1_ 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
 r-1950
 
 'ARBITRATION " AS A TERM OF 
 INTERNATIONAL LAW
 
 WORKS BY THE AUTHOR. 
 
 Some facts about Alsace and Lorraine, 1895. 
 
 The Brooke Family of Whitchurch, Hampshire, England, 
 
 together with an account of Acting-Governor Robert Brooke 
 
 of Maryland and Colonel Ninian Beall of Maryland, 1899. 
 The Alabama Arbitration, 1900. 
 Emeric Cruce', 1900. 
 The Alasko-Canadian Frontier, 1902. 
 The Alaska Frontier, 1903. 
 The English Ancestors of the Shippens and Edward Shippen 
 
 of Philadelphia, 1904. 
 The Swift Family of Philadelphia, 1906. 
 Balch Genealogica, 1907. 
 L'Evolution de 1' Arbitrage International, 1908. 
 La Baie d'Hudson, est elle une mer libre ou une mer fermee, 
 
 1911? 
 
 La Baie d'Hudson est une grande mer ouverte, 1913. 
 Diffe'rends juridiques et politiques dans les rapports des 
 
 Nations, 1914. 
 The Influence of the United States on the Development of the 
 
 Law between Nations, 1915. 
 Legal and Political International Questions and the Recurrence 
 
 of War, 1916. 
 
 The Philadelphia Assemblies, 1916. 
 A World Court in the light of the United States Supreme 
 
 Court, 1918.
 
 'ARBITRATION " AS A TERM OF 
 INTERNATIONAL LAW 
 
 BY 
 
 THOMAS WILLING BALCH 
 
 \\\ 
 
 L. H. D. TRINITY COLLEGE (HARTFORD) 
 
 MEMBER OF THE PHILADELPHIA BAR 
 A VICE-PRESIDENT OF THE HISTORICAL SOCIETY OF PENNSYLVANIA 
 
 REPRINTED FROM THE COLUMBIA LAW REVIEW 
 NOVEMBER AND DECEMBER, 1915 
 
 PHILADELPHIA 
 
 ALLEN. LANE AND SCOTT 
 1920
 
 o 
 
 i 
 
 (0 
 
 TO 
 
 MY FRIEND 
 
 JOHN BASSETT MOORE 
 
 A MASTER OP THE SCIENCE OF INTERNATIONAL LAW
 
 PRELIMINARY NOTE. 
 
 This essay was originally published in The 
 Columbia Law Review in the numbers of November 
 and December, 1915. It is now reprinted with the 
 kind permission of the editor of The Review. 
 
 PHILADELPHIA, JUNE ISTH, 1920.
 
 "ARBITRATION" AS A TERM OF INTER- 
 NATIONAL LAW. 
 
 In spite of the breaking out of The Great War, 
 involving in its meshes more than half of the land 
 on the earth and the majority of the great powers 
 of the world as well as many small ones, at present 
 (May, 1915) ten in all, nevertheless ample proof is to 
 be found in the historic development of International 
 Arbitration, especially within the past fifty years, as 
 a mechanism for settling differences between nations 
 by judicial means, that, thanks to the establishment 
 of the International Courts which sat upon the 
 Alabama Claims and the Bering Sea Fur Seal Fisheries 
 cases respectively, a precious instrument to avoid 
 war in many instances beyond the scope of diplo- 
 matic negotiations to settle, has been evolved in 
 the institution known as International Arbitration. 
 Unfortunately, of late years, a tendency has arisen 
 to confound International Arbitration with Munici- 
 pal Arbitration and, to minimize if not indeed to 
 deny entirely the judicial quality of arbitration as 
 a component part of the Law between Nations. 
 Doubtless this confusion in the thoughts of those
 
 who have not studied attentively the philosophical 
 development of the Law between Nations is largely 
 due to a failure to realize that the word Arbitration 
 has come to have different meanings according as 
 it is used in Municipal Law on the one hand and 
 International Law on the other. It seems, there- 
 fore, well worth while to examine the meaning of 
 the word arbitration, as it has been defined in the 
 older dictionaries of the English language, both in 
 England and America, together with the meaning 
 of the word mediation. Then to test the sense 
 and meaning of the word arbitration as used by 
 some of the undoubted masters of the science of 
 the Law between Nations. And finally compare 
 the judgments given by the Geneva and Paris Inter- 
 national Tribunals in the Alabama Claims and the 
 Bering Sea Fur Seal cases respectively, with some 
 decisions rendered by some notable Municipal 
 Courts. In that way a just opinion as to what 
 was intended by the men who thought out and 
 developed the institution of International Arbitra- 
 tion could be formed. 
 
 First of all let us see what meaning the earlier 
 English lexicographers have assigned to the word 
 arbitration and then what sense the earlier American 
 lexicographers have given to the same word.
 
 In the fourth edition of Edward Phillipps's well 
 known dictionary, The New World of Words, pub- 
 lished at London in 1678 by himself, he merely says: 
 
 "Arbitrator (Lat.) An umpire, a commissioner, 
 chosen by mutual consent to decide controversies 
 between party and party." 
 
 In his fifth edition printed in 1696, he says: 
 
 "Arbitrator, (Lat.) An umpire, a commissioner, 
 chosen by mutual consent to decide controversies 
 between party and party." 
 
 "Arbitrament, An award, Determination, or Judg- 
 ment which one or more make at the request of two 
 or more parties upon some Debt, Trespass, or other 
 Controversie. " 
 
 In the seventh edition of I72O, 1 much more is 
 given in reference to the general subject of arbitra- 
 tion, as follows: 
 
 "Arbiter, an Arbitrator, an Umpire, a Sovereign 
 Disposer. See Arbitrator. 
 
 "Arbitrage, an Arbitrator's or Umpire's Decree 
 or Sentence. 
 
 "To arbitrate, to award, give Sentence, adjudge, 
 or act as an Arbitrator. 
 
 "Arbitration, the Act of Arbitrating, the Putting 
 
 1 The New World of Words, or Universal English Dictionary, com- 
 piled by Edward Phillipps, Gent. Seventh edition, London, 1720.
 
 an End to a Difference by the Means of Arbi- 
 trators. 
 
 "Arbitrator, an extraordinary Judge, indifferently 
 chosen by the mutual Consent of two Parties, to 
 decide any Controversy between them; a Days-Man 
 or Referee : The Civilians make a difference between 
 Arbiter and Arbitrator; the former being obliged to 
 proceed according to Law and Equity; whereas the 
 latter is left wholly to his own Discretion, to act 
 without Solemnity of Process, or Course of Judg- 
 ment. " 
 
 Thus Phillipps, while at first he does not define 
 very precisely what an arbitrator is, gradually in 
 his succeeding editions leans more and more to the 
 view that an arbitrator is a judge and his decisions 
 are judgments. Again Phillipps, in his fifth edition, 
 speaks of arbitrament as being a judgment. In his 
 seventh edition of 1720, the judicial quality of 
 arbitration, using the word in a generic sense, is 
 much more marked and clearly stated. Thus "to 
 arbitrate" is said in that edition, among other 
 definitions, to mean to "give sentence," and "to 
 adjudge." And the word "arbitrator" is defined 
 as meaning "an extraordinary judge." 
 
 In the latter part of the eighteenth century, 
 Samuel Johnson, who surely was a man of letters
 
 possessed of no small knowledge of the meaning of 
 his native English tongue, supports in his Dictionary 
 much more strongly and exactly than his prede- 
 cessor Phillipps the judicial character of arbitration. 
 For example, in the fourth edition of his celebrated 
 Dictionary published in I773, 2 he says: 
 
 "An Arbiter, n. f. (Lat.) 
 
 "i. A judge appointed by the parties, to whose 
 determination they voluntarily submit. 
 
 " 2. One who has the power of decision or regula- 
 tion; a judge. 
 
 "To Arbitrate, v. a. (arbitror, Lat.) 
 
 " i. To decide; to determine. 
 
 "2. To judge of. 
 
 "To Arbitrate, v. n. 
 
 "To give judgment. 
 
 "Arbitration, n. f. (from arbitror, Lat.) 
 
 " The determination of a cause by a judge mutually 
 agreed on by the parties contending. 
 
 "Arbitrator, n. f. (from arbitrate). 
 
 "i. An extraordinary judge between party and 
 party, chosen by their mutual consent. 
 
 " Arbitrement, n. f., (from arbitror, Lat.) 
 
 "i. Decision; determination. 
 
 2 Samuel Johnson, Dictionary of the English Language: fourth 
 edition, revised by the Author, London, 1773.
 
 6 
 
 "2. Compromise." 
 
 Thus Johnson speaks of an arbiter as a "judge." 
 To arbitrate he defines as "to decide" and "to 
 judge of. " "Arbitration" he says is the settling of a 
 question by "a judge mutually agreed on" by the 
 disputants. In the end he defines the word " arbitra- 
 ment" equally as meaning a decision and a compro- 
 mise, two distinctly opposite terms. But excepting 
 this last definition which is one half in favor of sup- 
 porting the idea that the group of words described 
 by the generic term "arbitration" means an adjust- 
 ment of a dispute upon the basis of give and take 
 by the disputants, Johnson strongly supports the 
 view that in his time the word "arbitration" meant 
 the settlement of a controversy by a judge chosen 
 by the parties concerned to decide that one specific 
 case. 
 
 Johnson's support of the judicial meaning of the 
 word arbitration in his time is further attested by 
 his clear definitions of the group of words that may 
 be classified under the generic word mediation. In 
 the edition of 1773, Johnson says: 
 
 "To mediate, v. n. (from medius, Latin.) 
 
 " i. To interpose as an equal friend to both parties; 
 to act indifferently between contending parties; to 
 intercede.
 
 11 2. To be between two. 
 
 "Mediation, n. f. (mediation , French; from 
 medius, Lat.) 
 
 "i. Interposition; intervention; agency between 
 two parties, practised by a common friend. 
 
 "2. Agency interposed ; intervenient power. 
 
 "3. Intercession; entreaty for another. 
 
 "Mediator, n. f. (mediateur, French.) 
 
 " i. One that intervenes between two parties. 
 
 "2. An intercessor; an entreator for another; one 
 who uses his influence in favor of another. 
 
 "3. One of the characters of our blessed Saviour. " 
 
 Thus mediation, according to Johnson's Dic- 
 tionary, clearly means an attempt to have a diffi- 
 culty arranged by the friendly advice of a third 
 party. 
 
