usage and judicial precedent amended and amplified by positive statute.

In the system of International Law, this Civil Right of Action becomes of necessity an appeal to arms (b), for war is the terrible litigation of States.

By what rules this International Right of Action (c) is governed, both with respect to the principals and to the bystanders, we shall presently consider at length.

II. But as we approach these awful confines, we must remember that it is the bounden and most sacred duty of every State, to exhaust every legal means of redress (d), before it has recourse to the dreadful necessity of war. These means are, as we have already seen (e), classed under two heads, viz.:

:

1. Measures taken viâ amicabili.

2. Measures taken viâ facti, which nevertheless fall short

of war.

III. Measures taken via amicabili, are, 1. Negotiation; 2. Arbitration (Arbitrage).

With respect to Negotiation-it is, of course, the principal object of Embassies (ƒ), the nature and privileges of which have been so fully discussed, to adjust international differences before they ripen into war.

With respect to Arbitration (g), this mode of adjustment must be considered both with reference to the Parties and

(b) Vide ante, vol. i. p. 11.

(c) Heffters most correctly entitles the second book of his clever work "Das Volkerrecht im Zustande des Unfriedens, oder, die Actionenrechte der Staaten."

(d) Wolff, Jus Gentium, c. v., De Modo componendi Controversias Gentium.

Zouch, Pars ii. l. i. s. 3. p. 54.

(e) Vide ante, vol. i. p. 11.

(f) Vol. ii. pp. 134-234.

(g) See an excellent chapter upon the subject, considered as a question of general jurisprudence, in Voet, Ad Pandect. 1. iv. t. viii., De Receptis qui Arbitrium receperunt, ut Sententiam dicant, and the recent work of Calvo, I. 790-7; II. 368-371. Bluntschli, 488-498.

to the Arbitrator; as much with reference to the latter as to the former.

First, as to the Parties. It cannot be laid down as a general and unqualified proposition that it is the duty of States to adopt this mode of trial. There may, in the circumstances, be no third State willing, or qualified in all respects, for so arduous and invidious a task. Moreover, a State may feel that the contested Right is one of vital importance, and one which she is not justified in submitting to the decision of any Arbitrator or Arbitrators.

We know from history that Congresses of crowned heads have not always proved themselves to be impartial or competent tribunals of International Law, and the circumstances which justify the Intervention of Foreign States, both when invited and when uninvited by the contending parties, have been already under our consideration (h).

Secondly, with respect to the Arbitrator. It should be observed that if any arbitrator be appointed, the terms of the appointment will of course limit his authority, and if his award exceed or be inconsistent with those limits it will be altogether null (i).

Otherwise, the Jus inter gentes is well expressed in the opinion of Ulpian, as it stands incorporated in the Roman

(h) Vol. i. pt. iv. c. i., on Intervention.

(i) "Uti ex adverso cavendum quoque arbitro est, ne compromissi fines egrediatur, ac alia dirimat, quàm quæ ipsius arbitrio commissa sunt, aut alio modo quàm quo compromissum est. Generaliter enim sciendum, omnem de officio arbitri ac potestate tractatum ex ipso compromisso sumendum esse; nec aliud ei' licere, quàm quod ibi, ut efficere possit, cautum est. Non ergo quodlibet statuere poterit, nec in re quâlibet, sed de quâ re compromissum, et quatenus compromissum est, et, compromisso generaliter concepto, de his solis judicare rebus et rationibus et controversiis, quæ ab initio fuerunt inter eos, qui compromiserunt, non quæ postea supervenerunt."-Voet, ib. 1. iii. t. viii. For the powers and duties of the Recuperatores under the early Roman Law, see vol. i. Append. p. 542.

For the power of the Pope as International Arbitrator, see vol. i. Preface, p. xlvii. p. 82.; vol. ii. pp. 367-8.

As to the authority of General Councils in this matter, see vol. ii. p. 354. Of Universities, ib. p. 358.

Law:-" Si se subjiciant alicui jurisdictioni, et consentiant, "inter consentientes cujusvis judicis, qui tribunali præest, "vel aliam jurisdictionem habet, est jurisdictio" (k). The Arbitrator cannot be compelled, unless, indeed, a clause to this effect has been inserted in the International Covenant, to continue the exercise of his functions (). Nor can he alter his decision when it has once been formally delivered (m); for, when this has been done, he is functus officio. If there be an uneven number of Arbitrators, the opinion of the majority (n) would, according to the Reason of the Thing, and the Jus commune of Nations, be conclusive. If one of the Arbitrators were maliciously to absent himself, it might be competent for the others to proceed; but if one were dead, the Arbitration would be dissolved, unless provision had been made for the contingency in the original covenant (o). Nor, if there be two Arbitrators, and they differ in opinion, can they call in, without the consent of both parties, a third person as umpire (superarbitrum) (p).

(k) Dig. v. t. i. 1.

(1) "Prætereà cogendus non fuit arbiter, si pœna compromisso non fuisset inserta."-Voet, ib. 1. iv. t. viii.

(m) "Sententiæ secundùm requisita superiùs commemorata latæ effectus est, quod nec ab arbitris mutari possit, etsi errorem allegantibus; quippe quorum officium absolutione vel condemnatione finitum est."-Ibid.

