Mr. Gallatin, in a despatch to his government, April 18, 1827, wrote: "An umpire, whether a king or a farmer, rarely decides on strict principles of law: he has always a bias to try, if possible, to split the difference." Granting that such a bias does exist, and that the award is often what the arbitrator thinks to be a fair compromise; still this compromise is more like justice than that compromise called a treaty which comes after war. If the strength of the parties is equal, and they cease from war because they are each convinced of the other's power, no treaty can be ratified by the two nations, unless it splits the difference. But nations are not often equally matched, and the treaty - the award of the arbiter, war— - decides whose military power is greater, but not whose claim is more just. The weaker nation feels its weakness in arms, but trusts to the justice of its cause; yet history is full of the defeats of justice on the battle-field. In the theory of international law, all nations are equal. How inconsistent is it then that war, which can only decide which is stronger, should be expected to decide what is the law! But an award is not as often as it seems to be a compromise. Prejudice, selfishness, and national pride are but glasses which color or distort the object. An award of an impartial person, which to the parties seems a compromise, is often strict justice, and shows that each was right and each was wrong. Nations sometimes refuse to negotiate, but are willing to abide by the decision of a third party. Before the third party has been able to give his opinion, they choose to agree in a settlement. Now, if we credit war with all the advantages which come from the treaty negotiated after the war, we ought certainly to give credit to peaceful arbitration for the settlement of all the differences which, after submission to an arbiter, are composed between nations for themselves. If this credit is given, we shall then find that arbitration has rarely failed to accomplish the desired object. The treaty of submission should express exactly what the parties intend to submit, how far the award may go, and to what extent it will be binding. A commission with an equal number of members selected by each party, and an umpire appointed by some friendly sovereign, is perhaps the best court to which nations can submit all questions as to the amount of compensation, and many minor questions of international law. It has been the custom to refer to some friendly sovereign all matters of boundary, all interpretations of treaties, and all important questions in the law of nations. But though this has been the practice, experience has shown that a commission composed of private individuals, adapted by education and life to the settlement of such questions, would be more likely to give a just and satisfactory award. This is the case, not because kings and emperors are unjust or ignorant, but because it is very difficult, among the comparatively small number of independent sovereigns, to find one who is not in a position to feel the consequences of his award. The fact that a king, deciding a principle of international law, must in the future himself be bound by his own decision, is, however, a very strong reason for selecting a king as sole arbiter. Though he may employ others to assist him in ascertaining the law, yet the opinion will finally come as his own. No better model of submission can be found, than a treaty made by France and England to provide for the settlement of the Portendic claims. The French government, in 1834 and 1835,* carried on war with the Trasa Moors on the coast of Portendic, where British merchants were engaged extensively in the gum trade. British vessels were seized while approaching this coast, when no blockade had been notified, and even after the French government had declared that no blockade was intended. As soon as the war was ended, the British government presented the claims of her aggrieved and plundered merchants. The whole question was finally submitted to the arbitration of the King of Prussia, who was asked to decide whether any real injury was unduly inflicted on British subjects, while they were pursuing on the coast of Portendic a regular and lawful trade; and also whether France was equitably bound to pay to such or such class of the said claimants any compensation by reason of such injury. It was agreed, in the submission, that, whatever should be the decision of the arbiter, it should * British and Foreign State Papers, Vol. XXXIV. p. 1036. not be regarded as in any way affecting any of the rights which had been maintained, or any of the principles which had been asserted, by either government, during the course of their discussion. The award decided that the blockade was justifiable, but that all claims which rested on the want of notice of the blockade were valid. In accordance with the treaty, commissioners of liquidation were at once appointed, to whom was added an umpire, a Prussian, Baron Roenne, the same who had acted with the commissions of the United States and Mexico. Under this commission the whole matter was settled. Now we do not mean to claim that arbitration can remove, or even be used to remove, all the causes of war. Public opinion and the law justify a blow given in self-defence; but the danger must not be passed, but must be imminent and present, threatening injury to one's person or property. So a nation must sometimes engage in war to protect itself from some attack threatened or already begun. No government would ask an arbiter to decide whether or not it had