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death; or if any of them became incapable of acting by reason of infirmity or insanity; or if any of them were guilty of fraud; or if the award were not rendered within the time specified; or if their decision went outside of the points submitted to them, it might be rejected by either. An instance of the rejection of a sentence on the latter account is furnished by the procedure in regard to the Maine boundary, where the arbitrator, the King of the Netherlands, gave his award upon what was not submitted to him, by undertaking to fix upon a boundary which neither party claimed to be the right one. M. Calvo speaks of this as a case in which the arbiter left the question of right in suspense, and confined himself to the suggestion of a basis of arrangement, entirely new and hypothetical, such a solution not having entered into the forethought of the parties" (i,, 795).

Ancient history furnishes us with examples of disputes be ing referred to individuals supposed to be impartial. Thus, Periander reconciled Mitylene and Athens, and Themistocles settled a quarrel between Corinth and Corcyra. Or it might be that the dispute was committed to a state friendly to both parties.1

In modern times such compromissory arbitration has been not unfrequently resorted to, but most commonly in cases of small importance. Some nine cases occurring in Europe before the eighteenth century (during which they were less frequent), may be found mentioned in the article in the "International Review" for January, 1874, referred to above. M. Calvo speaks of nine other cases, in a majority of which an American state was a party (i., § 667). Other examples may be found in the work of Dr. Twiss on the rights of states in war (p. 7). A very singular use of this procedure may be found to be suggested in the final act of the Congress of Vienna (Art. 1xix.), where the question at issue was, Who was duke of that part of the Duchy of Bouillon, which was made to pertain to the Kingdom of the Netherlands.

The diplomatic history of the United States has furnished 1 Comp. Schoemann, Gr. Alterth., ii., 4.

instances, some sixteen or more in number, of disputes thus settled; most of which related to boundaries or pecuniary claims for injury to citizens. More important than any others, were the arbitrations and commissions provided for by the treaty of Washington in 1871. (See Appendix ii. under that year, end.)

In almost all cases of disputes as well with European powers as with the states on this continent, the United States, it is probable, will continue to have recourse to this method for the settlement of difficulties. For our difficulties with other powers will not generally be political, but will grow out of wrongs done to individuals, or other transient acts of injustice on our part or on theirs, which will admit of an exact estimate or be atoned for by apology.1

§ 228.

But what are the sanctions of international law to deter

tional law.

from wrong? They are, First, Within each separate Sanctions of state municipal laws confirming it, and making penal internaits violation. Such are the laws of the United States which protect the persons of ambassadors, or prohibit offenses against neutral rights, and the like. (Comp. §§ 29, 176.) Secondly, The moral sentiment of each and all the states which have consented to the existing law of nations. This is a considerable and an increasing force, one which comes into the recesses of palaces and cabinets; and which sometimes speaks in threatening tones against gross wrongs. Thirdly, War. Great as the evil of war is, it is not in the existing condition of mankind the greatest. It would have been a greater evil for the states of Europe to have surrendered their independence to Napoleon, than it was to recover it by the sacrifice of untold treasure and countless lives. Nations are reformed by the sobering influences of war. Nations are exalted by

1 For the subject of arbitration, besides the writers on international law in general, compare especially, Goldschmidt's excellent essay in German and French, presented to the Institut de Droit International, and published in the Revue de Droit Internationale, for 1874; Pierantoni, Arbitrati Internazionali, Naples, 1872, and Laveleye, Des Causes Actuelles de Guerre, etc., Brussels, 1873.

Let not this
War often

contending in war for something which is good. dread sanction, then, be thought to be of no use. cures the internal maladies which peace has fostered.

Actual progress of international law.

§ 229.

But war often for a time exhausts and demoralizes, it sometimes perpetuates injustice, it is occasionally undertaken against the clearest provisions of the law of nations. Has, then, this law of nations, amid the violations of its code, on the whole made progress? To this question a negative answer can be given only by those who plant their argument on gross offenses rising up here and there, as we look down history, but who do not enough take into account the general strain and spirit of the ages.1 When the question is made to embrace a large tract of time, and we search for progress between the eras while the codes of Greece and Rome were living ones, and the present day, no one can hesitate what answer to give to it. But has there been progress between the time of Grotius (1625), or the peace of Westphalia (1648), and the most modern times? An answer by a very competent authority,- Dr. Wheaton,

- at the close

of his history, sums up the principal heads of progress as fol

lows:

"That the pacific relations among nations have been maintained by the general establishment of permanent missions, and the general recognition of the immunities of public ministers.

