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of a neutral were entitled to all the immunities and privileges of home waters. The American Government persistently endeavoured by its diplomacy, by the decisions of its judicial tribunals, by resolutions in Congress, by declarations in the messages of its Presidents, to have these just and righteous principles recognized. In fact, it was for this that their last war with Great Britain (1812-15) was fought. The United States, it was supposed, would certainly press for an acceptation of these principles. But it was not likely that England would ever consent to relinquish her own long-cherished interpretation of the “law of the sea.” “The coarse dialectics of the older English judges " * had mixed sovereign and belligerent powers; and, inspired by the spirit and precedents of the semi-barbarous times and deeds of Drake and Raleigh, claimed the right to sit in judgment in its own tribunals, according to its own forms of procedure, upon the acts, the rights, the property, and even the liberties of citizens of a neutral state. From its courts, no matter how flagrant the wrong done, “there was no appeal except a diplomatic representation to the king.” † It is not surprising, therefore, that the claims of English captors were upheld to the extremest limit possible, nor that many of the decisions of the English maritime tribunals were rank with injustice. Even when the increasing navies of other nations weighed sufficiently upon English statesmen to obtain her assent to the declaration in the Treaty of Paris (April 16, 1856), that an enemy's property on board neutral vessels, and neutral property found in an enemy's vessel, should be free from capture, except contraband of war, yet as, unfortunately, there was no formal definition of what should be considered
Wharton's Criminal Law. Preface to 7th ed. 1874 : xviii.
† “ Belligerent and Sovereign Rights as regards Neutrals during the War of Secession.” Baston, 1853. This is the able and learned argument of the Hon. Wm. Beach Lawrence, in the case of The Circassian, before the Commissioners appointed under the 12th Article of the Treaty of Washington, and has much professional weight from the fact that the International Tribunal reversed the decision of the highest American Federal Court, as reported in 2 Wallace's U. 8. Court Rep. 135.
contraband of war, British jurists forthwith applied their own narrow interpretation, and maintained that the products of a neutral state, though not directly applicable to warlike uses, but which might incidentally aid or assist a belligerent, were within the meaning of the phrase. It was not therefore probable that, if so much of the old leaven remained there would be any chance of England consenting to appear before a sovereign and submit to his award.
Those who strove and yearned for a peaceable solution of these grave questions neither adandoned hope nor allowed themselves to be disheartened. Mr. Cobden wrote to me from Midhurst, March 12, 1865: “I have great faith in the aggregate intelligence of your country whenever its attention is forced by adverse circumstances to a serious study of politics. When the war is over you will have a great financial difficulty to deal with.
will soon surmount all these follies when the nation finds itself in the school of adversity.” These words are the more noteworthy in that they were written but a few days before his lamented death.
Other modes of adjustment were suggested and discussed. Precedents were sought for and examined, and the research disclosed such various schemes, almost stratagems, for settling disputes without recourse to war, that one was tempted to assert that a philosophy directly the reverse to that upheld by the author of “Leviathan " was more in consonance with the nature of man.* After mature reflection a Court of Arbitration was proposed to various jurists who took an interest in the matter, in substance that developed in the following letter.
In November, 1864, during a short visit to America, it happened to me to mention the proposed Court of Arbitration to President Lincoln. He observed that the idea was a good one in the abstract, but that in the then temper of the American people it was neither possible nor popular. In
• Libertas. Molesworth's ed., 1839, ii. 157 et seq.
fact, as he quaintly expressed it, we were not near enough to the millennium for such methods of settling international quarrels. Still, he thought the idea worth airing.
A draft outline of the proposed court of arbitration was refused by more than one editor ; but at last Mr. Greeley, who feared no unpopularity where a cause was, as he thought, entitled to a hearing, gave it a place in the columns of the New York Tribune, March 18th, 1865. The letter was addressed to the able and conscientious correspondent of that journal at Paris, Mr. W. H. Huntington, and was as follows :
Paris, March 3rd, 1865. MY DEAR SIR,-You asked me to put in writing the observations which I made to you yesterday touching the outstanding questions between England and the United States. I should be sorry to make you read all that you so kindly listened to. It would be to tax you rather too severely, But the current of my remarks was to this effect :
I. That both England and the United States preferred claims which, if not judiciously managed, might and perhaps would lead to war.
II. That the American claims were chiefly the depredations of the Alabama, whilst it seemed from the tenor of Mr. Layard's recent speech, that the British claims were also such as to rest upon questions of law. Neither set of claims was strictly national; they were rather those of individuals, merchants, ship-owners, and others.
