Part 9

But while Lieber’s Manual was thus taken as the model by various nations, there were inevitably developed serious divergencies in the rules and details. Recognizing the desirability of a common code, which should be binding upon all nations, Alexander II of Russia attempted to secure the united action of the leading states, and, pursuant to his initiative, the Conference of Brussels was called in 1874. In the sessions of this conference the rules already developed were carefully examined, and ultimately a series of articles, well calculated to form the basis for an excellent international code, was adopted. As the delegates, however, had not been given plenary powers by their respective governments, their action was necessarily ineffective without subsequent ratification. Upon this rock the conference was wrecked, and the rules which it had formulated acquired no binding authority.

But indirectly they had a most happy effect, for they worked as a unifying influence in the preparation of subsequent manuals and the amendment of existing ones. The increasing interest in the subject thus stimulated led the Institute of International Law to give the matter still further thought, with the result that that eminent body of jurists in 1880 adopted a very full and excellent code, which gave evidence of much advance in the knowledge of the subject.

But neither the Brussels rules nor the code of the Institute of International Law possessed any binding authority, save in so far as they embodied generally accepted usage; their influence, however, increased the tendency in the direction of a common manual such as that which Alexander II had hoped to secure--a hope which has now been realized, and in a manner worthy of the subject. This logical step, too long delayed, is due to the Peace Conference. It devoted most careful consideration to the various codes, and has enriched, extended, and unified the rules and improved the whole by many valuable provisions suggested by the intervening experience. Altogether, the result is a splendid example of a natural evolution which, commencing with the distinction between “combatant” and “non-combatant” founded on the considerations of mercy and justice pleaded by Grotius, subsequently recognized in the Peace of Westphalia, increasingly practiced since then, and at the instance of Lincoln embodied in a manual, has now led to the adoption of a common international code for the conduct of future armies in the field--a result which marks the triumph in our day of the conception of civilized warfare tempered with mercy over the old idea of indiscriminate and inhuman slaughter.

THE SPHERE OF ARBITRATION.--A matter that has given rise to much speculation is the _jurisdiction_ of arbitral tribunals. It has come to be recognized that a distinction must be made between different classes of international disputes. What may be called “business disputes” between states, such as boundary lines, tariffs, damages, fishery claims, questions of citizenship, and various treaty arrangements--like the most-favored nation clause--are all fit subjects for arbitration.[J] But the graver questions involving the consideration of national policy and aspirations, vital interests and honor, race and religious prejudices and passions, and last of all self-preservation, are, at least for the present, far beyond the competence of an arbitration tribunal.[K]

[J] See Essai sur l’Organisation de l’Arbitrage International, by M. Descamps, p. 24.

[K] The Transvaal War pertinently illustrates the prevailing want of knowledge regarding the true sphere of arbitration. Ever since the outbreak of war the Continental press and some American papers have been asking why the provisions of the Peace Conference are not put in operation. Much of this is due to anglophobia; much to a genuine ignorance of the matter. The treatment of the subject usually takes the form of an antithesis in which Great Britain as a peace power at the conference is contrasted with Greater Britain making war on a little republic, and this is invariably followed with a statement or inference that the Peace Conference was a huge farce, and the Permanent Court a dire failure. It is now quite plain that the root of the difficulty between England and the Transvaal was not the franchise nor the dynamite monopoly, but English _versus_ Dutch predominancy in the whole of South Africa, and therefore a grave clash of two opposing policies, involving the deepest questions of interest and even self-preservation. Regarding these questions the conference was unanimous in the opinion that they are entirely outside the sphere of arbitrable question.

If the list of arbitral decisions hitherto given be examined it will show that questions of the first sort above are those which have thus far been submitted to judicial settlement.[L] It is therefore in harmony with past experience that the conference, in generally defining the scope of arbitration, declared it to be intended for the settlement of “questions of a juridical nature,” especially the interpretation and application of international agreements upon the basis of respect for law.[M] The frequency of these “business questions” is on the increase; they seriously embarrass diplomatic representatives, whose proper duty is the conduct of graver matters of policy, and there is a growing disposition to submit them to legal settlement. Under these circumstances, there is little doubt that the time has come when the system of special temporary courts of arbitration, splendid as their work has been, must give way to a more adequate system--they were indeed but stepping stones to a more permanent organization. Under the old system each power was likely to wait for the other to take the initiative; then came a squabble as to just how much and what part of the difficulty should be submitted to arbitration, then a squabble about judges, then a squabble about procedure, place of trial, and so on--all was unpreparedness, uncertainty, and meantime angry passions had full play.