 If we turn next to American lexicographers we 
 find that Noah Webster, in the first edition of his 
 well known Dictionary, 3 says : 
 
 "Arbitrate, v., to hear and judge as an arbitrator. 
 
 "Arbitration, n., reference of a controversy to 
 persons chosen by the parties, a hearing before 
 arbitrators, award. 
 
 "Arbitrator, n., a person chosen by a party to 
 
 8 Noah Webster, A Compendious Dictionary of the English Lan- 
 guage, New Haven, 1806.
 
 8 
 
 decide a controversy, one who has the sovereign 
 right to judge and control." 
 
 "Mediate, v., to endeavor to reconcile, to limit. 
 
 "Mediation, n., an interposition, agency, entreaty. 
 
 "Mediator, n., an intercessor, kind adviser, 
 manager. " 
 
 A comparison of the above two groups of words, 
 as defined by Webster makes it clear that in Web- 
 ster's judgment when he published his first dic- 
 tionary in 1806, an arbitrator's function was to 
 judge, while that of a mediator was to adjust a 
 dispute. He does not say one word to suggest that 
 arbitration means a compromise even in a remote 
 degree. 
 
 In the 1841 edition of Webster, a great deal more 
 is said about both groups of words. In speaking of 
 an arbiter or arbitrator and of arbitration, except 
 that twice he says that an arbiter or arbitrator has 
 the power of judging or deciding "without control," 
 Webster still describes an arbiter or arbitrator as a 
 judge chosen for a certain specific case, in other 
 words a judge chosen ad hoc. For to Arbitrate he 
 says, in 1841, means "to decide; to determine; 
 to judge of." Mediation and Mediator and their 
 kindred words, he defines as synonymous with recon- 
 ciliation or adjustment.
 
 While Webster does not support as clearly as some 
 of the earlier English lexicographers do the judicial 
 character of an arbitrator and of arbitration, Worces- 
 ter, the other great American lexicographer, emphat- 
 ically does. In his edition of 1846* Worcester says: 
 
 "Arbiter, n. (L.) One appointed to decide a point 
 in dispute, an arbitrator, a judge. 
 
 "Arbiter, v. a. To judge. 
 
 "Arbitrate, v. a. (i. arbitrated; pp. arbitrating, 
 arbitrated.) To decide; to judge of. 
 
 "Arbitrate, v. n. To give judgment. South. 
 
 "Arbitration, n. Act of Arbitrating. (Law.) 
 The investigation and determination of a cause by 
 an unofficial person, or by persons mutually chosen 
 by the contending parties; arbitrament. 
 
 "Arbitration, Bond. n. (Law.) A solemn obliga- 
 tion to submit to an award. Blackstone. 
 
 "Arbitrator, n. An umpire; a judge. (Law.) 
 A person chosen by parties at variance to determine 
 a matter in dispute. " 
 
 "Mediate, v. n. (medius, L.) (i. mediated; pp. 
 mediating, mediated.) To interpose, as a common 
 friend, between two parties, to intercede; to be 
 between two. 
 
 4 Joseph E. Worcester, Dictionary of the English Language, Boston, 
 1846.
 
 10 
 
 "Mediate, a. (mdiat, Fr.) Intervening; middle; 
 be between two extremes. 
 
 "Mediation, n. (Fr.) The act of mediating; inter- 
 position, intervention, agency interposed; inter- 
 cession. 
 
 "Mediator, n. (mediator, L.; mtdiateur, Fr.) 
 One who mediates; an intercessor; one of the char- 
 acters of our blessed Saviour. " 
 
 In the above definition of those two groups of 
 words, Worcester says of an arbiter that he is "a 
 judge," and to arbitrate is "to decide; to judge of," 
 while an arbitrator he maintains is "a judge." In 
 that group he says nothing of reconciliation or any- 
 thing else that suggests in the remotest degree com- 
 promise. But in the group of words relating to 
 mediation, he does distinctly maintain that they 
 mean reconciliation. A comparison of the two 
 groups of words makes it still more clear that in 
 Worcester's estimation an arbitrator was a judge 
 chosen for the occasion. 
 
 If one turns from these two renowned American 
 lexicographers to the Law Dictionary of John 
 Bouvier, one finds that^jn his second edition of i843, 5 
 he maintains that an arbitrator is a judge. 
 
 5 John Bouvier, A Law Dictionary, second edition, Philadelphia, 
 1843-
 
 II 
 
 Bouvier says : 
 
 "Arbitrator: A private extraordinary judge 
 chosen by the parties who have a matter in 
 dispute, invested with power to decide the same. 
 Arbitrators are so called because they have gen- 
 erally an arbitrary power, there being in common 
 no appeal from their sentences, which are called 
 awards." 
 
 When he defines mediation, however, he says that 
 it means compromise. 
 
 "Mediation, is the act of some mutual friend of 
 two contending parties, who brings them to agree, 
 compromise or settle their disputes. " 
 
 Thus in defining these two words Bouvier 
 sharply defines the difference between them, to wit, 
 that an arbitrator is to judge, while a mediator is 
 to bring about an agreement by means of a com- 
 promise. 
 
 In the edition of 1894 of this same work, 6 there is 
 this definition: 
 
 "Arbitrator. In Practice. A private extraordi- 
 nary judge, to whose decision matters in controversy 
 are referred by consent of the parties." 
 
 In the above definition the judicial character of 
 an arbitrator is distinctly maintained. 
 
 "John Bouvier, A Law Dictionary, Philadelphia, 1894.
 
 12 
 
 In the edition of I9I4, 7 edited by Francis Rawle, 
 we find: 
 
 "Arbiter: A person bound to decide according to 
 the mles of law and equity, as distinguished from an 
 arbitrator, who may proceed wholly at his own dis- 
 cretion, so that it be according to the judgment of a 
 sound man." 
 
 Then the following illuminating statement is im- 
 mediately made : 
 
 "This distinction between arbiters and arbitrators 
 is not observed in modern law." 
 
 Continuing to define the word, arbiter, Bouvier's 
 1914 edition says: 
 
 "One appointed by the Roman praetor to decide 
 by the equity of the case, as distinguished from the 
 judex, who followed the law." 
 
 "One chosen by the parties to decide the dispute; 
 an arbitrator." 
 
 In this l^st edition of Bouvier nothing is said 
 about an arbitrator being a reconciler. 
 
 After this review of some of the leading authori- 
 ties in the meaning of words in English, it is evident 
 that the words arbitrator and arbitration when used 
 
 7 John Bouvier, Law Dictionary and Concise Encyclopedia, third 
 revision, eighth edition, edited by Francis Rawle; Kansas City and 
 St. Paul, 1914.
 
 13 
 
 as terms of Municipal Law in the past meant some- 
 thing different from the boards of arbitration which, 
 constituted to-day under Municipal Law to decide 
 between corporations and their employees, often 
 agree to recognize most of the demands of the latter 
 regardless of any justice or equity applicable to the 
 controversy. So that in the light of the masters 
 of the meaning of English words, it is evident that 
 the words arbitrator and arbitration as often used 
 to-day in practice in our municipal relations have so 
 largely changed their meanings of a half century 
 and more since, that in municipal affairs to-day an 
 arbitrator has in many instances almost entirely 
 lost the judicial character that was designated by 
 the same word in the middle of the last century 
 and before that time. Nevertheless, the meaning 
 attaching often to-day in Municipal Law to the 
 words arbitrator and arbitration does not alter 
 the fact that according to the best English and 
 American lexicographers, those words in the past 
 did mean that an arbitrator was a temporary 
 judge and not a reconciler, and that when an 
 arbitrator was appointed to hear a cause of differ- 
 ence between two parties, he was to decide the case 
 as a judge and not to try to arrange it by a 
 compromise.
 
 All these lexicographers, however, when they de- 
 fined the words arbiter, arbitrator, arbitration and 
 kindred words did not have in mind specifically the 
 Law between Nations. Consequently, to find more 
 authoritively the meaning of those words as terms of 
 the Law between Nations, it will be necessary next 
 to examine what some of the leading publicists have 
 understood by the word arbitration and kindred 
 words when used as terms of International Law. The 
 value of the opinions of well known publicists as to 
 what is the Law between Nations has been attested 
 by eminent judges sitting in the highest courts in 
 the world. Thus Sir William Scott, afterwards Lord 
 Stowell, sitting in 1799 in the High Court of 
 Admiralty of England upon the case of the Maria* 
 relied on the Swiss publicist, Vattel, "not as a lawyer 
 merely delivering an opinion, but as a witness assert- 
 ing the fact the fact that such is the existing 
 practice of modern Europe." And in 1900 in the 
 case of the Paquete Habana, 9 Justice Gray of the 
 United States Supreme Court said of the Law be- 
 tween Nations and treatises on that Law: 
 
 "International Law is part of our Law, and must 
 be ascertained and administered by the courts of 
 
 8 (1799) i Christopher Robinson, pages 340, *&4. 
 
 9 (1900) 175 United States Supreme Court Reports 677, 700.
 
 justice of appropriate jurisdiction, as often as ques- 
 tions of right depending upon it are duly presented 
 for their determination. For this purpose, where 
 there is no treaty, and no controlling executive or 
 legislative act or judicial decisions, resort must be 
 had to the customs and usages of civilized nations; 
 and, as evidence of these, to the works of jurists and 
 commentators, who by years of labor, research and 
 experience, have made themselves peculiarly well 
 acquainted with the subjects of which they treat. 
 Such works are resorted to by judicial tribunals, not 
 for the speculations of their authors concerning what 
 the Law ought to be, but for trustworthy evidence 
 of what the Law really is. " 
 
 Among such publicists and jurists, first let us turn 
 to Baron Puffendorf 's treatise, Of the Law of Nature 
 and Nations, 10 originally published in 1672. In dis- 
 cussing the means other than war of settling the 
 differences that arise, he refers to arbitration, after 
 other modes of settlement have failed, in these words: 
 "The only thing they [the disputants] can do, is to 
 pitch upon an Arbitrator, and each bind himself to 
 stand to his Award." 
 
