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papers has been copied from a common original, but no one has ventured to say in what archives the original may have been deposited or where we may look for it in the hope of coming upon its traces. It is a noticeable circumstance that the building known as the Exchequer, which in after times has served as the repository of our most valuable legal documents, was not in such use in the year 1177, in which year the Spanish Arbitration took place, and in which, according to the Dialogus de Scaccario, the first line of that treatise was drawn by Richard, Bishop of London, Treasurer of the Exchequer. If I had to embark my readers on a voyage of conjecture, I should accordingly set my vessel's course on a direct line to the Tower of London, for there the official papers of the Arbitration would have been under the charge of the Great Justiciar of England, the Alter Ego of the Crown in the absence of the King from the Realm of England, but my own opinion inclines to the view that the original papers were carried to Spain by the envoys on their return, and no originals remained in this country, with which Benedict's text and Hoveden's text might have been collated, so that the omissions of certain words in them might have been supplied, for certain gaps in the text do exist in both cases.

There are, however, some matters within the region of sober fact which may interest the reader, and which are amongst the circumstances which account for the preservation of a formal record of the proceedings of King Henry's Court on this occasion. It would appear from the Chronicle of Benedict, of Peterborough, that the Kings of Sevile and of Navarre sent each of them envoys of high rank to attend the King's Court at such time and place as the King should appoint, and that the envoys first appeared before the King at Windsor on 8th March, 1177, where they submitted to the King a Convention signed by the two Spanish monarchs on 28th August, 1176, in which they

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agreed to submit their disputes to the judgment of the King of England, and bound themselves to abide by his award. The text of the Convention itself is recorded by Benedict, and is printed in the Rolls Series from the Cecil MS., the text of which will be found to be more correct than the text which Hearne has followed.

King Henry, on this occasion, appointed a day to hear the envoys in London, but at the first hearing of them it was found that their Spanish pronunciation of the Latin language would cause their arguments to be unintelligible to the earls and baron, who with the Bishops of the two provinces of Canterbury and York constituted the King's High Court. The King accordingly adjourned his Court for three days, and directed the envoys of either party to state meanwhile the case of their party in writing. The respective claims of the two monarchs were thus reduced into the form of what civilians would describe in the present day as Acts on Petition, and were subscribed by the respective envoys, and having been duly propounded, have thus come to be preserved in writing in the present day. No responsive allegation appears to have been tendered on either side, and the King gave judgment on the uncontradicted pleas of the two parties.

It is a happy circumstance that on this occasion the official text of the King's Judgment has been preserved in addition to the official text of the pleadings in the case, as the King's Judgment brings to our notice the names of the individual members of the Curia Regis, who attested the King's Judgment as witnesses, the signature of Archbishop Richard, of Canterbury being at the head of the Bishops, that of Geoffrey, the King's son, Earl of Brittany, at the head of the Earls, and that of Richard de Luci, the Great Justiciar of England, at the head of the Barons. It will thus be seen that the Chief of the King's Justices, the prototype, if I may use such a terın, of the magistrate

both cases.

e region of

which are

e preserva ng Henry's

from the · Kings of is of high d place as

appeared here they

the two ich they

who fills the high office of Lord Chief Justice of England in the nineteenth century, took part personally in the twelfth century in the business of a great International Arbitration. It is thus not without a precedent that Lord Russell of Killowen has deprecated the constitution of permanent tribunals to arbitrate between the nations of the civilised world, for if we are disposed to study a page in the book of the most sagacious of the Kings of England, we shall find that he considered that the business of an International Arbitration might require on the part of the arbitrating State the constitution ad hoc of a tribunal which should comprise its highest judicial functionaries, so as to ensure the competency of the tribunal to deal judicially with the questions brought before it, whether those questions should be questions of law or questions of fact, for although on the occasion of the Spanish Arbitration there was no responsive allegation propounded in contradiction to the case set up by either party in his Act on Petition, both Benedict, of Peterborough, and Roger, of Hoveden, take care to state that the envoys of each King had in their suite a stalwart champion prepared to do battle for his King in case of any fact being brought into dispute between the parties, and of the King of England directing the dispute to be settled by a duel, and Roger of Hoveden mentions the additional fact that the champions brought with them their armour and their horses.

