recommended a conventional line, which it designated"; and accordingly, upon the advice of the Senate, the President of the United States opened a further negotiation with the British Crown. Cases of fraud and collusion on the part of an international arbiter are rare. Puffendorf 10 alludes to an instance in which the Emperor Maximilian and the Doge of Venice submitted their differences to the arbitration of Pope Leo X, while each of them privately tampered with the Roman Pontiff to declare on his side.

Cases in which the decision of the arbitrating Power is in direct conflict with the rules of justice are equally rare. They occur for the most part where the arbiter has some advantage in view, which may accrue to himself from an unjust decision, and where he is sufficiently powerful not to fear the resentment of the parties, who have deferred the settlement of their conflicting claims to his decision. Of this character was that decision of the Roman people, which Livy narrates with very strong reprobation, when the cities of Ardea and of Aricium hav- Ardea and ing deferred their dispute in regard to the sovereignty over a certain country to the arbitration of the Roman people, the Assembly of the Roman Tribes adjudged the territory in controversy to be the property of the Roman State". Grotius 12 has very justly observed, that although in a doubtful case of title both Nations are bound to seek for conditions of compromise rather than to have recourse to war, yet this obligation presses more strongly on the Nation which makes a claim, than on the Nation which is in

9 American Annual Register, VI. p. 141. 1830, 31. p. 146.

10 Puffendorf, Law of Nature and of Nations, L. V. c. 13. § 4. Guicciardini Istoria, Tom.

11 Livii Historia, L. III. c. 71. 12 Grotius, L. II. c. 23. § II. Wolff, Jus Gentium, § 576.

Aricium.

possession of a thing; for it is agreeable not only to civil but to natural law, that the possessor of a thing in all cases of equal claim should be in a more favourable position than the party who seeks to disturb him: Melior est conditio possidentis. A claimant accordingly, who may be satisfied of the goodness of his cause, but cannot prove that a party in possession is wrongfully in possession of a thing, cannot lawfully make war, because he has not the right to compel the other to give up possession. It is not necessary that Nations, in referring any matter in dispute between them to the arbitration of a third party, should select an independent State or a Sovereign a Sovereign Prince as arbiter. It was by no means unfrequent in the middle ages for Nations to refer the decision of matters, which might be in controversy between them, to the arbitration of the Faculty of Law in some famous University. Thus we find the Doctors of the Law School great Law School of Bologna continually called upon to furnish arbiters in the disputes between the Italian Republics. On the other hand, the most powerful States in modern times have not hesitated to refer to Commercial Tribunals the decision of questions, which may have arisen between themselves and a less powerful State, and in which the commercial interests of their subjects have been concerned. Thus

of Bologna.

Great Britain has on two very recent occasions agreed Senate of with Portugal to refer to the Senate of the city Hamburg of Hamburg the decision of claims made by British Merchants against the Portuguese Government, and the Senate of Hamburg has undertaken on both occasions the arbitration; and it has decided the dispute on the first occasion in favor of the Portuguese Government 13, and on the second occasion in favor of the British Merchant1.

13 Croft's Case, 1858.

14 Shortridge's Case, 1861.

reasonable

§6. Arbitration, writes Vattel15, is a a very mode, and one that is perfectly conformable to the law of Nature, for the decision of every dispute which does not directly interest the safety of a Nation. Accordingly we find it sometimes a matter of stipulation in treaties of alliance between independent States, that their disputes shall be submitted to arbiters, in case they cannot adjust them by amicable conference. Such a provision is more particularly a feature of Federal Pacts, under which neighbouring States associate themselves together for the permanent purpose of mutual defence, and are recognized internationally in the character of a Confederated Body of States. Thus it was provided by Article XI of the Act which constituted the Germanic Germanic Confedera Confederation, that the Confederated States should tion. not make war upon one another under any pretext whatsoever, nor should prosecute their differences by force of arms, but should refer them to the Diet. The Diet on the other hand has undertaken to mediate between the States which may have differences with one another; and if its mediation should fail, then to refer their dispute to an Austegral tribunal (Austrägalinstanz), to the judgment of which the litigant parties shall submit without appeal. After a similar design was the project of the Abbé St. Pierre for securing a Abbé St. perpetual peace amongst the European Powers, which was circulated in Europe shortly after the conferences which led to the peace of Utrecht, and at which conferences the Abbé was present. By a kind of pious fraud, with a view to recommend it more strongly to the adoption of Sovereign Princes and their ministers, he attributed the project to King Henry IV. of France

15 L. II. c. 18. § 329.

Pierre.

Mediation.

and his minister Sully 16. He subsequently developed his plan more fully in 1729, and based it upon the state of possession amongst the European Powers as settled by the treaties of Utrecht, seeking to make that state of things perpetual by preserving the equilibrium of forces between those Powers, and by adjusting all controversies between them by pacific means. With this object in view he proposed that the members of the Christian commonwealth of Nations should renounce the right of making war upon one another, and accept the mediation of an European Diet for the settlement of their mutual differences, three fourths of the votes being necessary for a definitive judgment". This scheme in its speculative details has many striking features of resemblance to the machinery of the existing Germanic Diet.

§ 7. Mediation, whereby a third Power interposes its good offices to bring about the peaceable settlement of a matter which is in dispute between two Powers, differs from Arbitration in this respect, that the decision of an arbiter is obligatory, whilst a mediator merely gives counsel and advice. It is perfectly lawful for an independent Power to offer to mediate between other independent Powers which are either preparing for or actually engaged in war, and to suggest to them a compromise, if a claim of right has

16 Projet de Traité pour rendre la Paix perpetuelle entre les Souverains Chrétiens, pour maintenir toujours le commerce entre les Nations, et pour affermir beaucoup davantage les maisons souveraines sur le trône, proposé autrefois par Henri le Grand Roi de France, agréé par la Reine Elizabeth, par Jaques I. et par la plupart des autres po

tentats de l'Europe.

1713.

Utrecht,

17 Wheaton's History of the Law of Nations, p. 262. It is not improbable that the project of the Abbé St. Pierre may have suggested to Prince Metternich some of the details of his plan for organising the Diet of the Germanic Confederation.

been set up by either of them; or in case the dispute should relate to an injury which has been inflicted upon either of them, to advise that a reasonable satisfaction for the injury should be offered and accepted. It is obviously the duty of an individual, when he is not under any obligation to take part in a dispute between his friends, to endeavour to bring about an amicable settlement between them; whilst it is frequently the interest of a Nation to prevent war breaking out between other Nations, for some of the sparks of the fire which is kindled in its neighbourhood may possibly reach it; whilst, on the other hand, it may be dangerous to a Nation to have both or either of its neighbours ruined. A care for its own safety will therefore justify a Nation in interposing its good offices between disputing Nations. The interposition of a Nation to prevent a war between two other Nations is an act of a totally different character from the intervention of a Nation in the domestic affairs of another Nation; and whilst the latter is objectionable on principle, as an encroachment on the just rights of an independent political community, the former is not only in strict law an international proceeding, but may be the imperative duty of a Nation, whenever the occurrence of war would oblige it to take part with one or other of the belligerents. Puffendorf 18 holds that two or more neutral Nations, if they have a common interest that a war should be terminated, may lawfully agree upon what terms peace ought to be concluded between the belligerent parties, and may thereupon prescribe such terms of agreement to the belligerents, with a manifesto that they will join their forces against the party which refuses those terms; and that this sort of mediation

18 Law of Nature and Nations, L. V. c. 13. § 7.