 Speaking of the qualifications necessary for an 
 
 10 Samuel Puffendorf, Of the Law of Nature and Nations, Oxford 
 1710.
 
 impartial arbitrator, Puffendorf says that no one 
 must be chosen for such a position who has a reason 
 that one side or the other shall win. Then concern- 
 ing the way the arbitrator shall judge, Puffendorf 
 says :" 
 
 "Now altho' the contending Parties enter into 
 Compact with the Arbitrator, about taking upon 
 him his Office, (for as no Arbitrage can be exercised 
 without the Consent of the Parties, so no one can be 
 forced to be Arbitrator against his own Consent;) 
 yet it is not from the Force of that Compact, that he 
 becomes obliged to judge according to what he thinks 
 is agreeable to the Laws of Conscience and Equity: 
 or they to stand to his Award. For the Law of 
 Nature, which can receive no Enforcement from any 
 Compact, obliges him to judge according to Jus- 
 tice; and they are obliged to submit, without any 
 Reserve, to his Determination, because otherwise the 
 Design of going to an Arbitrator would be frustrated, 
 and there would be no End to such Appeals. " 
 
 After discussing the question whether an arbitrator 
 should judge according to the law, or whether he 
 should mitigate its severity, Puffendorf says: 12 
 
 11 S. Puffendorf, Of the Law of Nature and Nations, Oxford, 1710, 
 page 435- 
 
 12 Id., page 436.
 
 "If it be doubtful under which of these two 
 Qualifications the Arbitrator is chosen, he ought to 
 suppose himself tyed up to those Rules, which a 
 Judge would be obliged to follow; for it is for want 
 of a Judge and Judicature that he is called in: And, 
 in a doubtful case, we ought to take that side which 
 is clearest. Besides, an Arbitrator can't so easily 
 act unjustly, if he has a limit, as if he has an absolute 
 Power delegated to him. " Then Puffendorf makes a 
 reference to mediation and the duties of a mediator 
 in these words : "Indeed to persuade a Mitigation of 
 the Rigour of the Law is properly their Business who 
 voluntarily, without entring into any Engagements, 
 interpose, as common Friends, between the contend- 
 ing Parties." 
 
 Then as to the kind of law that judges should use 
 in judging, he says : " Now as he that judges between 
 Fellow-subjects, judges according to the Municipal 
 Laws of that Place ; so he who judges between those 
 who acknowledge no common Municipal Laws, 
 ought to judge according to the Law of Nature; 
 unless the Parties submit their Cause to the positive 
 Laws of some particular State." 
 
 Many times Puffendorf speaks of the "judgment" 
 of an arbitrator. He also says: "This Arbitrators 
 have in Common with Judges, that, in the Examina-
 
 i8 
 
 tion of Matters of Fact, they ought to shew them- 
 selves equal to the bare Asservation of each party, 
 *. e. when they contradict one another, to believe 
 neither. But when Deeds, Arguments and unde- 
 niable Instruments can't be produced, they must 
 then give Judgment according to the Testimony of 
 Witnesses."- 
 
 In the same chapter in which he treats of arbitra- 
 tors and arbitration, Puffendorf also speaks of 
 mediators whom he differentiates clearly from arbi- 
 trators as follows: 
 
 "But Mediators, who interpose between contend- 
 ing Nations, either preparing or actually engaged in 
 War, and endeavour, by their Authority and their 
 Arguments and Intreaties, to bring them to Terms 
 of Accommodation are not properly Arbitrators." 
 
 Thus in Puffendorf's conception, if contending 
 Nations appealed to an arbitrator, that arbitrator 
 was to judge between them, while a mediator was to 
 reconcile them by more or less of a compromise. 
 
 The Swiss, Emerich de Vattel, in the second half 
 of the eighteenth century says: 13 
 
 "The mediator ought to observe an exact impar- 
 tiality; he should soften reproaches, calm resent- 
 
 13 Emerich de Vattel, The Law of Nations, or Principles of the Law 
 of Nature, Dublin, 1787, pages 415-416.
 
 19 
 
 ments, and draw minds towards each other. His 
 duty is to favor what is right, and to cause to be 
 restored what belongs to each; but he ought not 
 scrupulously to insist on rigorous justice. He is a 
 moderator, and not a judge: his business is to pro- 
 cure peace; and to bring him who has right on his 
 side, if it be necessary, to relax something with a 
 view to so great a blessing. * * * When sover- 
 eigns cannot agree about their pretensions, and yet 
 desire to maintain, or to restore peace, they some- 
 times trust the decision of their disputes to arbi- 
 trators chosen by common agreement. As soon as 
 the compromis (agreement) is concluded, the parties 
 ought to submit to the sentence of the arbitrators; 
 they have engaged to do this, and the faith of treaties 
 should be regarded. " 
 
 The German, J. B. Kliiber, writing in the early 
 part of the nineteenth century, says: 14 
 
 "If the person who has been chosen [arbitrator] 
 accepts, he has the right, after a discussion and a 
 sufficient examination of the reasons pro and con, 
 to pronounce the arbitral judgment (laudum) which 
 he believes conforms with the principles of the Law 
 of Nations. " 
 
 14 J. B. Kluber, Droit des Gens Moderne de U Europe: Paris, Sec. 
 318, page 457.
 
 20 
 
 That is what Lord Stowell, for instance, attempted 
 to do in the famous judgments which he gave when 
 he sat in the High Court of Admiralty of England 
 upon prize cases. It was his aim, he said, in the case 
 of the Maria, 15 where Swedish vessels were involved, 
 not to forget that while the seat of his Court was 
 local, the Law between Nations which he was to apply 
 in his Court was world wide in its application and as 
 binding on one Nation as another. Nevertheless, 
 like all municipal judges sitting in prize cases, his 
 judgments in the long run were influenced undoubt- 
 edly in some degree by the needs of his own country 
 to successfully prosecute the war in which she was 
 engaged. 
 
 In our own times, as a result of the additional 
 impetus given to the development of international 
 justice as a means of avoiding war by the success- 
 ful submission of the Alabama Claims for judgment 
 to the Geneva Tribunal, a number of distinguished 
 international publicists representing the best learning 
 of many nations in the Law between Nations, may be 
 mentioned, who have in one way or another expressed 
 their understanding of what is meant by arbitration 
 as a term of International Law. 
 
 Thus the Belgian, Gustave Rolin-Jaequemyns, 
 
 16 (1799) i Christopher Robinson, pages 340, 350.
 
 21 
 
 the originator and one of the founders, in 1873, 
 of the Institut de Droit International, has clearly and 
 forcibly enunciated his opinion on this point. Writ- 
 ing in 1891 in the Revue de Droit International, of 
 which he was one of the three founders as well as 
 editor-in-chief for many years, he discusses the 
 agreement between France and the Netherlands in 
 1888, which those two Nations modified two years 
 later, to submit to the Emperor of Russia as arbi- 
 trator their difference over the frontier line between 
 French and Dutch Guiana. In the convention as 
 amended in 1890 it was provided that the arbitrator 
 "in case he did not reach, after an examination, to 
 designate as a frontier one of the two rivers mentioned 
 in the convention of 1888, he was eventually author- 
 ized, for an intermediary solution, to adopt and 
 decide upon another boundary which would pass 
 through the contested territory." This new agree- 
 ment, whereby the arbitrator was invested with 
 authority, in case he could not decide in favor of the 
 boundary claimed by one or the other of the two 
 Powers, to impose upon the two Nations a com- 
 promise, was criticised severely in the States General 
 of the Netherlands, because upon an arbitration 
 demanding from the judge a decision based upon the 
 evidence and the law, there was grafted a mediation.
 
 22 
 
 After pointing out that two States could, if they 
 wished, graft upon the powers of an international 
 arbitrator acting as a judge those of a mediator, 
 that is of what is known as an aimable compositeur, 
 Rolin-Jaequemyns went on to say: 
 
 "There is an International Law. This Law grows 
 either from conventions, or from general principles 
 accepted by civilized Nations. The essential object 
 of resorting to arbitration between States is, not to 
 create that Law, but to cause to be sought and 
 decided by a temporary judge voluntarily chosen 
 owing to the want of a permanent and obligatory 
 jurisdiction in what manner International Law is 
 applicable to a given case, which is the cause of a 
 disagreement between the parties. The States which 
 accept arbitration recognize by that very thing (and 
 it is that which gives to that procedure so great a 
 value) that their difference is susceptible of being 
 settled by the rules of International Law, either 
 general or conventional. It is to falsify that idea and 
 to compromise its application, to admit beforehand 
 in the agreement (compromis) itself, the eventuality 
 of a solution dictated, not by the Law, but by an 
 arbitrary appreciation of the conveniences of each 
 party." 
 
 In view of the above expressed opinion, especially
 
 23 
 
 the last sentence, it is evident that in the opinion of 
 the founder of the Institut de Droit International, by 
 the terms International Courts of Arbitration and Inter- 
 national Arbitrators, are meant International Courts 
 and International judges chosen to function tempo- 
 rarily so as to pass judgment in the light of the Law 
 between Nations upon some designated case of differ- 
 ence between two or more Nations, just as Municipal 
 Courts and Municipal judges give judgment in the 
 light of Municipal Law upon cases of difference 
 between individual citizens or corporations. There 
 is, however, this difference between these two classes 
 of jurisdiction. International Courts of Arbitration 
 and International Arbitrators are appointed ad hoc 
 to judge particularly designated cases, while Munici- 
 pal Courts and Municipal judges are appointed with 
 a continuing power in the exercise of a compulsive 
 jurisdiction, to judge all cases that may be brought 
 before them. But in both of these classes of juris- 
 diction, in the International as well as in the Munici- 
 pal, the Courts are to decide according to the Law, 
 in the one case according to the Law between 
 Nations, in the other according to Municipal Law. 
 Three years later, Louis Renault, the chief expert 
 adviser upon the Law between Nations to the French 
 Foreign Office, in commenting upon the Bering Sea
 
 24 
 
 Fur Seal case, expressed his conception of the nature 
 of international arbitration. 16 He says: 
 
 "The normal mission of arbitrators, whether they 
 are appointed by Governments or by private in- 
 dividuals, is to decide a difference, to solve a question 
 of Law or fact concerning which the parties are in 
 disagreement. The arbitrators must find, from the 
 documents produced, who is wrong or who is right; 
 they pronounce a veritable judgment. " 
 
 Then commenting on the conclusion made public 
 on January 10, 1831, by the King of the Netherlands 
 as to the Anglo-American boundary which had been 
 referred to him to decide as arbiter, Renault says: 
 
 "It was not truly a sentence; the arbitrator had 
 not fulfilled his mission which was to judge and he 
 had done what was not asked of him; in truth he 
 had assumed the role of a spontaneous mediator, 
 proposing a friendly solution of the difference." 
 
