There are two objections which may be urged against
the idea that the proper immediate objective of the
peace advocate ought to be the firm substitution of
arbitration in the place of war, without defining its
precise modes. The first objection is that if the mode
of arbitration is undefined, the original quarrel will
merely be complicated with a second quarrel as to the
manner in which it ought to be settled. The second
is that a nation desirous of refusing justice, or of deciding
the event by war, might decline all reasonable proposals
for choosing arbitrators. These are real difficulties :
and perhaps the best answer to them is that they are
inevitable in the nature of the case. If the nations are
still so prone to war that they will look without dis-
approval on one of their number making a peaceful
settlement of a given dispute impossible, in defiance
of her solemn engagement, it is evident that no scheme
of obligatory arbitration, however detailed, is likely
to succeed. After all, the force of all such conventions
lies in the sentiment of the world. The world is not
so easily taken in. At any rate, the diplomatic world is
not. And if a country which has agreed in general terms
to arbitrate, cannot find a suitable set of arbitrators
anywhere on earth which would be fair to herself and
to her opponent, the public will not be long in directing
upon her exactly the same force of irresistible disapproval
1 Sec Evans-Darby, International Tribunals, 98,



12 ARBITRATION [chap, i

as if she had refused to carry out an award, or had de-
clined to carry out the terms of a detailed engagement
regulating the arbitral procedure and the composition
of the tribunal. All that can be said is that the absence
of any cut-and-dried scheme makes procrastination a
little easier ; makes duplicity a little safer ; makes
hectoring a little likelier. It is true, and it may be
admitted, that if all that is agreed upon is the principle
of obligatory arbitration, the weak and dishonest can,
to a certain small extent, haggle and temporize ; that
the frank repudiators of their obligations can, for a certain
limited time, postpone liquidation ; that the arrogant
and strong may be able, with a certain faint show of
justice, to put forward mediocre and unacceptable
arbitrators, and, refusing to be content with anybody
else, cut short arbitration with the sword. The sole
and sufficient answer to all these considerations is that
no other sort of compulsory arbitration has a chance
of general, not to speak of universal acceptance.

It is better that we should have obligatory arbitration
in a form which is capable of a little abuse, but which
would practically remove to an indefinite distance the
risk of war, than that we should do without it from
year to year, in the hope of some day securing the recog-
nition of a formal and permanent court, to which nations
would agree to submit. There is, besides the immense
practical difficulties in the way of the establishment of
such a court, a difficulty of theory which expresses a
real truth. Municipal courts are composed of indi-
viduals dealing normally with the differences of indivi-
duals. An international court, to correspond with
them, ought, since it deals with the affairs of states, to
be composed of states. It is not enough that it should
be composed of their representatives. Such are only
representatives in a far-fetched and uncertain sense.
The government of a nation is its only representative
for international purposes. It may delegate a limited



chap, i] FALSE ANALOGIES 13

authority to an ambassador. But an ambassador does
not embody the majesty of a state, though he may
shine with its reflected glory. He is not an agent, but
a nuntius. His acts always require ratification. So
that, even if the members of a tribunal have an ambas-
sadorial character, that is not sufficient to make the
court truly a court of states, or of anything but the
nominees of states. This does not deprive it of a certain
usefulness. But it makes it impossible to regard it as
analogous to an ordinary court of justice. There is
nothing to decide whether the judges are to be the ex-
ponents of their own ideas of law, or of those of their
nation. In the early days of International Arbitration,
when disputes were referred to sovereigns, the distinc-
tion hardly existed. The royal personage to whom
the matter was referred, clearly decided it as the repre-
sentative of his state. Even if, for obvious reasons,
he consulted, and adopted the opinion of, a jurist
whose eminence commanded respect, it was quite plain
that the decision remained his own, and his own as
representing his country. Such were the arbitral de-
cisions of Napoleon III. in the Fayal case (1852) : of
Marshal McMahon in the Delagoa Bay cases (1872) : of
the King of Prussia in the Portendic case (1843). So,
in 1814 the Russian Czar arbitrated between Britain
and the States ; the King of Holland in 1831 between
the same powers ; the Queen of Britain between France
and Mexico in 1844 ; the President of Chili between
Argentina and Britain in 1845 ; the King of Holland
between France and Spain in 1852. The Belgian King
similarly arbitrated in 1863 between Chili and the States,
and also between Britain and Brazil ; the Queen of Spain
arbitrated in 1891 between Colombia and Venezuela ;
and the Czar in 1891 between France and Holland and
in 1875 between Japan and Peru. 1
However, the fashion grew of referring disputes to
1 Phillipson, Studies in International Law, ch. iii.