[L] See especially the list given in the back of Darby’s International Tribunals, p. 286.

[M] See Article XV of the Convention.

In the preparation for war the modern state lays no end of force on the necessity for a rapid and systematic mobilization. The weak point, however, in preparing for a judicial contest hitherto has been the absence of any system by which to “mobilize judges and counsel” and get the legal forces out into the field. To attain this end the scheme presented by Lord Pauncefote and unanimously adopted by the conference will be found to be a most striking example of the happy adaptation of a means to an end where the way seemed blocked by infinite difficulties. It consists of a few simple provisions for the establishment of an International Bureau of Arbitration with an Administrative Council, and this, with the addition of various other features drawn from the United States, Russia, France, and Italy, with some others, constitutes the composite plan embodied in the Final Act. In brief outline it is as follows:

PERMANENT COURT OF ARBITRATION.--The diplomatic representatives of the signatory powers accredited to The Hague, including the Netherlands Minister of Foreign Affairs as president,[N] are to constitute an administrative council. This council shall organize and establish an International Bureau of Arbitration, of which it shall retain the direction and control, pursuant to the provisions of the conference. This bureau shall serve as the office of the court, and contain the archives, and the routine business shall be conducted therein. The signatory powers will each appoint four persons, who shall be men of recognized ability in international law and of high character, and the whole number of persons so appointed shall form a list or panel of members of the court, or the international bench. In case of a difficulty arising between two or more powers which they desire to submit to arbitration, they agree to notify the bureau, and the bureau will ask them to choose a certain number of judges from the panel, and these shall constitute the special bench.[O] An agreement is then to be drawn up stating the object of the litigation and the powers of the arbitrators. This agreement implies the engagement of the parties to submit in good faith to the sentence.

[N] The amendment to Lord Pauncefote’s plan, by which the Dutch Foreign Minister was made the president, is due to Mr. White, President of the American Commission.

[O] In case states, between whom a dispute may arise, do not of their own accord have recourse to the tribunal, Section 27 permits the powers to remind such states that the Permanent Court is open to them, and the giving of this reminder is declared to be a duty in the superior interests of peace, and is to be regarded only as an exercise of “good offices.” To this section the United States agreed on condition that its consent should not be regarded as a departure from the well-known principles underlying the foreign policy of the Republic.

ARBITRAL PROCEDURE.--For the purpose of promoting the development of arbitration certain simple rules are formulated. The powers will appoint special agents, who shall be intermediaries between them and the tribunal; they will also appoint counsel. The proceedings consist first of _instruction_--communications by the agents and counsel to the tribunal and the opposing party, of the pleadings, etc.; and, secondly, of _argument_--the oral development of the pleadings. The argument being closed, the bench shall deliberate in secret, and a decision is to be reached by a majority vote. The decision shall be written, and is to contain the reasons of law and fact upon which it is based. In case of disagreement, the dissenting opinion shall also be written and contain the reasons therefor; the signature of each member is to be added to his opinion. Subsequently the decision is to be read in open session, in the presence of the agents and counsel of the parties.

To sum up: it contains all the essentials; it is immediately available, provided with a permanent office, with officials, with a code of procedure, with directions for the commencement of proceedings, the presentation of cases, the taking of evidence by an International Commission of Inquiry, the oral explanation and argument of the printed case, the pronouncement of sentence in open court, the recording of such decision, the subsequent rectification of an error therein on the discovery of new and important facts of a decisive character, and the preservation of the records.[P]

[P] See Articles XV to LVII of the Convention.

BASIS FOR FUTURE EVOLUTION.--With these essentials there is a basis for a future evolution until the court shall have become as perfect in its organization and details as the High Courts of Justice in England or the Supreme Court of the United States.