 Next discussing a boundary question between 
 Great Britain and Portugal, in which case the con- 
 tending Nations agreed in case the arbiter, the 
 President of the French Republic, could not decide 
 entirely in favor of the contention of one or the other 
 
 16 Louis Renault, Une nouiielle mission donnee aux arbilres dans 
 les litiges internationaux a propos de V Arbitrage de Behring: Revue 
 Generale de Droit International Public. Paris, 1894, pages 44-51.
 
 25 
 
 Nation, that he should have the right then "to give 
 such decision which, in his view, would offer an 
 equitable solution of the difficulty," Renault, after 
 remarking that this was not a strict case of mediation, 
 since the sentence of the arbiter was to be accepted 
 by both parties, whatever it might be, 17 went on to 
 say: 18 
 
 "Thus the two States, foreseeing that their differ- 
 ence perhaps could not be settled by a juridical 
 decision, and wishing nevertheless to settle it, gave 
 to the arbiter a special power which went beyond 
 the ordinary limits of the competence of a judge." 
 
 Then again, after discussing the Bering Sea case 
 and the powers granted by the two litigant Nations 
 to the International Court of Arbitration which sat 
 in 1893 at Paris in judgment on that case, Renault 
 says: 19 
 
 "Two persons may have every reason to come to 
 an agreement to form a partnership for example, 
 or to make an exchange; if they do not do so, they 
 merely make use of their natural liberty, and one 
 cannot say that there is litigation between them. 
 
 17 Protocol of September 25, 1872; de Clercq, Recueil des traites 
 de la France, V., XL, page 39. 
 
 18 Revue Generate de Droit International Public, Paris, 1894, page 45. 
 
 19 Id., page 50.
 
 26 
 
 In case, however, that they should be anxious to 
 come to an understanding and should appoint a 
 third party to define the conditions which would 
 seem to him equitable for an arrangement, it would 
 be wrong to call that third party an arbitrator, 
 since his mission is in no manner that of a judge." 
 And then in a foot-note to the passage just cited, 
 the learned French publicist further says: "I know 
 perfectly that arbitration in industrial affairs is 
 understood in this sense, but it is so used in an inexact 
 way." 
 
 These extracts from Renault make it clear that 
 he considered, at the time he wrote, that an inter- 
 national arbitrator is a judge and not a reconciler. 
 
 In a letter printed in the London Times, January 6, 
 1896, proposing a peaceful solution of the Anglo- 
 Venezuelan crisis, John Westlake, then holder of the 
 Whewell chair of International Law in Cambridge 
 University, wrote: 
 
 "It is that of arbitration, with a restriction 
 presently to be mentioned, combined with mediation. 
 An arbitrator can only pronounce a judgment; he 
 cannot make a recommendation as a mediator can. 
 When England and the United States referred the 
 boundary between Canada and Maine to the arbitra- 
 tion of the King of the Netherlands, that Sovereign
 
 27 
 
 did not adjudicate on the respective lines proposed 
 by the parties, but proposed an intermediate one as 
 a compromise, which the United States were not 
 bound to accept and did not accept. Now in the 
 present case it is more than probable that an arbi- 
 trator would find legal grounds enough for ruling 
 out the maximum claims on both sides, even if he 
 were not prevented from entertaining them by the 
 restriction presently to be suggested. But it is also 
 probable that for some part of the intermediate 
 region he might be unable to find any legal grounds 
 of decision, and that all he could do would be to 
 propose a line of his own. Then, if the parties had 
 from the beginning accepted him in the character 
 of mediator as well as in that of arbitrator, they would 
 not indeed be bound to accept a line which he did 
 not declare to be one of legal obligation, but his 
 proposal, made as it would be after hearing all that 
 could be said on that branch of the subject, would 
 carry such weight that no party desirous of peace 
 would refuse to accept it." 
 
 Westlake, in his treatise International Law, in 
 contrasting arbitration with mediation, says of the 
 former of these two functions: 20 "The essential 
 
 20 John Westlake, International Law, London (snd ed.), Part i, 
 page 354.
 
 28 
 
 point is that the arbitrators are required to decide 
 the difference that is, to pronounce sentence on 
 the question of right. To propose a compromise, 
 or to recommend what they think best to be done, 
 in the sense in which best is distinguished from most 
 just, is not within their province, but is the province 
 of a mediator. " 
 
 Earlier in the same work, in commenting on the 
 general division between the differences that arise 
 between Nations which seem capable of being decided 
 by International Courts upon legal grounds and 
 those which because of the great political interests 
 involved for the Nations concerned, apparently can- 
 not be so settled, Westlake also says: 21 "That dis- 
 tinction is not eo nomine one of old standing in the 
 theoretical treatment of international law. It has 
 been brought into prominence under the nomencla- 
 ture of legal or juridical and political by the dis- 
 cussions and negotiations on arbitration, which is 
 essentially a juridical proceeding. 1 ' 22 
 
 From the three above quoted passages it is very 
 evident that Westlake considered that International 
 Courts of Arbitration have not the right to arrange 
 the cases which they are called on to decide by a 
 
 21 J. Westlake, International Law, London, 2nd ed., Part I., page 305. 
 
 22 The italics have been added by the present writer.
 
 29 
 
 compromise arrangement, that attribute being the 
 proper function of mediation. On the contrary, 
 judging from the above quoted extracts, Westlake 
 evidently considered that international arbitrators 
 and International Courts of Arbitration in passing 
 upon differences between Nations were to decide 
 upon legal grounds. 
 
 The delegates of Russia, among them Fedor de 
 Martens, to the First Hague Peace Conference in 
 1899 addressed to the representatives of the other 
 twenty-five Powers who took part in that gathering 
 of the Nations, memoranda in which the merits of 
 and the distinction between mediation and arbitra- 
 tion were discussed. 23 In the first memorandum, the 
 Russians pointed out that the difference between 
 good offices and mediation was more theoretical 
 than real, and also that "mediation does not impugn 
 in any way the principle of the sovereignty, liberty 
 and independence" of states. In a second memo- 
 randum, the Russian delegates noticed the difference 
 between voluntary and obligatory arbitration, and 
 pointed out that " it is difficult to conceive of a differ- 
 
 23 Blue Book: C. 9534 miscellaneous, No. i (1899). Correspondence 
 respecting the Peace Conference held at The Hague in 1899. Pre- 
 sented to both Houses of Parliament by Command of Her Majesty, 
 Oct., 1899, pages 39-45.
 
 30 
 
 ence of a legal nature, arising within the scope of 
 positive International Law which could not as a result 
 of an agreement between the parties, be solved by 
 means of optional International Arbitration." Con- 
 cerning compulsory arbitration, the Russian report 
 pointed out very wisely that it cannot be applied to 
 every kind of disputes. "There is no government," 
 it says, "which would consent to accept beforehand 
 the obligation to submit to the decision of the 
 Tribunal of Arbitration every difference which might 
 arise in the domain of international relations if it 
 affected the national honor of the State, its highest 
 interests and its imprescriptible wealth. Actually, 
 the reciprocal rights and obligations of States are 
 determined, in a notable measure, by the general 
 consensus of what are called political treaties, which 
 are nothing else than the temporary expression of 
 fortuitous and transitory relations between the dif- 
 ferent national forces. These treaties bind the free- 
 dom of action of the parties so long as the political 
 conditions which produced them remain without 
 change. When these conditions change, the rights 
 and obligations resulting from these treaties neces- 
 sarily change also. As a general proposition, the 
 conflicts which arise over political treaties turn in 
 most cases, not so much on a difference in the inter-
 
 pretation of such and such a rule, as on the change 
 to be made in the provisions of the treaty or its 
 complete abrogation. Consequently the powers 
 which take an active part in the political life of 
 Europe, cannot submit the differences which arise 
 out of the political treaties to a Court of Arbitration, 
 in the eyes of which what is laid down by treaty would 
 be as binding and inviolable as what is laid down by 
 the positive law is in the eyes of a national Court of 
 Justice.'" 24 ' 
 
 Thus in the report presented by the Russian 
 delegates to the representatives of the other nations 
 who were parties to the First Hague Conference, 
 it is distinctly affirmed that an International Court 
 of Arbitration, like "a national Court of Justice, " is, 
 in giving its judgment, bound by the Law, in the 
 one case by the Law between Nations, in the other 
 by the Municipal Law of the country where the 
 National Court has its seat. 
 
 Last but not least, the learned American jurist, 
 John Bassett Moore, speaking of mediation and 
 arbitration, says: 25 "These methods are often dis- 
 cussed as if they were practically the same, but in 
 
 24 The italics have been added by the present writer. 
 26 John Bassett Moore, International Law Digest, Washington, 
 1906, Volume VII., page 25.
 
 32 
 
 reality they are fundamentally different. Mediation 
 is an advisory, arbitration a judicial, function. 
 Mediation recommends, arbitration decides. While 
 nations might for this reason accept mediation in 
 various cases in which they might be unwilling or 
 reluctant to arbitrate, it is also true that they have 
 often settled by arbitration questions which media- 
 tion could not have adjusted. 
 
 "It is, for example, hardly conceivable that the 
 question of the Alabama Claims could have been 
 settled by mediation. The same thing may be said 
 of many and indeed of most of the great number of 
 boundary disputes that have been settled by arbitra- 
 tion. The importance of mediation as a form of 
 amicable negotiation should not be minimized. 
 * * * Nevertheless, mediation is merely a diplo- 
 matic function and offers nothing new. 
 
 "Arbitration, on the contrary, represents a prin- 
 ciple as yet only occasionally acted upon, namely, 
 the application of law and of judicial methods to the 
 determination of disputes between nations. Its 
 object is to displace war between nations as a means 
 of obtaining national redress, by the judgments of 
 international judicial tribunals?* just as private war 
 between individuals, as a means of obtaining personal 
 
 26 
 
 The italics have been added by the present writer.
 
 33 
 
 redress, has, in consequence of the development of 
 law and order in civilized states, been supplanted by 
 the processes of municipal courts. 27 In discussing the 
 subject of arbitration, we are therefore to exclude 
 from consideration, except as a means to that end, 
 mediation, good offices, or other forms of nego- 
 tiation." 
 