14 ARBITRATION [chap, i

jurists rather than to states in the persons of monarchs.
The parties did not nominate them themselves, but left
it to friendly states to nominate all or some of them.
The adoption of this method in the Geneva Arbitration
(while it did not contribute to the success of that
tribunal) led to its being regarded as the standard method
of reference.

Mixed commissions for the assessment of monetary
claims had always been more or less employed, and
we find them as early as 1654, when a Netherlands-
British commission was appointed to assess war-claims. 1
There seems no foundation for the suggestion that such
commissions are not arbitrators. It is said that they
have a diplomatic rather than a judicial character : but
that is the characteristic of all international arbitrations.*
The great difficulty attending their use was that such
commissioners, like arbitrators in compensation cases,
are apt to take the role of advocates, and to produce a
deadlock. The appointment of a fifth private person
as umpire became common ; and this led gradually to
the system, now frequent, of employing private persons
as sole arbitrators. Private arbitrators were not, of
course, unknown before : Merignhac instances Alciat, 1
as arbitrating on the status of the Italian and German
principalities.

A very early but quite unique reference of all disputes
whatever between French subjects and Swiss to a mixed
commission occurs in 1516 in the treaty between France
and the Swiss Confederation. It provided for the choice
of a private umpire, nominated by the demandant.*

The Parliament of Paris used in mediaeval times to
be applied to for decisions, and a striking case occurred
in 1879, when a dispute between France and Nicaragua

1 Phillipson, Studies in International Law, iii. 19.

2 Pradiei'-Fod6r6, Conrs de Droit diplomatique, ii. 573.

3 L' Arbitrage international, § 39.

4 lb. § 42.



chap, i] PRIVATE ARBITRATORS 15

was referred to the French Cour de Cassation, which
directed Nicaragua to pay 40,320 frs., interest at 12 per
cent, and costs: not an encouraging precedent. 1

But the historic case of reference to private persons
(designated, no doubt, by sovereigns) is the Geneva case
of 1872. Others followed rapidly. A difficulty between
Denmark and the U.S.A. was referred in 1888 to the
British Minister at Athens (Monson) : and a friendly
difficulty between Britain and Germany was referred in
1889 to Baron de Lambermont. 1 The Behring Sea
and the North Sea Trawlers cases are as well known as
the Geneva one.

A reference conducted in such a way as were the
Geneva and similar cases, is not typical Arbitration.
For the disputants have their difference decided, not
by the persons whom they choose, but by the persons
whom their nominees choose, unless, as is now increasingly
the case, they refer their dispute to a named jurist. And
the anomaly reaches further. For, when they purport
to refer the matter to the decision of a person to be ap-
pointed by a particular Power, the question at once
arises, Is the person appointed in such a way to act as
the mouthpiece of the particular Power, or on his own
authority and responsibility ? Is he to take instructions
from it, as the real Arbitrator, or is he to resent them
as interferences with his arbitral commission ? It is a
technical and jejune answer to say that, if he is a subject
of that Power, he must accept the instructions of its
government. It may not be true, constitutionally
speaking. Were it true, it does not affect third parties.
They have agreed to accept the decision of a person, not
that of his government.

But the full bearing of this consideration is seen when

we remember that it is precisely such an anomalous

tribunal as this which the advocates of a Supra-National

Court would set up. 1 1 would fail to resemble a municipal

1 Merignhac, L' Arbitrage international, § no.



l6 ARBITRATION [chap, i

court at all ; because its judges would not be certain
to express their own personal conviction as to the points
in dispute. They might do so : they might express their
official national view : they might express a compromise
view. But no one could tell which.

