fij^'



III




THE LIBRARY

OF

THE UNIVERSITY

OF CALIFORNIA

LOS ANGELES



,.Vv-"



UNIVERSITY OF EDINBURGH.

International Arbitration :
The Rectorial Address of
Sir Robert Finlay, K.C.,
M.P., Attorney 'General.



Printed and Published at the

STUDENT OFFICE, Darien Press,

Edinburgh, 1904.



bi^xrhNCE -Ni:, 1 1




i -oife.;



UNIVERSITY OF EDINBURGH.

International Arbitration :
The Rectorial Address of
Sir Robert Finlay, K.C.,
M.P., Attorney=General.



Printed and Published at the

STUDENT OFFICE, Darien Press,

Edinburgh, 1904.



XX :

International Arbitration f^ff^

My first duty is to return you my very

sincere thanks for the high honour you i

have done me in electing me as Rector !
of this great University. There is, I

beheve, no one who would not be proud ;

of the distinction which your suffrages 1

confer. Need I say, what it is to me ? j

My sense of the honour of the position j

is inextricably intertwined with memo- j
ries of days spent here among students
of a former generation, of Professors

now departed, of early friendships, of i

those debates in which we prepared '
ourselves for the battle of life which

still lay before us, of Rectorial contests '

in which I took part, not as a candi- \
date, but as an elector. It seems but

yesterday since, as a student, I listened J

to the Rectorial Address of the first of i
your Rectors, Mr Gladstone. I have

perhaps to-day special reason to indidge '

in the wish, "Could Time, his flight j
reversed, restore the hours" — those

hours in which on such an occasion as j

this it was my privilege to be a listener i

only. But I trust I can rely on your j

indulgence to one who at least yields to 1

none of those great men who have pre- |

ceded him, in affection for our Univer- i

sity and in the earnest desire that its i

great traditions may be handed down *

unimpaired to future generations. !

I cannot but feel that a tinge of sad- i

ness is thrown over this occasion by the I

fact that the death of your last Lord i

3



4(... '^



Rector diiriiig his term of office is still
fresh in the memories of all of us. It is
not for me to speak of the many public
services of that very distinguished man
Lord Dulferin. With his country, we
deplore his loss.

The echoes of his last speech, when
as Lord Rector he addressed you here,
have hardly died away. May I recall
another occasion on which at a sister
University Lord Dufferin spoke on
some questions, connected with educa-
tion, which are still burning ? In that
brilliant address he stated emphatically
his opinion that the classical languages
must continue to form an essential part
of education, but added some observa-
tions, which are well worthy of atten-
tion, upon the method in which they
are taught. He told the students
whom he was addressing that, in his
own case, after fourteen years at school
and college devoted to the study of
Latin and Greek, he had a very slender
knowledge of either, but that in later
life he set about learning Greek as he
would have set about learning any
modern language, with the result that
in a comparatively short time he was
able to read Greek as easily as French.

If classical education is in any dan-
ger, it is due to the paucity of our
residts in the case of the average youth,
as comjDared with the infinity of our
pains. But threatened institutions live
long, and I trust that it is so with
classical education in this country. No

4



translation can enable you to realise
the grandeur and the i^athos of the
Iliad — the delight of battle

" Far on the ringing plains of windy Troy."

No translation can reproduce

" All the charm of all the muses

often flowering in a lonely word,"

which you find in the pages of Virgil.

We live in an age of examinations.
Some of us find them a weariness to
the flesh, and they result sometimes,
but I hope not with many of you, in
vanity and vexation of spirit. It is
interesting to recall that at a time when
this Univei-sity had attained the highest
pitch of fame and world-wide celebrity,
examinations had, at least in the Faculty
of Arts, fallen into almost entire disuse.
Edinburgh University has always re-
cognised that the true function of a
University is to teach. A degree should
denote, and has always denoted here,
not merely that the recipient possesses
a certain amount of knowledge on the
day of examination, but that he has
gone through a course of academic
training. Examination is useful, indeed
necessary, in order to ascertain whether
the student is really passing through
such a course of mental discipline, and
without it his attendance at the re-
quired classes might become a mere
fonn. But the function of examination
ought always to be subsidiary to the
function of teaching. The examination
system is a good servant but a bad



master. It is an unhealthy symptom if
the true work of any University, the
work of training the intellect, is ever
subordinated to the question what
studies will pay best in the Examina-
tion Hall. The real test of fitness to
enter any profession is not to be found
in the possession of a certain amount of
information at the moment of passing
the threshold, but in the fact that the
candidate has passed through a suitable
course of intellectual discipline. It is
fatal to all the best teaching if the
enthusiasm of teacher and taught is to
be chilled by the reflection that a par-
ticular line of thought or of study,
however inspiring and however en-
nobling, may perhaps not be the best
adapted to ensure success in the
Schools.