 It is quite evident from the foregoing review of 
 some of the leading dictionaries as well as the writ- 
 ings of some of the leading publicists, that the word 
 arbitration in Municipal affairs has very much 
 changed its meaning and departed from the use of 
 the word as a term of International Law. And in 
 this connection it will be useful to notice how the 
 meaning of another word has changed as the years 
 have rolled by. 
 
 Thus the word State as used in the North American 
 Confederation between 1781 and 1789, and since the 
 adoption of the Constitution, has changed its mean- 
 ing. As applied to the original thirteen States of the 
 Confederation before 1789, the word State meant a 
 member of the family of Nations, a sovereign State, 
 for originally the thirteen States constituted a 
 Confederation composed of thirteen member States. 
 To-day, however, the word State as applied to the 
 
 27 The italics have been added by the present writer.
 
 34 
 
 forty-eight members of the Federal Union does not 
 mean the same thing that it did in the times of the 
 Confederation. For neither Pennsylvania, nor New 
 York nor any other of the forty-eight States compos- 
 ing the United States of America to-day is a member 
 of the family of Nations, as France is a State and a 
 member of the family of Nations. These forty-eight 
 States together form not forty-eight Nations, but 
 only one single Nation. But the change in the 
 meaning of the word State in the historic develop- 
 ment and evolution by which the original Confedera- 
 tion of thirteen States became the one Nation of 
 to-day known as the United States of America, does 
 not alter the historic fact, that originally as applied 
 to the thirteen States the word State meant thirteen 
 separate and distinct members of the family of 
 Nations, while to-day the same word means the 
 various units of the North American Union, that is, 
 the component parts of but one single member of 
 the family of Nations. 
 
 II. 
 
 It has been urged of late, that an International 
 Arbitrator is not bound by the Law, as a Judge, 
 sitting in a regularly constituted Court, is bound by
 
 35 
 
 the Law. In other words, that an International 
 Arbitrator can exercise, in reaching his opinion in the 
 case submitted to him for a settlement, his own ideas 
 of what would be a just judgment, and so is likely 
 to try to settle the case by a compromise 28 which 
 will please in part both sides to the dispute; while 
 on the contrary, a Judge, sitting in his Court, can- 
 not allow his own personal feelings of justice to in- 
 fluence his judgment, but must rigorously base his 
 opinion upon the Law applicable to the case before 
 him. As a result of the above reasoning, it is main- 
 tained by some writers and practitioners that an 
 International Arbitrator tends to become a reconciler, 
 that is, a mediator, a compositeur aimable, in con- 
 trast with the Municipal Judge, who always gives 
 a judicial opinion based on legal reasoning. 
 
 That the Judges of Municipal Courts, even the 
 most learned and distinguished who have sat in the 
 highest Tribunals in the world, never allow either 
 their own ideas or consciences to influence them in 
 arriving at their opinions as to what most closely is 
 justice in each particular case, is, however, an 
 
 28 It is well to remember that the French word compromis does 
 not mean compromise but agreement. Compromis is often wrongly 
 translated into English by those who do not know better by the 
 word compromise instead of by the word agreement.
 
 36 
 
 absurdity of statement, which even a cursory exami- 
 nation of the cases disproves. 
 
 Take, for example, the rise and development of the 
 rule of the Law between Nations that the jurisdiction 
 of the Courts of Nations with a maritime front on 
 the open sea extends to the distance of one marine 
 league, or three miles, from low water. It was during 
 an embassy sent by the United Netherlands to the 
 English King James the First, in 1610, that the idea 
 of limiting the exclusive sovereignty of a maritime 
 State to the distance of a cannon shot from its shore 
 was first publicly put forward. This development 
 was an incident in the long drawn out battle between 
 the English and the Hollanders over the right to 
 fish, which the latter claimed to exercise, and did 
 exercise, in the sea between England and the con- 
 tinent. "No prince," the Dutch envoys told the 
 English representatives, "can Challenge further into 
 the Sea than he can Command with a Cannon, 
 except Gulfes within their Land from one point to 
 another. " 29 While the idea of placing a limit on the 
 exclusive seaward jurisdiction of a State doubtless 
 had occurred before, it seems then for the first time 
 to have taken concrete form in the cannon shot limit. 
 
 29 Thomas Wemyes Fulton, The Sovereignty of the Sea, Edinburgh , 
 1911, page 156.
 
 37 
 
 Perhaps it originated in the fertile brain of Grotius, 
 though he was not a member of the embassy. For 
 in a work he wrote in 1618, which was published at 
 Paris in 1640, Grotius refers to this principle of the 
 cannon shot having been urged on the English. 30 
 Later the idea that a reasonable limit should be 
 placed upon the power of a maritime State to con- 
 trol the sea coast adjoining its coast line was advo- 
 cated by another Dutch publicist, hardly less 
 renowned than Grotius, Cornelius van Bynkershoek. 
 Then the idea was slowly taken up with favor, with 
 varying distances, by various jurists, both publicists 
 and judges. The three mile limit, as the equivalent 
 of the cannon shot from shore, was first advanced 
 by a Government, apparently, in a note which 
 Thomas Jefferson, the Secretary of State of the 
 United States of America, wrote on November 8, 
 I 793> to M. Genet, the French envoy. 31 The three 
 mile limit next received a great impetus from the 
 decisions of Sir William Scott, later Lord Stowell, 
 sitting in the High Court of Admiralty of England. 
 
 30 Apologeticus eorum qui Hottandiae Westfrisiaeque et vicinis 
 quibusdam nationibus ex legibus praefuerunt ante mutationem quae 
 evenit anno 1618. Scriptus ab Hugone Grotio, I. C.; Paris, 1640, 
 page 383. 
 
 31 American State Papers: Foreign Relations, Washington, 1832, 
 Volume L, page 183.
 
 38 
 
 By his judgments in the two cases of the Twee 
 Gebroeders 32 and the case of the Anna, 33 he gave the 
 judicial sanction of the greatest maritime power 
 of the world to the three mile limit of the territorial 
 sea, and introduced that limit into English Law. 
 In the first Twee Gebroeders case, that vessel was 
 taken on August 14, 1799, on a voyage from Emden 
 to Amsterdam, which latter place was under 
 blockade. She was captured on the Groningen Wat, 
 near the coast of East Friesland. The Prussian 
 Government suggested that the vessel was captured 
 within the protection of Prussian territory. In con- 
 sidering the extent of the Prussian jurisdiction over 
 the sea adjoining its coast, Sir William Scott said, 
 in i8oo: 34 
 
 "She was lying in the Eastern branch of the Eems, 
 within what may I think be considered as a distance 
 of three miles, at most, from East Frieslands; an 
 exact measurement cannot easily be obtained; but 
 in a case of this nature, in which the Court would 
 not willingly act with an unfavorable minuteness 
 
 32 Twee Gebroeders, Alberts master (1800) 3 Christopher Robinson, 
 page 162, and Twee Gebroeders, Northolt master (1801) id., page 336. 
 
 33 The Anna (1805) 5 Christopher Robinson 373. 
 
 34 Twee Gebroeders, Alberts master (1800) 3 Christopher Robinson 
 162, at page 163.
 
 39 
 
 towards a neutral State, it will be disposed to cal- 
 culate the distance very liberally; and more espec- 
 ially, as the spot in question is a sand covered with 
 water only on the flow of the tide, but immediately 
 connected with the land of East Friesland, and 
 when dry, may be considered as making part of it. 
 I am of opinion, that the ship was lying within 
 those limits, in which all direct hostile operations 
 are by the Law of Nations forbidden to be exer- 
 cised. " 
 
 The second Twee Gebroeders case, decided in 1801, 
 arose on the capture of a number of vessels bound 
 from Hamburg to Amsterdam, which latter port 
 was under blockade. In the decision, Sir William 
 Scott held : 35 "In the sea, out of the reach of cannon 
 shot, universal use is presumed." 
 
 In the case of the Anna, captured at the mouth of 
 the Mississippi River, and decided in 1805, when 
 the same learned authority held that the territorial 
 sea should be measured, not from the mainland, but 
 from some low lying islands or mudbanks at the 
 mouth of the river, Sir William Scott cited one of the 
 famous maxims of Bynkershoek and translated it 
 into three miles from the shore. He said: 36 
 
 35 3 Christopher Robinson 336, at page 339. 
 
 36 5 Christopher Robinson 373, at page 3850.
 
 40 
 
 "We all know that the rule of law on this subject 
 is ' terrae dominium finitur , ubi finitur armorum vis, ' 
 and since the introduction of fire-arms, that distance 
 has usually been recognized to be about three miles 
 from the shore." 
 
 When Sir William Scott gave those decisions there 
 was no fixed and hard rule of the Law between Nations 
 that obliged him to decide as he did. On the contrary, 
 he exercised his own ideas, arriving at his decisions 
 of what would be most just in these cases. In giving 
 these three judgments he was not governed by a rule 
 of the Law between Nations recognized by all Nations, 
 but, on the contrary, he gave the English interpreta- 
 tion on that point, and so helped to develop the Law 
 between Nations. The three mile limit came to be 
 recognized in the larger part of the world more and 
 more as the extent of the territorial sea. There were 
 exceptions to it a century ago, as there are excep- 
 tions to it to-day. But by the year 1876 it had gained 
 the support of the great majority of publicists, and 
 the support of many governments through the acts 
 of their officials in one way or another, including that 
 of England as expressed in the judgments of Lord 
 Stowell in her High Court of Admiralty. Then in 
 the year 1876 occurred the case of the Queen v. Keyn, 
 better known as the case of the Franconia. That case
 
 turned on whether the jurisdiction of the English 
 Courts extended over the territorial sea. Briefly, 
 that case was as follows: The Franconia, a German 
 vessel bound from Hamburg to St. Thomas, sank, 
 less than three miles from the British coast, near 
 Dover, the Strathclyde, a British vessel, killing as a 
 result a woman, a British subject, who was on board 
 of the British vessel. The crucial question in the 
 case when it came up on appeal from the Central 
 Criminal Court, was whether that Court had juris- 
 diction to try Keyn, a foreigner, who was the captain 
 of the Franconia. By a majority of one, seven judges 
 against six, the Court of Exchequer Division 
 reversed the lower court, and held that the prisoner, 
 a foreigner on a foreign ship within the marine belt, 
 was not amenable to the Law of England, but only 
 to that of his own country. The minority judges 
 practically agreed that as shown by the custom 
 and usages of Nations and proclaimed by the writ- 
 ings of the publicists the rule of the Law between 
 Nations, by which the sovereignty of Nations having 
 a sea coast was extended seaward over the marine 
 belt known as territorial waters, had extended the 
 sovereignty of England over the territorial sea 
 adjoining her coast, and so had placed the marine 
 belt under the jurisdiction of her Courts. That view
 
 42 
 
 was well stated by Chief Justice Coleridge, who said 
 in part: 37 
 
 "Now my brothers Brett and Lindley have shown 
 that by a consensus of writers, without one single 
 authority to the contrary, some portion of the coast 
 waters of a country is considered for some purposes 
 to belong to the country the coasts of which they 
 wash. I concur in thinking that the discrepancies 
 to be found in these writers as to the precise extent 
 of the coast waters which belong to a country 
 (discrepancies, after all, not serious since the time 
 at least of Grotius) are not material in this question; 
 because they all agree in the principle that the waters, 
 to some point beyond low-water mark, belong to the 
 respective countries, on grounds of sense if not of 
 necessity, belong to them as territory or sovereignty, 
 in property, exclusively, so that the authority of 
 France or Spain, of Holland or England, is the only 
 authority recognized over the coast waters which 
 adjoin these countries. This is established as solidly 
 as, by the nature of the case, any proposition of inter- 
 national law can be. * * * The law of nations 
 is that collection of usages which civilized states have 
 agreed to observe in their dealings with one another. 
 