Can we expect states to agree to such a system ? A
haphazard arrangement, under which they may expect
to get the decision of a competent jurist, and are favoured
with that of a party politician, — under which, conversely,
states may expect to receive the deliberate opinion ot
an important government, and actually get that of a
doctrinaire professor — is very far from likely to prove a
workable machine.

Mr. A. Merignhac, 1 approving the views in this regard
of Fiore and D. D. Field, says that—" il faut preferer des
juges nomines pour chaque affaire, des juris en un mot."
Let us pause to take account of the facts apparent.
The more ardently one advocates and desires peace, the
more careful one is impelled to be, that it shall not be
imperilled by the instalment of a flimsy and evanescent
substitute for war. It has been shown that what is
usually termed Arbitration as a means of settling the
disputes of nations is not true, spontaneous Arbitration,
and is not invested with its merits. It resembles rather
the action of an irresponsible court which self-respecting
nations are not likely to accept, and whose judges are
ambiguous personages, with one eye on the law and
another on their governments.

And a far greater hope of lasting success in promoting
the triumph of peace lies in the gradual formation of a
public conscience trained to consider war a crime and
arbitration a necessity. The acceptance of the abstract
idea of arbitration— not as a pious opinion, but as a
vital necessity which it is for each nation concerned to
translate into practical action— is the one thing needful.
It is useless, because it is manifestly absurd, to expect
1 L' Arbitrage international, § 461.



chap, i] EQUALITY OF STATES I7

every one to accept any set of publicists whatever as
necessarily qualified to pronounce on all affairs.

Such voluntary arbitration is plainly free from all the
objections which have been forcibly urged to the plans
of permanent " arbitration ' boards which are here
deprecated. Nations have said, and rightly said, that
the answer to questions affecting their honour, indepen-
dence and vital interests cannot be made dependent on
the decision of such bodies. There is manifest danger,
and some loss of consideration, involved in undertaking
for all time to accept the decision on these matters of a
court the composition of which is beyond one's power to
alter. But to refer such delicate affairs to the resolution
of a mutual friend, in whom both parties can confide, is
precisely the right and sensible way of dealing with them.
When two individuals are at issue on a point of honour,
what more natural and appropriate way out of the
difficulty is to be found than a reference to a sagacious
and experienced friend of both parties ? Genuine arbi-
tration is a serious rival to war. Supra-national courts
only excite apprehension.

In the Naval Annual for 1908, Sir Frcdk. Pollock makes
a somewhat disturbing comment on the Equality of
States. He is, like many other observers, struck by the
fact that the smallest atomic state formed, at the recent
Hague Conference, an absolute obstacle to the adoption
of any new rule of law by the assembled body. That,
though a striking demonstration enough, is merely a
consequence of national independence. No state, or
body of states, can impose its will on another. A wine-
glass is as truly full as a fountain is full. To change the
law, there must be a consensus of general civilized opinion
— it is not enough to show a consensus of cabinets. All
that cabinets can do is to make a treaty, and if it is to
include them all, it is not surprising that they must be
unanimous about it.

National equality means equality of sovereignty, not

2



l8 ARBITRATION [chap, i

equality of resources, power or dignity. That is a com-
monplace. A wineglass is as full as a fountain, but it
is not as capacious. But Sir F. Pollock goes further.
He denies to minor states " political " equality, while
conceding to them " jural " equality. This amounts to
giving them rights which they have no power to preserve.
It is the same argument as that which concedes to women
"legal" while denying them "political" rights. The
very use of political rights is to modify or take away
legal rights. Legal rights are insecure and worthless if
others alone possess political rights.