You may possibly think that the
observations which I have ventured to
make as to the tyranny of examinations
have been prompted by recollections of
my own student days. Those days are,
indeed, very vividly recalled to me by
the audience which I have the honour
of addressing, and by the presence at
my side of my old friend and teacher,
your Principal, Sir William Turner.
But from such academic topics I turn
to one which is more immediately
associated with the active work of life.

I had hoped to address you last
November, but this was rendered im-
possible by the fact that I was engaged
during the autumn as counsel for Great

6



Britain upon two cases of International
Arbitration, one of them as to the
boundaries of Alaska, and the other
as to the competing claims against
Venezuela.

As such subjects have naturally been
a good deal in my mind, it may be re-
garded as not unsuitable that I should
lay before you some thoughts which
have occurred to me upon International
Arbitration and some alUed topics
which have been closely connected
â– vWth it in history. The theoretical
interest of the subject of International
Arbitration is great, its literature
enormous ; it has been intimately
associated in the past "with ambitious
schemes of International control, and
â– with speculations, some of which seem
to us nowadays very fantastic. Its
history reaches back to the earliest
times of classical antiquity and runs
through the Middle Ages, and in our
own time the subject has assumed pro-
portions little dreamt of half a century
ago. It has a great practical interest,
for, mth some necessary limitations,
there is no doubt that Arbitration is
destined to play an increasing part in
the history of nations.

The establishment of the permanent
Tribunal at the Hague has been an
object-lesson for Europe and for the
world. It was indeed a striking spec-
tacle that was presented at the Hagiu)
last November. In that picturesque
little capital, so rich in historical asso-



ciations, and where at every turn one is
reminded of the mighty dead, there
were gathered together the represen-
tatives of eleven different nations, of
various races and languages, from the
old world and the new, for the purpose
of submitting their differences to the
friendly arbitrament of the Tribunal
which will be for ever associated with
the name of the Hague.

It was said by Frankhn, "We make
daily great improvements in natural,
there is one I wish to see in moral
philosophy, the discovery of a plan
which will induce and oblige nations to
settle their disputes without first cutting
one another's throats." It was in the
year 1780 that Franklin wrote these
words, and his language seems to imply
that the remedy which he longed for
had not yet been found. It is in-
deed a remarkable fact that Inter-
national Arbitration, as a means of
preventing those sanguinary methods
which he deprecated, had fallen into
almost complete disuse in the sixteenth,
seventeenth, and eighteenth centuries.
Its efficacy had, however, been proved
long before the time of Franklin, though
it must be admitted that the method
which he desiderated of obliging nations
so to settle their differences is still to
seek.

It is not surprising that among the
communities of ancient Greece the
necessity for some mode of peaceful
solution of disputes should have been

8



realised. The countiy was divided
among a large number of petty States,
allied indeed by blood, by language, by
religion, by association in the national
games, by a common contempt for their
Barbarian neighbours, but frequently at
war with one another — war which would
have been perpetual had there been no
means of adjusting those disputes
which were constantly arising. Thucy-
dides puts into the mouth of a Spartan
king the sentiment that it is not lawful
to treat as a wrong-doer one who is
ready to arbitrate, and what we should
call an arbitration clause was a common
feature in Greek treaties. The records
of Greek history present many instances
of recourse to arbitration. Sometimes
the arbitrator selected was a friendly
State — sometimes one who had attained
the distinction which was most prized
in Greece, that of winner at the
Olympic Games — sometimes the Del-
phic Oracle.