(n) “Quod si plures arbitri electi dissentiant in ferendâ sententiâ, id quod majori parti placuerit, ratum erit."-Ibid.

"Quod major pars Curiæ effecit, id pro eo habetur ac si omnes egerint."-Dig. L. t. i. § 19.

(o) "Quia tamen illa absoluta arbitrorum omnium præsentiæ necessitas non raro malitiis atque calumniis posset ansam præbere, dùm aliquando unus aut gratiâ aut odio aut sordibus corruptus sui copiam non faceret; atque ità quæstiones malitiosâ absentiâ diutiùs protelarentur ac manerent indecisæ; commodè cautum fuit jure Canonico, ut, si legitimè omnes citati fuerint, nec justum allegaverint impedimentum quo minùs adessent, liceat duobus præsentibus, absente tertio, perindè ad negotii commissi examen accedere, illudque suâ dirimere sententiâ, ac si tertius legitimè vocatus ipsis præsens fuisset. Aliter quàm statuendum foret, si unus ex arbitris fato functus sit: morte enim tali compromissum dissolvi verius est; nisi superstitibus reliquis in casum mortalitatis tributum sit alterius in mortui locum cooptandi jus."-Voet, ib. 1. iv. t. viii.

(p) "Sed vix est, ut hæc aliter admiseris, quàm si compromittentes,

The sentence, once given, is binding upon the parties whose own act has created the jurisdiction over them. The extreme case may indeed be supposed, of a sentence bearing upon its face glaring partiality, and attended with circumstances of such evident injustice as to be null. "Nec tamen' (Voet observes) "executioni danda erit, si per sordes, aut "per manifestam gratiam vel inimicitiam probetur lata." But for such exceptions no rules can be safely laid down (q).

By the recent Treaty of Washington (r) England and the United States of North America agreed to refer two questions in dispute between them to Arbitration. The question relating to certain claims arising out of the acts of privateers or armed vessels which, during the North American civil war, had left the ports of this country, was by far the most important, and as it is discussed in a later chapter (s), in which the obligations of neutral States are considered, will not be treated of in this place. The other question, which related to "the San Juan Boundary," was submitted to the decision of the King of Prussia, the Emperor of Germany. By the Treaty of Washington, dated June 15, 1846, it was stipulated that from a certain point on the 49th parallel of north latitude" the line of boundary "between the territories of Her Britannic Majesty and those "of the United States shall be continued westward along the "said 49th parallel to the middle of the channel which separates "the continent from Vancouver's island, and thence southerly, through the middle of the said channel and of Fuca Straits, "to the Pacific Ocean." The question arose as to the con

66

non ignaros tertium assumi, patientiam præbuisse atque ità tacitè consensum accommodâsse constet: nam si ob dissensum arbitrorum malint à compromisso resilire, uti id leges ipsis permittunt, ideòque testationibus denunciaverint ambo, vel alteruter, ne tertius assumeretur, aut assumptus sententiam diceret, non animadverto, cur efficax foret quod ab eo, quem superarbitrum vulgò appellant, fuisset definitum, cùm nunquam in eum consensisse dici queant: nullus verò satis idoneus arbiter sine partium voluntate possit censeri."—Voet, ib.

(q) Ib. s. 24.

(r) See vol. ii. Pref. vi. ch. ix.

(3) Ch. ix.

struction of the words "middle of the channel."

It has been observed by competent (t) authority that "as regards the "island of San Juan, there is no doubt that the Treaty of 1846 "between the English and American Governments is unfor"tunately somewhat vague. Although it clearly sets forth "that the boundary line should be the 49th degree of north "latitude, to the centre of the Gulf of Georgia, thence "southward through the channel which separates the conti"nent of America from Vancouver Island, to the Strait of "Juan de Fuca, it unhappily overlooked the fact of there "being three separate channels existing between the islands. "and the main shore. The' channel would have been defi"nite enough were there but one. There being three, how"ever, has given rise to the contention as to the construction "of the Treaty in respect to them." The decision of the Imperial Arbitrator appears in the following correspondence.

6

(t) In the Times of October 30th, 1872, is the following extract from the Victoria (Vancouver's Island) British Colonist of the 20th of September :

"There is no longer room to doubt that the Emperor of Germany has given his decision in favour of the United States, thus making Haro Strait the water boundary between the two countries. The blunder committed by Great Britain does not consist in consenting to submit the point of dispute to the sole arbitrament of the German Emperor, for there was, perhaps, no man living to whom it were better to submit the question, if that mode of settlement were to be adopted. The blunder appears to have consisted rather in the manner of presenting the case to the Emperor. Had the distinguished referee been simply invited to decide where, under all the circumstances, and in view of all the consequences, the boundary should run, it can scarcely be doubted that the Middle Channel would have been named. By this the group of islands in dispute would have been about equally divided between the two nations; Saint Juan and its immediate neighbours, with Haro Channel, falling to the Empire of British North America, and Lopez, Orcas, and adjacent islands, with the Rosario Channel, falling to the United States. Thus would each nation have its channel of communication with the open sea, each channel being guarded by considerable islands. The chief objection to the United States possessing San Juan Island is, that it gives them possession of Rosario Channel and the Middle Channel, and also the means of controlling Haro Channel, thus leaving no channel of any importance free to the British. True, the British will have the right to use Haro