66

Although the right of intervention to preserve the balance of power, or to prevent the dangers to which one country may be exposed by the domestic transactions of another, has been frequently assumed; yet no general rules have been discovered by which the occasions which may justify the exercise of this right, or the extent to which it may be carried, can be laid down; and that it remains, therefore, an undefined and undefinable exception to the mutual independence of nations.

"The exclusive dominion, claimed by certain powers over

particular

1 Comp. for a gloomy view of the progress of international law, the article, (referred to in § 3) in the Edinburgh Review, No. 156, for April, 1843.

seas has been abandoned, as an obsolete pretension of barbarous times; the general use of the high seas, without the limits of any particular state, for the purposes of navigation, commerce, and fishery, has been conceded; and the right of search on the ocean limited to the periods of war, except certain conventional arrangements applicable to the African slave-trade.

"The navigation of the River Scheldt, which was closed by the treaty of Westphalia, in favor of the commerce of Holland, has been reopened to all nations; and the general right to navigate the Rhine, the Elbe, the Danube, and other rivers which separate or pass through different states, has been recognized as a part of the public law of Europe.

"The colonial monopoly, that fruitful source of wars, has nearly ceased; and with it the question as to the right of neutrals to enjoy in war a commerce prohibited in time of peace.

"The African slave-trade has been condemned by the opinion of all Christian nations, and prohibited by their separate laws, or by mutual treaty stipulations between them.

"The practices of war between civilized nations have been sensibly mitigated, and a comparison of the present modes of warfare with the system of Grotius, will show the immense improvement which has taken place in the laws of war.

"Although there is still some uncertainty as to the rights of neutral navigation in time of war, a conventional law has been created by treaty, which shows a manifest advance towards securing the commerce of nations which remain at peace, from interruption by those which are engaged in war.

"The sphere, within which the European law of nations operates, has been widely extended by the unqualified accession of the new American states; by the tendency of the Mohammedan powers to adopt the public law of Christendom; and by the general feeling even among less civilized nations, that there are rights which they may exact from others, and consequently duties which they may be required to fulfill.

"The law of nations, as a science, has advanced with the improvements in the principles and language of philosophy; with our extended knowledge of the past and present condition of mankind, resulting from deeper researches into the obscurer periods of history, and the discovery of new regions of the globe; and with the greater variety

and importance of the questions to which the practical application of the system has given rise.

"And lastly, the law of nations, as a system of positive rules regulating the mutual intercourse of nations, has improved with the general improvement of civilization, of which it is one of the most valuable products."

To which we may add, that since Dr. Wheaton's history was written, in 1843,

Free navigation of nearly all the rivers of the world, under the jurisdiction of Christian states, has been conceded to those who dwell on their upper waters, if to no others;

That the Black Sea is open to all merchant vessels, and the navigation through the Danish Straits freed from onerous duties;

That most of the leading nations of the world have agreed, that as between them, free ships shall make free goods, and that privateering shall cease;

That European or Christian international law is spreading itself over the eastern world far beyond what Dr. Wheaton could have conceived to be probable when he wrote his history; and that the rules of war on land are becoming increasingly humane, and its interference with innocent trade in war is less of an evil.

Prospects of international law for

§ 230.

Is there reasonable expectation that this progress will continue in future times? This question resolves itself into the broader one, whether true civilization built the future. on sound morality and religion is destined to advance or to decline? If nations are to grow in moral enlightenment; if there is to be a faith that the great Ruler of nations has put them upon trial, as truly as individuals, so that no amount of power can save from punishment, or even from extinction, a nation, in which the feeling of justice is blunted by a long course of sinning; if opinion is destined to circulate so freely through the world that crimes committed against other and weaker states shall stamp disgrace on a nation through

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