Accounts have come down to us of
the earliest perhaps of those arbitrations,
which took place about six hundred
years B.C. One of those wars so fre-
quent in the history of Greece, insignifi-
cant in their scale, but romantic in their
incidents, and often fraught with grave
issues for the future of the world, had
broken out between Athens and
Megara. Each claimed the right to the
possession of an island bearing a name
which was destined to become immor-
tal, Salamis. The war languished, and

9



the Athenians became so weary of it,
that they are said to have passed a law
condemning to death any one who pro-
posed that it should be renewed. But
the possession of Salamis was to
Athens a matter of life and death.
There was one man, and one only, in
Athens, who saw this clearly, Solon,
the law-giver. I will not stop to re-
mind you of the picturesque stratagem
by which he is said to have goaded his
countrymen into action, without in-
curring the penalty of the law. The
war was resumed, and when it had
gone on for a long time both sides
agreed to refer the dispute to the
decision of five Lacedeemonian arbitra-
tors, whose names have been preserved
by Plutarch. The arguments used be-
fore this tribunal sound strangely in
modern ears. The sons of Ajax, who
fought and died at Troy, had, it was
said, became Athenian citizens, and had
presented the island to the Athenians.
Athens was the chief city of the
Ionian race, and the Delphic Oracle had
once spoken of Salamis as Ionian.
The dead in the tombs of Salamis were
found to have been laid out towards
the west after the Athenian, and not to-
wards the east after the Megarian
fashion. But the decisive argimient
remained. Both sides appealed to the
canonical authority of Homer. The
controversy raged around one passage
in the Catalogue of the ships, but the
litigants were not agreed as to the
10



true text. The Megarians brought
forward a couplet, which, if genuine,
showed that Salamis had been classed
"with to^ms of Megaris. Solon, on
the other hand, recited to the arbitra-
tors a passage containing the famous
verse in which Ajax is said to have
ranged the twelve ships wliich he
brought from Salamis alongside of the
Athenians — a verse which Solon him-
self is said to have iuterjDolated. The
arbitrators rose above all racial pre-
judices, and adjudged the island to
Athens.

There was one celebrated institution
in ancient Greece which has been re-
garded by some authors as intrusted
with the function not merely of induc-
ing but of compelling submission to
arbitration. The Amphictyonic Coun-
cil has been spoken of as commune
GrcecicB consilium, as the States General
of Greece, as clothed with power to
decide upon disputes between States
and to enforce its decisions. But little
trace is to be found in history of its
exercise of any such exalted functions.
The Amphictyonic League was a con-
federacy of races dating from the
earliest times, and ultimately embracing
the most powerful of the Greek States.
It was in its essential features a reli-
gioas association, formed for the pro-
tection of the temples of Apollo and
Demcter. One of the aims of the con-
federacy was to mitigate the horrors of
war between the various States which
11



it embraced. The quaint form of oath
has been preserved by iEschines. By
it the members swore that they would
never destroy an Amphictyonic town,
that they would never cut it off from
running water, either in peace or in
war, and that if any one made spoil of
the treasure of the God, they would
punish him with hand and foot and
voice and all their might.

For the enforcement of its decrees
the Amphictyonic Council, like the
Pope when he intervened in the dis-
putes of princes in the Middle Ages,
had at its disposal only spiritual
weapons. To be excluded from the
Pythian Games and the temple at
Delphi was a sentence of excommuni-
cation. But the Council from time to
time called in the aid of the secular
arm, and it made a memorable and
disastrous contribution to Greek his-
tory by the part it played in accelerat-
ing the subjugation of Greece by
invoking the aid of Philip of Macedon
in the second and third Sacred Wars.

Two curious instances of submission
to the arbitration of the Amphictyonic
Council are recorded, but it did little if
anything in the way of promoting
peace among the communities of Greece.
Stat magni nominis umbra.

To the history of International Arbi-
tration the Romans contributed little or
nothing. While they were making
their conquests, they were little dis-
posed to submit their claims to any
12



arbitrament but that of the God of
battles. They were never troubled
vrith any doubts as to the justice of
their wars. Cases justifying the ver-
dict — Eas res puro xyioque duello re-
petundas censeo — were, as Hallani says,
prodigiously frequent in the opinion of
the Romans. When their conquests
had been completed, there were no
nations left to arbitrate with. The
Pax Romana reigned throughout the
world, and the Senate or Csesar were
its supreme arbiters.