 37 The Queen v. Keyn (1876) Law Reports, 2 Exchequer Division 63, 
 at page 153.
 
 43 
 
 What these usages are, whether a particular one has 
 or has not been agreed to, must be matter of evidence. 
 Treaties and acts of state are but evidence of the 
 agreement of nations, and do not in this country 
 at least per se bind the tribunals. Neither, certainly, 
 does a consensus of jurists; but it is evidence of the 
 agreement of nations on international points; and 
 on such points, when they arise, the English Courts 
 give effect, as part of English Law, to such agree- 
 ment." 
 
 The majority judges, however, reversed the lower 
 Court, and held that a rule of the Law between 
 Nations, no matter how many learned jurists agreed 
 in proclaiming it a rule of that Law, nor no matter 
 how many other Nations might agree among them- 
 selves that such a rule was a part of the Law 
 between Nations, was not binding upon British 
 Courts until the British Parliament had enacted it 
 as a rule of Law. While the majority of judges 
 were not altogether unanimous, most of them 
 agreed with the view expressed by Lord Chief 
 Justice Cockburn, that the extent of the realm of 
 England is a question of English and not Inter- 
 national Law. 
 
 Lord Chief Justice Cockburn said : 38 
 
 38 The Queen v. Keyn (1876) Law Reports, 2 Exchequer Division 63, 
 at page 202.
 
 44 
 
 "Can a portion of that which was before high sea 
 have been converted into British territory without 
 any action on the part of the British Government 
 or legislature by the mere assertions of writers 
 on public law or even by the assent of other 
 nations? 
 
 "And when in support of this position, or of the 
 theory of the three mile zone in general, the state- 
 ments of the writers on international law are relied 
 on, the question may well be asked, upon what 
 authority are these statements founded? When and 
 in what manner have the nations, who are to be 
 affected by such a rule as these writers, following one 
 another, have laid down, signified their assent to it? 
 To say nothing of the difficulty which might be found 
 in saying to which of these conflicting opinions such 
 assent had been given." 
 
 Further on in his opinion Lord Cockburn said that 
 writers on the Law between Nations, "however 
 valuable their labours may be in elucidating and 
 ascertaining the principles and rules of Law, cannot 
 make the Law." Even the unanimous assent of 
 the Nations that the three mile zone of so called 
 territorial waters around Great Britain was under 
 British jurisdiction, he maintained, would not jus- 
 tify British Tribunals in recognizing, "without an
 
 45 
 
 Act of Parliament, what would practically amount 
 to a new law." 
 
 Thus thirteen British judges sitting together 
 on a case, after weighing the facts, the opinions of 
 jurists and publicists and the acts of other Nations, 
 were unable to agree and divided almost equally 
 upon the question whether a rule of the Law 
 between Nations could become grafted upon the 
 Law of England through the long continued cus- 
 toms and acts of many Nations as evinced by 
 treaties and other diplomatic acts, and the writ- 
 ings of the publicists; or whether it required an 
 Act of Parliament to make a rule of the Law 
 between Nations binding on British Courts. The 
 decision destroyed the marine belt so far as the 
 jurisdiction of British Tribunals was concerned, 
 and the Law as proclaimed by the decision of 
 the Court had to be changed to meet the require- 
 ments of the future obligations of Great Britain 
 as a member of the family of Nations, by the 
 Territorial Waters Jurisdiction Act of 1878. Thus 
 in that important case thirteen judges, when 
 called upon to pass upon a case for which no exact 
 precedent could be found among English decisions, 
 had to use, each individually, in making up their 
 minds as to whether the jurisdiction of British
 
 4 6 
 
 Courts extended over the marine belt of International 
 Law, their own best judgments. As a result, far 
 from agreeing, they divided into two almost evenly 
 balanced groups, and neither of these two groups 
 was altogether unanimous in the processes by which 
 they arrived at their conclusions. This is a splendid 
 example showing how judges on the Bench not only 
 do exercise their own individual ideas in arriving at 
 their opinions, but also on many occasions are 
 absolutely forced by the exigencies of the case before 
 them to call upon and sometimes even to rely upon 
 their own consciences in deciding what will be a just 
 decision. 
 
 Take another case, one that was appealed to and 
 heard by the most notable Municipal Tribunal in 
 the world, the Supreme Court of the United States, 
 the case known under the name of the Paquete 
 Habana. 39 
 
 At the beginning of the war in 1898 between the 
 United States and Spain, two Spanish fishing vessels, 
 the Paquete Habana and the Lola, were taken by 
 the American blockading squadron off the coast of 
 Cuba and condemned by a Federal District Court as 
 prizes of war. The case was appealed to the Federal 
 Supreme Court. The nine members of that Court 
 
 39 (1900) 175 United States Supreme Court Reports 677.
 
 47 
 
 divided into two groups, of six to three. The 
 majority, Mr. Justice Gray delivering the opinion 
 of the Court, held, after a careful and exhaustive 
 review of the works of the publicists and the decisions 
 of the Supreme Court and other Tribunals, that 
 through custom a rule of International Law had 
 grown up exempting from capture in times of war 
 the fishing vessels of belligerents who were merely 
 pursuing their calling. The exemption does not 
 hold good, Justice Gray said, if the fishing vessels 
 engage in hostilities in any way, nor does it apply to 
 fish taken in the deep sea so far from land that the 
 fish cannot be brought to market fresh, but must be 
 salted or otherwise cured. President McKinley, 
 in his proclamation of April 26, 1898, made no 
 specific mention of fishing vessels. "But the proc- 
 lamation clearly manifests," Justice Gray says, 40 
 "the general policy of the Government to conduct 
 the war in accordance with the principles of inter- 
 national law sanctioned by the recent practice of 
 nations." 
 
 Chief Justice Fuller, Justices Harlan and McKenna 
 concurring with him, gave the dissenting opinion of 
 the minority of three judges. He did not agree that 
 there was any such established rule of the Law 
 
 40 
 
 175 United States Supreme Court Reports, page 712.
 
 4 8 
 
 between Nations. In his opinion, after referring 
 to the decision of the District Court condemning 
 the two vessels and their cargoes, because the 
 lower Court was not, as he quoted the opinion of 
 the lower Court, 41 "satisfied that as a matter of 
 law, without any ordinance, treaty or proclamation, 
 fishing vessels of this class are exempt from seizure," 
 the Chief Justice went on to say: 42 
 
 "This Court holds otherwise, not because such 
 exemption is to be found in any treaty, legislation, 
 proclamation or instruction, granting it, but on the 
 ground that the vessels were exempt by reason of an 
 established rule of international law applicable to 
 them, which it is the duty of the Court to enforce. 
 
 "I am unable to conclude that there is any such 
 established international rule." 
 
 There, speaking for the minority of the Tribunal, 
 the Chief Justice absolutely disagreed with the judg- 
 ment of the Court given by Justice Gray. 
 
 Then further in his dissenting opinion, the Chief 
 Justice said: 43 
 
 "In truth, the exemption of fishing craft is essen- 
 
 41 175 United States Supreme Court Reports, page 715. 
 
 42 Ibid, page 715. 
 
 43 Ibid, page 719.
 
 49 
 
 tially an act of grace, and not a matter of right, and 
 it is extended or denied as the exigency is believed 
 to demand. 
 
 "It is," said Sir William Scott, '"a rule of comity 
 only, and not of legal decision. ' ' 
 
 After citing Hall, Freeman Snow, and other 
 authorities, the Chief Justice continued i 44 
 
 "In my judgment, the rule is that the exemption 
 from the rigors of war is in the control of the execu- 
 tive. He is bound by no immutable rule on the sub- 
 ject. It is for him to apply, or to modify, or to deny 
 altogether such immunity as may have been usually 
 extended." 
 
 In this case, the Court had to decide whether 
 there had grown up by custom through centuries of 
 practice a rule of the Law between Nations exempt- 
 ing fishing vessels when peacefully engaged in their 
 calling from capture as prizes of war, or whether 
 there had merely developed a rule of courtesy among 
 Nations, enabling the executive of each Power to 
 exempt from capture the fishing vessels of an enemy 
 country. And the members of that august Tribunal 
 were not agreed in their conclusion, the majority 
 deciding that there had grown up through long con- 
 tinued custom and usage such a rule of International 
 
 44 175 United States Supreme Court Reports, page 720.
 
 50 
 
 Law, while the minority just as firmly held that 
 there had not. 
 
