz), to the judgment of which the litigant parties shall submit without appeal. After a similar design was the project of the Abbé St. Pierre for securing a Abbé St. perpetual peace amongst the European Powers, which was circulated in Europe shortly after the conferences which led to the peace of Utrecht, and at which conferences the Abbé was present. By a kind of pious fraud, with a view to recommend it more strongly to the adoption of Sovereign Princes and their ministers, he attributed the project to King Henry IV. of France 15 L. II. c. 18. § 329. Pierre. |