There is, indeed, one institution
datinor from the earliest times of Roman
history, the importance of which, as
bearing on Inteniational Arbitration
and International Law, has been ex-
aggerated as much as that of the
Amphictyonic Council. Some modem
authors have found in the Fetiales a
permanent tribunal of Arbitration be-
tween Rome and other nations, to
whose decision based on the principles
of International Law was referred the
question of the justice or the injustice
of every war before it was undertaken.
Bossuet speaks of them as a holy in-
stitution which puts to shame those
Christians into whom even their religion
has not been able to inspire cliarity and
peace. A distinguished modern author
on Inteniational Law (Calvo) says:
"Among the Romans no war was
declared without the intcrscntion of
the Fetiales, whose principal mission,
according to Plutarch, was not to per-
LS



mit hostilities before every hope of
obtaining arbitration was extinguished."

It has, however, been shrewdly re-
marked that there is not a single
instance in Roman history in which the
Fetiales pronounced unjust any war on
which their country was bent. Theh*
real function was that of fulfilling those
curious formalities in the declaration of
war and in the conclusion of peace, wliich
to the Roman mind were so essential.
It is on points of fonu only that we
find them consulted, and the Jus
Fetiale, which some have supposed to
be synonymous with International Law,
was in fact concerned only with its
procedure. Whatever the origin of the
institution, its function was but to lend
the sanction of form to that upon
which the Senate and the people of
Rome had determined.

The greatness of Rome and the per-
manence of her empire formed the
inspiration of the gi*eatest of Roman
poets. In his majestic lines we still
can realise that passion of empire
which ennobled the Roman race.

" Now, thy Forum roars no longer,

fallen every purple Caesar's dome —
Tho' thine ocean-roll of rhythm

sound for ever of Imperial Rome."

Even after ''the fierce giants of the
North" had broken in, men could not
believe that the Empire of Rome had
indeed come to an end. They had
believed it eternal — Imperium sine fine
dedi — and its traditions were trans-
14



ferred to Emperors elected beyond the
Alps.

That the Emperor was indeed the
heir of all the prerogatives of Im-
perial Rome was throughout the Middle
ages assumed as too clear for argument.
In that most curious of treatises, De
Monarchid, Dante devotes himself to
provingthat there must be one Sovereign
or Emperor supreme above all others —
that God had given the sovereignty of
the world to the people of Rome, and
that the Emperor as wielding that
authority was independent of the Pope.

In Dante's view universal monarchy
is necessary for the good of mankind.
He argues that there must be some
means of deciding, and deciding autho-
ritatively, controversies between dif-
ferent States. " It is manifest," he
says, "that there may be controversy
between any two princes where the one
is not subject to the other, either from
the fault of themselves or even of their
subjects. Therefore between them there
should be means of judgment, and since
when one is not subject to the other,
he cannot be judged by the other (for
there is no rule of ccpials over equals),
there must be a third power of wider
jurisdiction within the circle of whose
laws both may come ... we must
come to that judge who is first and
highest, by whose judgments all con-
troversies must be directly or indirectly
decided, and he will be Monarch or
Emperor. Monarchy is therefore neces-
15



sary to the world, and this the philo-
sopher saw when he said, "The world is
not intended to be disposed in evil order,
' in a multitude of rulers there is evil,
therefore let there be one Prince.'"*

That this monarchy was given by
God to the people of Rome Dante
proves in many ways. ^neas, the
father of the Roman people, was the
most virtuous of men. The people of
Rome were the noblest of all peoples,
and were rightly preferred over all
others. The portents of Roman story,
vouched by Virgil and by Livy, attested
the favour of Heaven. That holy, pious,
and glorious people, Populus ille sanctus
jnus et gloriosus, sought but the good
of the world in subduing it. The
Romans won the world by the wager
of battle, which declared the judgment
of God, and Dante actually says, re-
ferring to the crown of empire, that the
Roman may say with the Apostle, " Be-
posita est mihi corona justiticB, repos-
ita scilicet in Dei providentid (Btemd."f

In thus establishing the right of the
people of Rome to universal dominion,
Dante assumed that he had established
the same right as still existing in the
Emperor. In his eyes, the Emperor was
still the chosen of God. The only
function of the so-called Electors was
to declare the will of God. ''Solus
eligit Deus, solus ipse conjirmat," | and

* De Monarchid (Church's translation),
book i., chap. 10.

i Ibid.,\\.\\. X Ibid./ni. le.