 To take the practice of a Municipal Court as an 
 example, let us look at a notable Pennsylvania 
 case. The Pennsylvania Supreme Court reversed 
 its own earlier judgments in the case of Sanderson v. 
 The Pennsylvania Coal Company concerning the flow 
 of water in the anthracite coal districts of Penn- 
 sylvania. 45 Why? Because, owing to the develop- 
 ment of coal as a factor in the modern commercial 
 world, there was a difference of opinion from the 
 first among the judges composing the Court as to 
 how the case should be decided. It was a case for 
 damages caused by the water pumped out of a mine 
 that flowed into a stream which was thereby polluted. 
 The case was argued four times before the Supreme 
 Court of the State of Pennsylvania. Not a single 
 judge changed his opinion, but gradually as the 
 personnel of the Tribunal changed, the Court 
 changed its view, and so reversed itself. The final 
 decision of the Court was practically based on the 
 
 45 Sanderson v. The Pennsylvania Coal Co. (1878) 86 Pennsylvania 
 Supreme Court 401; Pennsylvania Coal Co. v. Sanderson (1880) 
 94 Pennsylvania Supreme Court 302; Sanderson v. Pennsylvania 
 Coal Co. (1883) 102 Pennsylvania Supreme Court 370; The Penn- 
 sylvania Coal Co. v. Sanderson (1886) 113 Pennsylvania Supreme 
 Court 126.
 
 kernel of the dissenting opinion of Justice Paxson, 
 the first time the case came before the Court, when 
 he said: "The plaintiffs knew when they purchased 
 their property that they were in a mining region." 
 
 Thus in that important case which was taken four 
 times for decision to the highest Tribunal of the 
 State, the members of the Court from the start were 
 unable to arrive at a unanimous decision. They per- 
 sistently disagreed, some deciding for one party to 
 the case, and others for the other contestant. 
 
 In addition, in considering the latitude allowed to 
 judges in exercising their own individual ideas and 
 conceptions of what would constitute justice in any 
 given case, it is well to remember that the English 
 Common Law, owing in many instances to the 
 rigidity of its rules and the inability in earlier times 
 to change and amend it, caused the rise of Equity and 
 the Court of Equity, which could afford relief in 
 cases where the Common Law could not. And 
 to-day in many jurisdictions the two systems of 
 jurisprudence have been consolidated, the Courts in 
 some jurisdictions sometimes sitting as Courts of the 
 Common Law, sometimes as Courts of Equity, while 
 in other jurisdictions, as for example in Pennsylvania, 
 the Courts sit as Tribunals which concurrently 
 administer both the Common Law and the Law of
 
 52 
 
 Equity in arriving at their decisions. Thus when 
 the judges of the Common Law Courts were so bound 
 by the Law that they could not in many cases exer- 
 cise their personal common sense and conscience, 
 relief for such a situation was sought by combining, 
 in varying decrees in different jurisdictions, with 
 their functions as Common Law judges the powers 
 of chancellors of Equity, and so allowing to the 
 judges greater flexibility in arriving at their decisions 
 than could have been possible had they remained 
 strictly Common Law judges. 
 
 Further, it must be remembered that the judges of 
 Municipal Courts who have acted as judges in Prize 
 Courts, in their interpretation of the Law between 
 Nations have leaned undoubtedly towards the view 
 that favored in the long run their own country. For 
 instance, take the judgments of Lord Stowell, when 
 he was in great measure forming the Law of the 
 Sea, can anyone doubt that in rendering his judg- 
 ments he was influenced in some degree by the 
 interests of England as a belligerent? So, too, the 
 Supreme Court of the United States during the 
 Civil War, in the matter of continuous voyages, 
 undoubtedly leaned towards the point of view that 
 favored the Union cause. And so also with the 
 Tribunals of other Nations. For after all, judges,
 
 53 
 
 even the most conscientious of them all, are human 
 beings. Such personal views are easier of application 
 in the earlier and formative period of the Law, 
 whether Municipal or International, than when the 
 Law has reached a highly developed stage. Never- 
 theless, even when the Law is highly developed, the 
 personal feelings and ideas of each judge as to what 
 constitutes justice in each case counts for something, 
 more or less according to the character of the indi- 
 vidual judge and the circumstances of each case. 
 
 From the three cases of the Queen v. Keyn, the 
 Paquete Habana and Sanderson v. The Pennsylvania 
 Coal Company, that have been reviewed above, it is 
 evident that Municipal judges, sitting together in 
 the same Municipal Courts, frequently do not agree 
 as to the proper judgments to be rendered in the 
 cases submitted to them for decision. It may be 
 urged, however, in all cases where the judges of a 
 Municipal Tribunal disagree as to their judgments 
 upon a case before them, that they all of them have 
 given a decision in favor of one side or the other, 
 and that they do not agree upon a compromise with 
 the view of giving something to each contestant to a 
 case so as to reconcile both parties to the judgment of 
 the Court. In other words, that in those cases where 
 the judges of Municipal Courts fail to agree in their
 
 opinions as to the case before them, they disagree 
 upon legal grounds, and each judge or group of judges 
 in giving a decision favorable to one side or the other, 
 does not seek to find in his or their judgment a happy 
 medium pleasing to both sides of the case argued at 
 the bar. 
 
 Cases, however, have been tried in Municipal 
 Tribunals when the judges of such Courts, just as 
 much as the members of some International Courts 
 of Arbitration, have sought to settle cases before 
 them upon the basis of a compromise between the 
 contestants rather than by handing down a decision 
 founded upon pure legal reasoning which is clearly 
 cut in favor of one side or the other. 
 
 During the great American Civil War of 1861-1865, 
 the Supreme Court of the United States had many 
 cases brought to its bar involving the principle of 
 continuous voyages. One of these was the case of 
 the Bermuda* 6 That vessel, before her capture, 
 had made a voyage bound ostensibly from London 
 to Bermuda. Eventually she ran the blockade, 
 maintained by the United States of the Confederate 
 coast, to Savannah. On that voyage she had a 
 cargo that would have been of great value in any of 
 the Confederate ports. She returned successfully 
 
 46 (1865) 3 Wallace, United States Supreme Court Reports, page 514.
 
 55 
 
 to England. On her first outward voyage from 
 England, while Haigh, a British subject, was her 
 apparent owner, he had given a power of attorney 
 to sell the ship to two inhabitants of Charleston, 
 South Carolina. 
 
 After her return to England, she received at Liver- 
 pool preparatory to a second voyage, a cargo under 
 the direction of Eraser, Trenholm and Co., a firm 
 having connections in Charleston. On her second 
 voyage the Bermuda was bound again ostensibly 
 for Bermuda. The vessel was captured by a Federal 
 cruiser on the high seas and sent into Philadelphia. 
 After both the ship and cargo had been condemned 
 by the District Court as good prizes, the case was 
 appealed to the Federal Supreme Court, where the 
 judgment of the lower Court was affirmed. 
 
 Chief Justice Chase in giving the opinion of the 
 Court said: 47 
 
 "Now, what were the marks by which the convey- 
 ance of contraband on the Bermuda was accom- 
 panied? First, we have the character of the contra- 
 band articles, fitted for immediate military use in 
 battle, or for the immediate civil service of the 
 rebel government; then the deceptive bills of lading 
 requiring delivery at Bermuda, when there was 
 47 3 Wallace, United States Supreme Court Reports, page 557.
 
 56 
 
 either no intention to deliver at Bermuda at all, or 
 none not subject to be changed by enemies of the 
 United States; then the appointment of one of these 
 enemies as master, necessarily made with the knowl- 
 edge and consent of Haigh, if he was owner; then the 
 complete surrender of the vessel to the use and con- 
 trol of such enemies, without even the pretence of 
 want of knowledge, by the alleged owner, of her 
 destined and actual employment." The Bermuda 
 was justly liable, the Chief Justice continued, to 
 condemnation for the carriage of contraband goods 
 to a belligerent port under circumstances of fraud 
 and bad faith which made the owner liable and 
 responsible "for unneutral participation in the 
 war." 48 
 
 The case of the Hart* g tried soon after that 
 of the Bermuda, was very similar. The vessel had a 
 cargo of arms and munitions of war, taken on board 
 chiefly at London under the direction of Confederate 
 agents. The nominal destination of the vessel and 
 cargo was Cardenas, Cuba; but the proofs of evi- 
 dence were clear that the real destination after 
 reaching Cardenas was to be a port of the Con- 
 federacy. 
 
 48 (1865) 3 Wallace, United States Supreme Court Reports, page 558. 
 
 49 Ibid, page 559.
 
 57 
 
 Chief Justice Chase said : 50 
 
 "The case in its principal features resembles that 
 of the Bermuda and her cargo; they are, perhaps, 
 even more irreconcilable with neutral good faith. 
 
 "It is enough to say that neutrals who place their 
 vessels under belligerent control, and engage them 
 in belligerent trade, or permit them to be sent with 
 contraband cargoes under cover of false destination 
 to neutral ports, while the real destination is to 
 belligerent ports, impress upon them the character 
 of the belligerent in whose service they are employed, 
 and cannot complain if they are seized and con- 
 demned as enemy property." 
 
 The lower Court's decree condemning both the 
 vessel and cargo was affirmed. 51 
 
 60 3 Wallace, United States Supreme Court Reports, page 560. 
 
 51 The doctrine of continuous voyages affirmed in these two cases of 
 the highest American Court as a rule of the Law between Nations, while 
 not accepted as sound by all publicists and all nations, was later, during 
 the South African Three Years' War, acted upon by Great Britain in the 
 case of the German steamers, Bundesrath, Herzog and General. Those 
 three vessels bound in 1900 from neutral German ports to the neutral 
 Portuguese port of Lorenzo Marques on Delagoa Bay, were seized by 
 cruisers of Great Britain because these neutral vessels were thought to 
 be carrying contraband of war destined for the two Boer Republics. 
 The German Government demanded their release on the ground that 
 as they were sailing between neutral ports, there could not be said 
 to be any carrying of contraband between the neutral ports. Great 
 Britain did not recognize the principle advanced by Germany, and
 
 58 
 
 If the decisions in the cases of the Bermuda and 
 Hart are compared with the judgments in the cases 
 of the Springbok and the Peterhoff, also tried a little 
 later by the Federal Supreme Court of the United 
 States, it becomes apparent that some decisions at 
 least of Municipal Tribunals of the highest degree, 
 possessing a continuing and compulsory jurisdiction, 
 may be open to attack or unfavorable criticism as 
 compromises, rather than judgments judicial in 
 character, with quite as much justice and plausibility 
 as many of the decisions of International Courts of 
 Arbitration appointed ad hoc, which, possessing 
 merely a temporary existence, do not enjoy a com- 
 pulsory jurisdiction, but rely on the previous agree- 
 ment and willingness of the litigant Nations to 
 accept and loyally carry out the decisions handed 
 down by such temporary International Tribunals. 
 To put it in other words, many of the International 
 Courts of Arbitration appointed ad hoc, whose 
 judgments have been severely attacked, often by 
 more or less interested parties, as compromises 
 rather than judicial decisions, were no more guilty 
 .in that respect than Municipal Tribunals in many 
 
 asserted that, even though carried in a neutral vessel bound for a 
 neutral port, articles intended ultimately for the enemy were con- 
 traband of war.
 
