the Law of Nations."1 St. Pierre contemplated a perpetual alliance, or league, of which the states of Europe should be members, having in all, either singly or in groups, twenty votes. The allies should renounce the right of war, and submit their differences to the arbitration of the general assembly of the league, whose decision, if it carried three fourths of the votes, should be final. If one of the allies should refuse to abide by such decision, or make treaties in contravention of it, or make preparations for war, the allies should arm against the refractory member with the view of reducing it to obedience. The representatives of the league were to be empowered to pass, by a plurality of votes, all laws necessary to carry the objects of the alliance into effect, but entire unanimity of the allies was required for changes in the fundamental articles of their confederation.

2. Jeremy

About the year 1789, and just before the great revolutionary outburst in Europe, Jeremy Bentham sketched Bentham's. a plan of a general congress, which was long afterwards published. The nations were first to be led to reduce and fix their military establishments in some fair ratio, and also to abandon their colonies, for which so much blood had been shed. Then a congress was to be established, consisting of two deputies from each state, the agency of which should consist in reporting and circulating its decrees, and in placing refractory states under the ban of Europe. Bentham was willing that a fixed contingent should be furnished by the several states for the purpose of enforcing the decrees of the court, but thought that public opinion and a free press would prevent the necessity of such an extreme measure.

In 1795, Immanuel Kant published a short essay inscribed "Zum Ewigen Frieden," "touching perpetual peace." Some of his preliminary articles were the following: That no state should be merged by inheritance, exchange,

3. Kant's.

1 For St. Pierre's, comp. Part ii., § 17; for Bentham's, Part iii., § 21; for Kant's, Part iv., §§ 36, 37. Comp. also Kant, Zum Ewigen Frieden, in his Works, vol. v., pp. 411-466 (ed. Leipz., 1838); and Ladd, in Prize Essays on a Congress of Nations, pp. 509-638 (Boston, 1840).

sale, or gift in another state; that standing armies should in time cease; that no state debts should be incurred with reference to external politics; that no state should interfere with force in the affairs of another. Then follow the definitive articles, the first of which is, that every state shall have a republican constitution, or one in which all the citizens share in the power of making laws, and deciding on questions of peace and war. The next is, that international law shall be based upon a confederation of free states; and finally, there is to be a citizenship of the world, limited to the notion of the free access of all men to, and their residence in any state upon the earth's surface. The congress which Kant proposes is not to be indissoluble, but is to be held and to be dissolved according to the pleasure of the members.1

In 1838 the New York Peace Society petitioned the House of Representatives of the Congress of the United Action of

a petition of

a peace soci

ety.

States, that all difficulties with other states should Congress on thenceforth be submitted to third powers, and that the government should be requested to unite with other nations in establishing, if possible, a board of international arbitration with a code of rules obligatory on the parties to the plan. The House of Representatives had no power to do anything except to express an opinion on such a subject. An able report, adverse to the prayer of the petitioners, was presented; in which some of the points were that without the unanimity of the nations, and even if one great power alone should decline concurrence, the plan would be rendered abortive; that a code for which the parties to it were not prepared could do little good; and that the decrees of a board of arbitrators would be either nugatory or might be used for the worst ends, to which we may add that it is hardly conceivable that a strong nation would submit vital points of its policy to a court of arbitration. The committee, however, which made the report concurred with the memorialists in recommending the submission of our international difficulties to impartial powers, if that could be effected.

1 Comp. Wheaton's History, p. 754, and Kant's Rechtlehre, § 61, the end of the treatise.

Mr. Field's plan.

In his "Outlines of an International Code" (1872), Mr. D. D. Field has a plan of a court for arbitration, to be constructed by a league of nations, which is worthy of notice. When an agreement cannot otherwise be effected, a joint high commission of ten, chosen in equal numbers by the two parties between whom a difficulty subsists, shall report within six months their efforts to reconcile their principals. If they are unsuccessful, those parties shall give notice of the same to the other nations that have accepted the code, and the latter shall prepare the way for a high tribunal of arbitration, by their nomination of four persons each, out of whom, by successive rejections, the contestants may eliminate such as they do not like, until seven only remain. These are to compose the court. The parties to the code are to bind themselves to unite in forming the commission and the tribunal, and to submit to the decision of the latter, whenever their cases come before it. If any one of them shall begin a war in violation of the code, the others are to bind themselves to resist the offending nation by force. The selection of arbitrators, as above described, is suggested by a plan under the old confederation of the United States.

There seems to be no provision in this plan for the event of a member refusing to obey the arbitrators' sentence. And yet this would be most likely to happen, when the most important disputes were brought before them. In any plan a danger would arise from the more powerful members resisting the decrees of the court or making it their instrument.

3. Private or compromis

sory arbi

§ 227.

3. Private arbitration is simply an agreement of two powers to submit their differences to a third party, with a promise to stand by its decisions, if the conditions tration. are complied with according to which the case is put into its hands. This form of arbitration, which is common over the world, is borrowed especially from Roman private law, as it stood in the time of Justinian, when the parties no longer bound themselves by the penalty, which had been at first the

essence of the transaction. Together with the engagement to stand by the sentence, the transaction may include the appointment of arbitrators, and the consent, it might be, to special rules, such as related to the time, the place, and the length of sitting of the board of arbitration. The number of arbitrators may vary from one upward. The choice of them may proceed from the parties, or these, after selecting together or apart an even number, may leave the umpire to be named by those already chosen, or they may request foreign powers to name one or more to act concurrently with their own appointThus the Geneva tribunal for the "Alabama claims," was composed of five persons named by the Queen of England, the President of the United States, the King of Italy, the President of the Swiss Confederation, and the Emperor of Brazil, respectively. Sometimes a single sovereign or magistrate is requested by the parties to take charge of a difficulty between them, in which case the evidence bearing on the case will be gathered and laid before him by persons of his appointment, and the parties through their agents will have a hearing.

ees.

The parties may make their own rules for the transaction, but if they make none, or omit to make any that are of essential importance, Roman law is understood to guide the proceedings in those particulars.1

A decision made by arbitrators would become null for various reasons. If, for instance, their number were broken by

1 Comp. Heffter, § 109. "In case there are differences of opinion [among arbitrators], without question the majority is to be regarded as deciding in the matter." Phillimore, iii., p. 4. If there be an uneven number of arbitrators, the opinion of the majority would, according to the reason of the thing, and the jus commune of nations, be conclusive." To same effect, Bluntschli, Mod. Völckerr., $493. "The sentence of the majority is the sentence of the entire court." So Dr. Goldschmidt in his excellent Projet, submitted to the Institut de Droit International in 1874, § 25. "Toute decision, définitive ou provisoire, sera prise à la majorité de tous les arbitres." This is according to the rule of Roman law. Ulpian in the Digest, iv., 8, L. 27, § 3, says: "Si major pars consentiet, ea stabitur; alioquin poena committetur." And he adds that a compromiss is allowed where the number of arbiters is odd, not because it is easy to have an agreement of all, "sed quia, etsi dissentiant, invenitur pars major cujus arbitrio stabitur."

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 being 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

M.

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. 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. lxix.), 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.