Consequently, to restrict the equality of states to such
" legal " rights as the major states in the exercise of their
supposed " political " rights may think fit to concede,
is to abolish the equality of sovereignty which at present
subsists, and virtually to abolish the sovereignty of small
states altogether. If the majority in number and value
of states is to be permitted to enact a general law abolish-
ing (say) fetishism, without regard to the dissent of
San Domingo, it is not difficult to see that the indepen-
dence of San Domingo is gone. It never was so great as
the independence of France or Italy, because it affected
a lesser area. Within that area its pressure to the square
inch of territory was precisely the same. The indepen-
dence of San Domingo, as of France, was limited by general
skilled opinion and tradition. But if France and Italy
are to be invested with " political " rights a hundred
times stronger than the shreds conceded to San Domingo,
national independence and equality become a figment.
There is no such accepted theory as that nations are
invested with some undefined political rights varying
with their size and importance, in virtue of which they
can unite to change the known doctrines of international
law, or to impose their benevolent will upon others.
We do not affect to regret that this should be so. In-
ternational law will best develop by scientific discussion.
It is not a thing to be settled by the debates and divisions



chap, i] ELASTICITY OF TRUE ARBITRATION 10,

of a mob of diplomats. Sir F. Pollock takes away
from states their well-established sovereign equality, and
presents them in return with a " jural " equality which
is a gift only fit to be rejected with contempt.

An international legislature in which a minor state
would have nothing but an ineffectual minority vote, is
unthinkable. An international tribunal of a permanent
kind would be in effect a legislative body, and would
present the same dangers.

Arbitration, moreover, which is obligatory in principle
and voluntary in detail has the advantage of being
capable of elastic adjustment to meet particular cases. If
nations are at issue about a matter of some few hundreds
of pounds, they do not want to convoke the leading
jurists of the world at an expense of thousands. A
reference to one capable independent person is all that
is wanted. If they are at issue on a question of law,
they do not want the decision of persons inspired by
political motives. If their dispute is as to the right
and honourable way in which either of them should
behave, irrespective of their strict legal rights, then
they do not want the decision of dry legal theorists.
If their difference is merely about a matter of fact —
whether such and such physical occurrences did or
did not take place, then they do not want the decision
of politicians or lawyers. They want detectives.

There are thus at least three kinds of dispute. They
have never been regularly separated, in theory or in
practice ; and nations have been in the habit of flinging
a complicated case into the arms of some jurist or another,
to give a general decision on the law, facts and morals
of it. And many excellent people are endeavouring to
establish courts in which the same short-sighted pro-
cedure would be carried on. It would be necessary
to refer to these tribunals, indiscriminately, cases which
really raise questions of morals and of fact as well as,
or instead of, questions of law. They would deal with



20 ARBITRATION [chap, t

them all in a spirit of stiff legalism, unless they entered
upon a work for which they are profoundly unfitted, and
dictated a fluctuating code of honour to the nations.

But true Arbitration lends itself with perfect elasticity
to a more sensible plan. If the disputants are not
committed beforehand to any fixed judges, there is no
obstacle in the way of their referring it to jurists and
skilled examiners to find out separately the law and
the facts ; and then, if they desire, or find it essential,
to refer the whole matter to persona grata, to pronounce
what, given the law and the facts, should in fairness
be required by the one party of the other, they have a
perfectly clear field for doing so. A normal arbitration
between nations would then have three well-marked
stages. A simple commission d'enquetc would first
establish the facts. A committee of international jurists
(it might be one or it might be twenty in number,
according to the importance and difficulty of the subject)
would declare the strict law. And a friendly council of
rulers or statesmen would recommend the proper thing
to be done.

Here it may be well to insert a caution against what
is a very real and growing danger to arbitration. That
is the importation into the decision of national disputes
of the methods of the commonplace advocate. The
writer would be the last to deprecate the great profession
of the law. But the arts of the advocate are not
admirable. The atmosphere of the law-court — of that
scramble for verdicts which has so unfavourably impressed
the popular imagination — ought sedulously to be elimi-
nated from the solution of international controversies.
Something, but not much, will have been gained when
we give victory to the hired brains of the advocate
instead of to the hired muscles of the soldier. The sub-
stitution of a struggle of wits for a struggle of strength
i-, ,ill thai will In' effected, if we are not very careful
indeed, by tin- triumph of Arbitration.