On the other hand, the same King did not think it necessary that a High Court of Judicature should be called upon in every case to arbitrate between nations which might be disposed to settle a dispute about territory by a friendly reference, rather than to have recourse to the arbitrament of the sword. For the same Chroniclers have recorded in the same year the terms of a peace (of Ivry) between King Henry the Second of England and Lewis the Seventh of France, under which the two monarchs agreed

COUNT VON MOLTKE AND PROFESSOR BLUNTSCHLI, ETC.

15

of England

cally in the

ternational cedent that he constitubetween the

disposed to of the Kings ed that the equire on the

ad hoc of a cial functionbunal to deal

it. whether questions of 7 Arbitration d in contra.

his Act on d Roger, of each King

to take the Cross together and go on a Crusade to Jerusalem, and meanwhile to refer their disputes about Auvergne and other territories to Arbitration, and they forthwith proceeded to nominate the arbiters on behalf of the two monarchs, namely, three Bishops and three Barons on the side of Lewis, and three Bishops and three Barons on the side of King Henry. Sic parva licet componere magnis.

The lesson which we learn from the above facts in Henry the Second's reign is that there is no necessity for nations to bind themselves to designate, à priori, permanent tribunals of Arbitration without any knowledge of the subjects upon which the tribunals may be called upon to arbitrate, so long as their respective Governments are prepared, and by State-Law are empowered, to refer the subject matter of any important International dispute to the arbitrament of their highest Judicial functionaries. The space at my disposal on this occasion will not allow me to discuss this topic at any greater length.

TRAVERS Twiss.

to do battle into dispute id directing of Hoveden ns brought

III.--COUNT VON MOLTKE AND PROFESSOR

BLUNTSCHLI ON THE LAWS OF WAR.

THE

ot think it ld be called ons which rritory by a rse to the iclers have ; (of Ivry) Lewis the chs agreed

HE following interesting opinions of the late Count

von Moltke, Field Marshal General, and of the late Dr. Bluntschli, Privy Councillor and Professor of Law, on the Laws of War, had for cause the publication of the Manual of the Laws of War by Land” by the Institút de Droit International in 1880. A copy of this work having been sent to Count von Moltke, he wrote as follows:

“Berlin, December 11th, 1880. “ You have been so good as to forward to me the Manual published by the Institut de Droit International, and you hope for

my approval of it. In the first place, I fully appreciate the philanthropic effort to soften the evils which result from war. Perpetual peace is a dream, and it is not even a beautiful dream. War is an element in the order of the world ordained by God. In it the noblest virtues of mankind are developed ; courage and abnegation of self, faithfulness to duty, and the spirit of sacrifice; the soldier gives his life. Without war the world would stagnate, and lose itself in materialism.

I agree entirely with the proposition contained in the introduction that a gradual softening of manner ought to be reflected also in the mode of making war. But I go further, and think the softening of manners can alone bring about this result, which cannot be attained by a codification of the law of war. Every law presupposes an authority to superintend and direct its execution, and international conventions are supported by no such authority. What neutral States would ever take up arms for the sole reason that two Powers being at war the laws of war' had been violated by one or both of the belligerents ? For offences of that sort there is no earthly judge. Success can come only from the religious, moral education of individuals, and from the feeling of honour and sense of justice of commanders who enforce the law and conform to it, so far as the exceptional circumstances of war permit. This being so, it is necessary to recognise also that increased humanity in the mode of making war has in reality followed upon the gradual softening of manners. Only compare the horrors of the Thirty Years' War with the struggles of modern times. A great step has been made in our own day by the establishment of compulsory military service, which introduces the educated classes into armies. The brutal and violent element is, of course, still there, but it is no longer alone, as once it was. Again, Governments have two powerful means of preventing the worst kind of excesses—strict discipline maintained in time of peace, so that the soldier has become habituated to it, and care on the part of the department which provides for the subsistence of troops in the field. If that care fails, discipline can only be imperfectly maintained. It is

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