16




II DEanzo



in the Emperor, so divinely appointed,
were vested all the rights of the Roman
people to the dominion of the world.

This curious treatise must for ever be
interesting as affording a glimpse into
a world of thought which seems so
strange to us, and as picturing the
intense convictions of one of the greatest
of men.

The Emperor was no mere arbitrator
whose jurisdiction reposed upon con-
sent. His claim was that he stood
above all other kings of Europe, and
was entitled to regulate and coerce
them. "Placed in the midst of Europe,"
says Mr Bryce, " the Emperor was to
bind its tribes into one body, reminding
them of their common faith, their com-
mon blood, their common interest in
each other's welfare. And he was there-
fore above all things, professing indeed
to be upon earth the representative of
the Prince of Peace, bound to listen to
complaints, and to redress the injuries
inflicted by sovereigns and peoples upon
each other, to piuiish offenders against
the public order of Christendom ; to
maintain through the world, looking
down as from a serene height upon the
schemes and quarrels of meaner poten-
tates, that supreme good without which
neither arts nor letters, nor the gentler
virtues of hfe can rise and flourish."

It was a noble dream, but it never

was translated into fact. A vague

predominance among the princes of

Eurojjc was indeed accorded to the

17



Emperor, but his claims were merely
the after-glow of that sun of Roman
empire which had set for ever —

" As mournful light
That broods above the fallen sun,

And dwells in heaven half the night."

The influence of the Holy Roman
Empire dwindled, until in the eighteenth
century Voltaire but expressed the
sentiment of Europe, when he said that
it was neither Holy, nor Roman, nor
an Empire.

Much more real than the majestic,
but shadowy, pretensions of the Empire
was the influence exerted in mediaeval
Europe by the Papacy. The Pope
claimed to be the supreme judge
among kings, not by consent, but as of
right. These claims play a great part
in the history of the Middle Ages.
They were sometimes acquiesced in,
sometimes resisted. They were never
resisted with more spirit than by the
ParUament of Scotland, held at Aber-
brothock in the year 1320, after the
Pope had issued a Bull in support of
the pretensions of Edward H. to the
sovereignty of Scotland. The reply of
the Scottish Parliament was couched
in a strain of unusual vigour. They
informed the Pope that if he encouraged
the English in their aggression he would
be held responsible to God for the loss
of life which would ensue, for, said
this memorable document, " as long as
a hundred Scotsmen are left ahve, we
18



will never be subject to the dominioQ
of England."

Instances are not wanting in which
the Pope was, by consent of the parties,
selected as arbitrator to decide inter-
national disputes, but he assumed a
jurisdiction far transcending that of a
mere arbitrator. The most celebrated
instance of tliis is to be found in the
Bull by which Alexander VI. in 1493
drew an imaginary line from one pole
to the other, and by it divided between
Spain and Portugal the territory dis-
covered in the New World. Towards
the close of the eighteenth century, this
Bull was urged by Spain, in support of
her pretensions to the north-west coast
of America, including the territory which
formed the other day the subject of the
Alaska Arbitration — pretensions which
cuhninated in the seizure in 1789 of
British vessels at Nootka Sound, and
brought the two countries to the verge
of war. At the end of the nineteenth
century, in the Arbitration as to the
frontiers of Venezuela and British
Guiana, one of the arguments in favour
of Venezuela was based on this Bull, as
a judicial decision by the supreme Judge
of Christendom. " During the Middle
Ages," it was said in the Venezuelan
Counter case, *' and until after the dis-
covery of America, the Pope was tlie
recognised arbiter of the civilised world.
His word was in those days supreme."
But, on the other hand, only thirty
years after it was issued this Bull was
19



treated with scant respect by the King
of France, Francis I. "Wliat!" he
said, "the King of Spain and the King
of Portugal quietly divide between
them all America, without allowing
me as their brother to take a share. I
should much like to see the article in
Adam's will which gives them this
vast inheritance."

By the beginning of the seventeenth
century the influence of the Papacy as