chap, i] LEGALISM 21

Let any one who doubts the magnitude of the danger
read the full reports of the arbitration on Religious
Foundations between the United States of North America
and the United States of Mexico. On the one side were
astute advocates versed in every turn of the game and
every move on the board : on the other, plain, simple
men who imagined that it was sufficient to present
their case, and not to display their skill in advocating
it. All the dexterity and finesse of an accomplished
pleader was displayed on the one side : the straight-
forward simplicity of the other was completely outflanked.
Take a very much better-known instance — the Alabama
arbitration. It was remarked on that occasion that
the British representatives showed themselves anxious
to establish logical conclusions, whilst those of the
United States were above all desirous of capturing
the minds of the independent arbitrators. There we
have the essential mark of the advocate. His mind
is fixed upon case-winning, and he is not careful how
the result is accomplished. Chivalry is not always the
predominant virtue in a law-court. It ought to be pre-
dominant in an International contest. A third example
shall be given : it is a tribute to the American genius
for law, that it is again concerned with the United
States. At the Alaska Boundary arbitration the case
of Canada might well have been prejudiced by the
aroma of commonplace litigation which was thrown
over the proceedings. Not that the Canadian counsel
were less able than those of the United States. But in
accordance with forensic habits, they were definitely
subordinated.

The excessive legalism which drags great international
controversies into the sordid and suspicious atmosphere
of the law-court, is calculated to do unqualified harm to
the cause of Arbitration, and to bring it into dislike and
contempt. We are told that just as the armed retainer
has been superseded by the policeman, so the soldier is



22 ARBITRATION [chap, i

to be replaced by the international policeman, and we are
bidden to regard the prospect with joy. Is it certain
that the general admiration for the policeman so ex-
ceedingly transcends that accorded to the soldier ? So
far as our observation goes, the facts are precisely the
reverse. Where a mob stones the police, it will cheer
the soldiers. For excellent reasons. The policeman, on
the whole, does not give his opponent a chance. The
soldier, on the whole, does. The policeman is seen
in the light of the sacrosanct and irresistible agent of
the dead machine of government. The soldier appears
as the exponent of the spirit of the country, free among
its equal peers. An exponent on the rough physical
plane, he may be, and we do not affect to regret his
disappearance. Perhaps he may be replaced by volun-
tary devotees who will resent injuries by declining life
on dishonourable terms. But it is a false step to talk
of replacing him by the policeman.

People are very much inclined, nowadays, as Mr.
G. K. Chesterton has explained at some length, to ride
analogies to death. Because Wagner is more complex than
Beethoven, and Beethoven than Mozart, we reach the
easy conclusion that music must keep getting indefinitely
more and more complex, and that superior complexity
is the sign of a superior artist. Because political de-
velopment has in the vast arena of the nation substituted
arbitrary bureaucracy for private war, we find the
inference ready made, that if the thirty or forty states
which we know of give up war, they must necessarily
accept a regime of police. But, as the late Lord Esher
remarked — " If a man talks nonsense once, is he bound
to go on talking it all his life ? " Nature is not bound
to repeat her mistakes. Even if the analogy were
complete, this would still be true.

The truth is, we have no analogy to go by. We have
no experience of a small number of independent organisms
forming a mutual organization for the abolition of strife ;



chap, i] ARBITRATION V. LITIGATION 23

and we do not know in the least on what lines of crystal-
lization such an organization would proceed. Certainly
there is no presumption that it must be on lines at all
like those which have produced our modern govern-
ments — and anarchists.

Elastic arbitration at least relieves the nations from
the prospect of being lawyer-ridden.

As for war, it will never be abolished until the senti-
ment of the world regards even a just war with abhorrence.
No one would be prepared to succeed in a fight by the
use of an unfair blow. It is recognized that it is better,
to permit wrong to be done : to sustain any insult :
to witness any crime. When nations have so far be-
come civilized that people will meet armed force with
the proud calm of the old Roman who disdained to
struggle with the barbarian, then war will have become
impossible. Meanwhile, the unregenerate nations that
are not as yet averse from the thought of defending