a right to drive away an invading army. Such questions need immediate action, and force must be repelled by force. Civil wars cannot be prevented by arbitration, for neither party considers the other as an independent nation. The United States could not have referred to the decision of an arbiter the question of the right of secession. That question was a domestic one, and did not concern other nations; it was also a question involving our very life, and the question of right must be answered by showing that the fact was impossible. The States in rebellion had already refused to be bound by the award of Congress, to whom they had agreed to submit all differences; and the army of the Union only fought to execute the award. The United States could not consent that the King of the Netherlands should decide whether or no the Emperor of France has a right to establish Maximilian in Mexico, because our government have believed, and still believe, that its safety depends on the enforcement of the so-called Monroe doctrine. This doctrine expresses, not what the rest of the world may think in accordance with the principles of international law, but what the United States considers to be necessary to its security and prosperity. What threatens Mexico threatens our own government; and so war, if it comes, must come in selfdefence. In all these cases self-defence is the only justification for war; and the parties to a war that is begun before an attempt has been made to settle the affair by arbitration should show why such a course was necessary. There are but few questions which arise between nations which cannot be settled by some form of arbitration. In feudal times many questions which are now settled before the courts were settled by personal conflicts. Duelling is not now recognized even as an honorable method of settling disputes between individuals, but nations still cling to the feudal idea, and must fight for their honor. We long ago said: "Discords among nations have their origin in two sources, opposite interests and contested rights. The first may be reconciled by the common principles of justice and mutual advantage; but where a right or a supposed right is involved in the dispute, it is then encumbered with new difficulties, because it touches the spring of national honor." *# This very sensitiveness in regard to national honor, which we wrote of in 1843, has in two instances since then prevented nations from settling differences by arbitration. In 1857 a French vessel, the Charles and George, having a representative of the French government on board, sailed from France for the purpose of hiring free negroes on the coast of Africa to go and labor in provinces of France. Having obtained one hundred and ten negroes "plus ou moins librement engagés," she went into a Portuguese port, where she was seized and condemned as good prize; and though the agent of the French government was released, the captain of the ship was sentenced to labor in the public works, because the immigration in which the vessel was engaged was considered by the authorities of Mozambique to be really a trade in slaves. The French captain appealed to the court at Lisbon, where he was carried with the prize. A demand was * North American Review, Vol. LVI. p. 452. made at once by the French government on the government of Portugal, that the vessel and captain be given up, and indemnity be paid for the detention. Portugal tried to resist, and, invoking the article, already cited, adoped at the Congress of Paris, desired that the difficulty be submitted to the arbitration of a friendly power. France refused, and Count Walewski said that the mediation proposed was inadmissible, in a question where a point of national honor was involved; and that the French government would never consent to submit to any power whatever the question of its practising, or even tolerating, the traffic in slaves, for the presence of an agent of the French government removed all suspicions of such crimes. Portugal was obliged to yield. After the captain and vessel were given up, France offered to submit the question of damages to arbitration; but Portugal replied, that if the question of right, which was the only one which concerned Portugal's honor and dignity, could not be referred to an arbiter, she would not accept an award upon a mere pecuniary question. Thus Portugal, not because she felt she was wrong, but. because she knew she was weak, yielded to the demands of France, as to any other exigency. France tried to save her honor, and lost it; for she showed the spirit of a bully, and forgot that Portugal's honor was also concerned. Portugal paid the claims, but in such a way that, even if her officers were wrong in the seizure and condemnation, the very yielding as she did to necessity did her honor. Our existing claims on England are too well known to need any explanation. Mr. Adams, in 1863, proposed to refer them to arbitration. Earl Russell wrote to Mr. Adams, August 30, 1865: "In your letter of October 23, 1863, you were pleased to say that the government of the United States is ready to agree to any form of arbitration. Her Majesty's government have thus been led to consider what question could be put to any sovereign or state to whom this very great power should be assigned. It appears to her Majesty's government that there are but two questions by which the claim of compensation could be tested. The one is, Have the British government acted with due diligence, or, in other words, with good faith and honesty, in the maintenance of the neutrality they proclaimed? |
