第56章 PROPOSALS TO ABATE WAR(3)

Againit is notI thinkto be denied that the composition of courts(if I may for the moment so style themof international arbitration is notaltogether satisfactoryAn indispensable element in it is one or more ofthe class of lawyers who are commonly called jurists But this word has muchchanged its meaningAs lately as the last century there was a class of lawyersbearing this title who had made a special study of International Lawandwhose collective opinion had serious influence on the development of thesystemBut in England the Ecclesiastical and Admiralty Courts have beentransformedand the special class of lawyers trained in Roman Civil Lawwho practiced in those courts has either disappeared or is on the point ofdisappearingNobody can quite say at present what a jurist isThe wordis used in a number of new sensesand in point of fact most famous foreignwriters on International Law are salaried functionaries of foreign chanceries,nor can any reader of very modern treatises on the subject fail to see thatmany of thenare strongly affected by the official connection of the writerwith his Governmentand by his knowledge of the interest which he supposesthat Government to have in the establishmentmaintenanceor developmentof particular features of the international systemThis last-mentioned drawbackon the usefulness of international quasi-courts of arbitrationthat in ourday they are not always satisfactorily constitutedis closely connectedwith one general defect which at present characterizes them -they do notexercise any continuous jurisdictionthey are always formed for the singleoccasionIt is quite uncertain what weight is to be attached to the awardof international arbitrators as a precedentThe mode in which InternationalLaw makes progress in default of a regular Legislature is a very importantsubjectwhich I have not been able to take up in a manner worthy of it inthe present course of lecturesbut which I hope to enter upon at some futuretimeThere ishoweverno doubt that a quasi-judicial awardgiven on aserious occasionand acquiesced in by powerful nations who were partiesto the litigationdeeply and permanently affects the lawBut quasi-courtsof arbitratorsconstituted ad hocof necessity attend simply to the questionin immediate disputeand do not weigh the opinion they give regarded asa precedentThey cannot look before and after -to the entire history ofthe Law of NationsThis result of their defective structure is particularlyconspicuous and particularly dangerous in what was perhaps the greatest ofall arbitrationsthat which settled the difference which had arisen betweenGreat Britain and the United States as to liability for the depredationsof Southern Confederate cruisers on Northern American shippingI have nothingto say against the value of the Geneva arbitration in regard to the particularoccasion on which it was resorted toIt put an end to a number of bitterlydisputed questions which had accumulated during the War of Secessionandwhich might have smouldered on for yearsto the great danger of the wholecivilised worldBut the serviceableness of the Geneva award in its effectson International Law is much more questionableEven at the outsetthe disputantsare found arguing that the arbitrators should have regard to principles whichone of them did not admit to be included in International LawGreat Britainprotests against this principlebut nevertheless allows the arbitrationto proceedWe mayhoweverbe quite sure that if an analogous dispute shouldhereafter occurthis principle will be urged by any Power which has an interestin insisting upon itand under any circumstances a grave uncertainty isintroduced into International LawBut the Geneva decisionregarded as aninternational precedentis open to much more serious objection than this.

As is well knownGreat Britain during the Confederate War was a neutral,and she was condemned by the arbitrators to pay very heavy damages as punishmentfor breaches of her duty as a neutralShe was penally dealt with for a numberof acts and omissionseach in itself innocentShe had a standard of duediligence applied to her neglects which was new and extremely severeAndgenerally she had a rule of neutral duty applied to her whichif it hasbeen really engrafted on the Law of Nationshas changed that law materiallyfor the worseBut if there be one thing more than another which a true courtof international justice might be desired to keep in view in its decisions,it is their future effect on the rights of neutralsNothing tends to enlargethe area of maritime wars so much as the neglect of these rightsNothingtends so much to make war intolerably oppressive as any rule which helps,beyond what is absolutely necessaryto invade the principle that neutralstates are merely states which have kept out of a calamity which has fallenon othersand which merely desire to follow their own business in theirown wayFrom this point of viewthe result of the Geneva arbitration isnot happyIt turns back pro tanto the drift of legal opinion on neutralfightswhich for many years had been setting in another directionThe GenevaarbitrationI repeatconferred great benefit for the moment on Great Britainand the United StatesButlooked at as a precedent likely to exercise seriousinfluence on the whole Law of NationsI fear it was dangerousas well asreactionary and retrogressive.