III. That as to such claims, war was a barbarous manner of enforcing them; that the most successful war would after all be a most expensive and unsatisfactory process of litigation; and that the civilized and Christian way of ascertaining their validity and extent should be by arbitration.
iv. That the best manner of composing such a court of arbitration would be, that each party should select some competent jurist, those two to select an umpire. The claims to be presented, proved, and argued before this Court, whose decisions should be final and without appeal.
V. That such a proposition, proceeding from our Government, would, without doubt, receive the countenance and support of all intelligent Englishmen. It is true, that some of the speeches recently made in Parliament about us and Canada are of a nature to discourage such expectations. On the other hand, it must be borne in mind, that these gentlemen form a class apart ; that it is their political faith to
believe and say unseemly things of Republican institutions, of the men, habits of life, and principles of action developed under them. But it was long ago that the wisest of men gave us the measure of such people, and the experience of mankind has confirmed his judgment.
VI. Such a proposition from our Government would at once quiet all the foolish alarms which have, or appear to have, taken possession of so many persons in England. It would also uphold and strengthen all the advocates of progress. It would give greater force to their arguments in favour of just reforms and liberty; and this, not only in Great Britain, but throughout Europe. The abandonment of the old system of arbitration by a reference to a Sovereign, more or less unfit from the very nature of his position, and the introduction of a tribunal, almost republican in its character, whose decisions would have a weight as precedents, an authority heretofore unknown as expositions of International Law, would be no trifling events in the march of Democratic Freedom.
VII. Such a proposition would also be in accord with our traditional policy of peace and good-will towards men.
The most serious objection that has been urged, so far as I have heard, against such a Court of Arbitration, is the difficulty of finding gentlemen not already biased by their feelings or in some way committed in their opinions.
The objection applies, however, in a measure to all human tribunals; it would apply to arbitration by a sovereign, and would leave us no solution other than the dread arbitrament of war. For myself, I cannot believe that there are not to be had in England and America gentlemen of the requisite learning, experience, and impartiality for a position so dignified and useful. At all events, there are many eminentmen in Europe in every way qualified for this high duty. I have in my mind's eye a Swiss publicist,* who, after having filled the most responsible stations at home, is now worthily representing his people in their most important diplomatic post. The decisions rendered by him and gentlemen like him would be such as two great and free nations could accept with satisfaction. I dare say he has friendly feelings towards the Republic, but he cannot be wanting in like sentiments for the old Champion of liberty. The preferences of such enlightened statesmen could not possibly be of a
* I may now say that this referred to that most worthy, high-minded gentleman, Dr. Kern, formerly President of the Federal Council, but then Minis!er to France.
character to influence their judgment, and the parties most interested might well be content to abide their award. Believe me, my dear Sir, yours sincerely,
THOMAS Balch. The publication of this letter proved very conclusively that whatever might be the merits of the proposed court of arbitration it certainly was not popular in the United States. Two years later the accomplished editor of
“ SOCIAL Science,” Mr. Westlake,* was induced by an English jurist, for whose opinion he had great respect, to reprint it in that periodical, March 15, 1867, and spoke of it as an “important letter," but made no further comment. Nevertheless the idea was well received by such men as Laboulaye, Henri Moreau, and other members of the Société de la Legislation Comparée, in France; by von Holtzendorff, Kapp, and other honoured publicists in Germany. That the letter in which the plan was originally sketched out should be lost sight of was quite natural and usual. I know of no more affecting picture of the sic vos, non vobis, haps and mishaps of literary life than that traced by Blüntschli in his Introduction to his Code of Belligerent Laws,+ where he tells how the men, who propounded or elaborated some great governing principle of International Law, have in the course of time been as absolutely forgotten as the skilful but obscure workman who converts the dingy pebble into the brilliant gem. The proposed tribunal was, however, made the subject of some articles and two or three prelections. Discussion gave it vitality. It grew in favour, was considered plausible, then feasible, and finally took a visible form and shape in the Treaty of Washington.
It is not within the purview of these observations to discuss at large the provisions of that Treaty. The Three Rules are so obnoxious to numerous and serious objections
* This is a mistake, Mr. Westlake never was editor of the journal,
“ Social Science."
t Le Droit International Codifié, par M. Bluntschli, translated by Mr. Lardy, Secretary to the Swiss Legation, Paris, 1870.