It may not be amiss here to suggest the influence which the permanent tribunal is calculated to exercise in the future development of international law. The provision for a permanent bureau or record office, in which the archives shall be kept, is sure to prove a valuable condition for future growth, for the deposit in such bureau of all arbitral decisions will mark the true beginning of what we may call “International Law Reports.” To this bureau the powers undertake to send certified copies of all special arbitration agreements, whether embodied in treaties or otherwise; to it also will be sent the result of all special arbitrations hereafter resorted to, and in it will be deposited the papers, pleadings, and other documents, and especially the decisions of the permanent court, as well as those of any special courts which may hereafter be created from time to time. These archives will thus furnish a wealth of material not locked up or available only by jurists of the particular state where they may happen to be situated, as has too often been the case heretofore, but accessible alike to the great text writers and commentators of all nations. The criticisms and opinions of eminent text writers have heretofore been of great value in the improvement of international law, and under these new and more favorable conditions their influence should be even more beneficial in the future.

To the works of text writers will in future be added the able discussions of counsel and the learned opinions of judges handed down in writing, with the reasons upon which they are founded.[Q] Where rules and usages are becoming obsolete or obviously hostile to the growth of opinion, international judges may feel themselves bound for a time by them and give their decisions accordingly, but they may embody in their written decisions an _obiter dictum_ which shall prove the death knell of the old rule and the establishment of a healthier one. Many are the wholesome changes that have thus been wrought in English “judge-made law” as the direct result of learned and convincing _obiter dicta_.

[Q] For an admirable example, see the published proceedings of the Paris Tribunal in the Venezuelan case.

The interest which will thus be stimulated in the whole subject of international law will promote its study in all nations. Hitherto this branch of legal education has been rather slighted; not being regarded as essential to the ordinary practitioner, it has been neglected for the petty provisions of some state code or involved corporation law, but the influences already at work in favor of a more thorough and scholarly study of this branch will be effectively aided under the new conditions.

Though the law of nations should be uniform in all countries, a comparison of the leading works in different countries, English and German for instance, will reveal many differences partly traceable to the particular system of law in which the author was grounded, and in part to his peculiar “judicial instinct.” It is not often that one finds an English or American lawyer thoroughly grounded in the Roman system and the modern Continental systems founded upon it; quite as rare is it to find a Continental lawyer learned in the system of English jurisprudence. There have been such men, as, for example, Rudolf Gneist, whose great work on English Constitutional Law and History has become a classic. But, as a rule, there is among text writers on this branch of law and among the eminent jurists who have hitherto been connected with international tribunals much “provincialism in thought and conception,” if the phrase may be allowed, and to overcome it the future jurists who shall take part in international contests before the high tribunal of the nations will require to be more thoroughly grounded in the history and evolution of law in general and in the study of comparative law, both private and public, in particular, than their predecessors have been.[R] In this connection it is not too much to hope that the unifying influence of an international tribunal will eventually exercise a good effect in promoting the solution of various perplexing problems on the private side of international law, or what is known as “conflict of laws.”

[R] As evidence of increased attention to this matter in Germany, see Wertheim, Wörterbuch des Englischen Rechts.

Having indicated some directions in which the growth of international law will be likely to be promoted by the tribunal, the question suggests itself whether the jurisdiction of the international court will eventually be enlarged beyond the scope at present contemplated by the Convention of The Hague. Will the time ever come when such a court shall take cognizance of various matters which now lie without the sphere of “business disputes and questions of a juridical nature” and within that of essential interests, honor, race, and religious policies and ideals? The statement, which is sometimes heard, that such will never be the case, does not seem warranted when we regard the growth of law in general, and indeed the development of this particular branch of it, in the past, but it is safe to say that the time is a long way off; it will depend on many things: the efficiency of the court itself, the continued growth of neutral rights, the increasing necessity for preserving international peace, and the infinite forces which have tended to widen the jurisdiction of municipal law.[S]

[S] See Le Droit de la Paix, by M. Descamps.

In the growth of systems of “National Law”[T] there has been evolved from small beginnings an ever-widening jurisdiction. Impartial courts have inspired confidence which stimulated individuals to seek their aid, and this has reacted to extend their jurisdiction, until now the most intimate and complex relations between individuals, at one time wholly without their sphere, are in these days submitted as a matter of course to judicial settlement. Even questions of individual honor are settled according to the well-developed principles of libel and slander which were once considered as requiring a duel for their satisfaction.

[T] In contradistinction to “International Law.”

A similar growth may be expected in the jurisdiction of the international tribunal. Upon the reputation which it shall succeed in establishing for impartiality, freedom from race and national prejudices, regard for broad principles of law and equity, and the thoroughness and ability with which it shall discharge its high duties within its present sphere, will largely depend the extent to which an advancing public opinion will enlarge its jurisdiction until it shall embrace various classes of questions now declared non-arbitrable. No detailed classification, however, can be thought of; each difficulty as it arises must be determined in view of the surrounding circumstances with due regard to the growing public feeling in favor of judicial settlement. Under the system of voluntary arbitration there is abundant room for growth, for the _onus_ will be thrown on each contending state to square its conduct with that growing feeling in favor of arbitration which it will become more and more difficult to ignore. In every country the growth of law and the extension of the jurisdiction of the courts which administered it have been concurrent; the same rule must govern in the field of international law.

There are vast fields at present untouched by the law of nations. The discovery of the New World threw the jurists of that day into bewilderment as to how rights in the American continents might be acquired and established. A period of doubt and dispute ensued, until finally Grotius, by applying certain rules of Roman law regarding the acquirement of rights by individuals through purchase, possession, etc., and by inventing certain other rules, helped to supply a legal foundation upon which the acquisition of these territories could be regulated. Looking toward the future, one can see that, since there are no more continents to be discovered and the habitable parts of the earth have been already taken possession of by the colonial pioneer, the great principle of the survival of the fittest must henceforth mainly work itself out in competitions confined to the existing territories of the various powers. This will necessitate the consideration of some deep questions concerning the life and death of nations and the heirship to their dominions.[U]

[U] _Vide_ Contuzzi, Leggi di Composizioni e di Decomposizioni degli Stati.

It is widely believed, for instance, that China is dying a natural death. Assuming it to be the fact, what will be the rules to govern the inheritance of these Oriental domains? Great Britain, Russia, Germany, the United States, and other nations have acquired footholds and established interests within Chinese territory. Disputes will inevitably arise between them; many will be settled by mutual compromise in which, perhaps, the chief consideration will be the amount of warlike force behind the arguments advanced; many others will be sure to find their way to an arbitral tribunal, and before that body arguments will be made and by that body decisions will be handed down embracing principles not now to be found in the books, but which the circumstances of the case and the demands of justice require. And so will doubtless ensue a growth of “international judge-made law and equity” which will gradually work an extension of the arbitral jurisdiction into fields at present unknown to the law of nations. One thing is certain: the law so developed must not, on the one hand, be in conflict with the Grotian doctrine of the equality of states as rightly understood, nor, on the other, with that great all-pervading law of the survival of the fittest--a law which determines the destinies of men and nations alike.

THE FATE OF THE BEAGLE.

BY THE REV. V. MARSHALL LAW.

On the 27th of December, 1831, his Majesty’s ship Beagle, a ten-gun brig, under the command of Captain Fitz Roy, R. N., sailed from Devonport, England, on an expedition the purpose of which was to complete a survey of Patagonia and Tierra del Fuego that had been begun under Captain King (1826-’30); to survey the shores of Chile and Peru, and of some islands in the Pacific; and to carry a chain of chronometrical measurements round the world. The voyage was one of the most memorable ones in the annals of scientific exploration, for, besides the direct results, which, in the condition of geography and natural history at the time, constituted very important additions to knowledge, it carried Charles Darwin, then young and full of the enthusiasm for study that never left him. Mr. Darwin accompanied the expedition on the invitation of its commander, Captain Fitz Roy, and with the special sanction of the Lords of the Admiralty, and, as it turned out, next to the captain of the vessel was perhaps the most important member of it. He made it his special business to inquire into the character and method and the reason of all the natural objects and phenomena he saw, examining what was in the sea while they were upon it, and, when they landed, going ashore and studying the geography and geology and life of the region as thoroughly as the time of stay would permit, and collecting no end of notes and specimens as material for future study.

Besides his elaborate work giving the full story of the expedition and the details of its scientific results--a book which has ever since been a standard authority, and still keeps students in active discussion and investigation--the voyage of the Beagle has to be credited with having supplied the occasion for the composition of the briefer and more popular account which has become one of the classics of English literature.

More than this, and vastly transcending it in the importance of its bearing on the future of science, it was while going round the world and observing on the Beagle that those fundamental facts were gathered and stored in Mr. Darwin’s mind which, worked over and developed in after years and compared and combined with subsequently accumulated facts, bore fruit in the Origin of Species and the transformation of science that resulted upon the enunciation of Mr. Darwin’s theory of descent.