 59 
 
 decisions which the latter have handed down; and 
 in many instances did render judicial decisions which 
 have been unjustly attacked as compromises. 
 
 The Springbok sailed from London, December 8th, 
 1862, and was captured about one hundred and fifty 
 miles east of Nassau, a port in one of the British 
 West Indies, February 3rd, 1863, when bound to that 
 port. 52 Both ship and cargo were condemned by 
 the District Court, and the case was appealed to the 
 Federal Supreme Court. 
 
 The shipping articles engaged the crew not only 
 from London to Nassau, but also from there, Chief 
 Justice Chase said, 53 if necessary, to any other West 
 Indian, British North America or American port, and 
 finally to a British port, "and it is also true that this 
 engagement would include, should the master under- 
 take it, a continuance of the voyage for the convey- 
 ance of the cargo from Nassau to a blockaded port; 
 but there is no proof that there was any engagement 
 for such continuance of the voyage." 
 
 The ship's papers seemed to show, the Court 
 thought, no intention to take the goods further than 
 Nassau, though the master was uncertain in his 
 
 52 The Springbok (1866) 5 Wallace, United States Supreme Court 
 Reports, page i. 
 
 53 Id. page 21.
 
 6o 
 
 testimony as to the real ownership of the cargo. 
 The Court decided that the ship was not involved 
 with the contraband part of the cargo, but was in 
 good faith carrying it to a neutral port, Nassau, 
 so the vessel was not condemned by the Court, 
 though the judgment of the lower Court was affirmed 
 as to the cargo. 
 
 On the whole review of the case it would seem 
 that the Court was anxious not to condemn a mer- 
 chant vessel of a powerful neutral State whose 
 government had been none too friendly to the Union 
 cause; and, although there was evidence that seemed 
 to show that the Springbok could have been con- 
 tinued for a Confederate port when captured in the 
 region of the port of Nassau, a port well known to 
 be in service as a base for running the blockade, the 
 Court nevertheless discharged the vessel. While in 
 the case of the Springbok the suspicion of unneutral 
 service on the part of the vessel was not overwhelm- 
 ing, still it distinctly existed, and so gives strong 
 color to the thought that the decision of the Court 
 in that case in not condemning the vessel was a 
 desire to reach a compromise which would be more 
 or less pleasing to both Nations. 
 
 The Peterhoff, a British vessel, bound from 
 London to Matamoras in Mexico, forty miles up the
 
 6i 
 
 Rio Grande and opposite Brownsville in the Con- 
 federate States, was seized February 25th, 1865, 
 by a United States war vessel near the island of 
 Saint Thomas. 54 The cargo, which was miscella- 
 neous in character, was in part useful for military 
 purposes. It consisted also of iron, steel, many drugs 
 and other things which, owing to the blockade of 
 the Confederacy by the Federal Government, were 
 much needed in the Confederate States. When the 
 Peterhoff was captured by the United States cruiser 
 Vanderbilt, not only did the captain of the Peterhoff 
 refuse to go on board the war vessel to have his 
 papers examined, on the ground that, as he was 
 carrying a British mail, all his papers should be 
 examined on his own ship, but also papers or articles 
 of some sort were thrown overboard by his com- 
 mand and lost. The captain of the Peterhoff, in 
 addition, admitted in Court that he had destroyed 
 some letters, which he swore were addressed to him 
 by his wife and father, but that no other papers 
 were destroyed. The cargo was shipped mostly by 
 various British subjects, and a portion of it belonged 
 to the owner of the vessel. The New York District 
 
 64 The Peterhojf (1866) 5 Wallace, United States Supreme Court 
 Reports, page 28.
 
 62 
 
 Court condemned both the vessel and the cargo as 
 lawful prizes of war. 
 
 The Federal Supreme Court decided that part of 
 the cargo was contraband, and that so much of the 
 rest of the cargo as was not contraband, but belonged 
 to the owner of the contraband, must be condemned. 
 The Court, however, did not condemn the rest of the 
 cargo, nor the vessel, on the ground that there was 
 no intention of the vessel's attempting to break the 
 blockade. In view of the throwing into the sea of 
 some papers or some object from the vessel at the 
 time the capture was taking place, and the master's 
 admission in Court that he had destroyed papers 
 which he alleged were merely letters from his wife 
 and father, it would seem that the Court was lenient 
 in its decision, preferring not to press too hard on the 
 neutral owners either of the vessel or of a large part 
 of the cargo. A comparison of the judgment in this 
 case with those in the cases of the Bermuda and the 
 Hart, in view of the strange doings of the master of 
 the Peterhoff in destroying papers on board his 
 vessel and throwing a package into the sea at the 
 time of the capture of the Peterhoff, strongly sug- 
 gests that the judgment of the Court in this case was 
 very possibly a compromise. 
 
 The Supreme Court of the United States in both
 
 63 
 
 the case of the Springbok and that of the Peterhoff, 
 while sustaining the lower Courts in their judgments 
 as to the condemnation of the contraband portion 
 of the cargo, had, nevertheless, a good and abundant 
 reason to be lenient wherever it was possible upon the 
 vessels of Great Britain, a strong neutral nation, 
 because Great Britain throughout the war had often 
 shown that she was jealous of the rise and growth of 
 the United States. While it cannot be affirmed posi- 
 tively that the judgments handed down by the 
 Federal Supreme Court in the cases of the Springbok 
 and the Peterhoff were compromises, nevertheless, 
 those two decisions are open to criticism as com- 
 promises rather than strictly judicial judgments 
 with quite as much plausibility and accuracy as a 
 number of judgments given by International 
 Tribunals set up ad hoc, which have been criticised 
 by some writers as being compromises. 
 
 A comparison of the decisions in the cases of the 
 Queen v. Keyn and the Paquete Habana with those 
 in the cases of the Alabama Claims and the Bering 
 Fur Seal Fisheries is illuminative of the subject under 
 discussion. In many important respects those two 
 pairs of cases the one pair tried before Municipal, 
 the other before International Tribunals are very 
 similar.
 
 6 4 
 
 In the two former of these four cases, the two which 
 were argued before and decided by two notable 
 Municipal Tribunals, the Court in neither case was 
 unanimous. The same thing was true of the latter 
 two cases, the two which were tried and decided by 
 International Courts of Arbitration. In the Queen 
 v. Keyn the Court divided seven judges to six, and in 
 the Paquete Habana six to three. In the Alabama 
 Claims case the Tribunal divided on some counts 
 four to one, on others three to two, and in the Bering 
 Fur Seal case, on the question of the extent of the 
 territorial sea the Court was six to one in favor of the 
 three mile limit and five to two on some other points 
 of the case. In all four of those cases the judges, 
 both Municipal and International, had to rely in 
 part on their own individual consciences and common 
 sense in arriving at their decisions. In other words 
 they had to decide something that had never been 
 decided before. Another point of similarity is to 
 be found in the Queen v. Keyn and the Alabama 
 Claims cases. In each of those two cases, one tried 
 before a Municipal, the other before an International 
 Tribunal, legislation was called into play. As a 
 result of the decision in the Queen v. Keyn, which 
 abolished the territorial sea so far as English Law and 
 English Courts were concerned, Parliament had to
 
 65 
 
 come to the rescue in the Territorial Waters Jur- 
 isdiction Act of August 1 6, 1878, to remedy the 
 resulting situation which placed Great Britain in a 
 way, as a result of that decision, outside of the pale 
 of International Law. By that act, Parliament not 
 only overruled the decision of the Court in the 
 Queen v. Keyn, but even went so far as to say that 
 that decision was wrong in its interpretation of the 
 Law in the past. 55 For the act declared that Her 
 Majesty's jurisdiction over the open seas adjoining 
 Her dominions not only extended but also "has 
 always extended" over the marginal seas as far as 
 was necessary for the security of Her Majesty's 
 dominions. In the Alabama Claims case, legislation 
 also had to be called into play, for the agreement 
 as to the "Three Rules " of the Treaty of Washington 
 was legislation by the two interested Nations as to 
 that particular case. There was this difference 
 between the two cases, that in the former the legis- 
 lation was resorted to as a result of the decision, as a 
 means of nullifying it for the future, as well as declar- 
 ing it wrong as to the past; while in the latter case 
 the legislation was a prerequisite so as to clarify the 
 Law of Neutrality upon which the American and the 
 
 55 John Bassett Moore, International Law Digest, Washington, 
 1906, Volume I., page 714.
 
 66 
 
 British Governments were not in accord, in order 
 that the Alabama Claims case might be tried before 
 the International Court that sat at Geneva. In 
 both cases, the one tried by a Municipal Court as 
 well as the one tried by an International Tribunal, 
 legislation was necessary. 
 
 As Professor John Bassett Moore has so well 
 said, 56 the legislation agreed upon in the Treaty of 
 Washington by the United States and Great Britain, 
 that is, the Three Rules, which were to be applicable 
 in the Alabama Claims case, did not touch the judicial 
 character of the decision given by the Geneva 
 Tribunal, but affected only the question "whether 
 the award must be accepted as an exposition of 
 contemporaneous International Law just as we may 
 have a question whether the judgment of one of our 
 Municipal Courts in obedience to a statute is to be 
 regarded as an exposition of the Common Law ; and 
 in determining this we are dealing not with the judi- 
 cial or non-judicial character of the deliverance in 
 the remotest degree, but with the question whether 
 the statute was declaratory of the Common Law." 
 
 The essential difference between International 
 Tribunals of Arbitration such as the Geneva Court 
 of 1871-72 and the Paris Court of 1893 from Munici- 
 
 66 In a letter of October 3ist, 1914, to the present writer.
 
 6? 
 
 pal Tribunals such as the Supreme Court of the 
 United States is that the former are temporary in 
 their existence and constituted to judge a particular 
 case or a series of somewhat similar or analogous 
 cases, while the latter are continuous in their exist- 
 ence, exercise a pre-existing jurisdiction to which 
 all individuals are subject nolens volens, and sit upon 
 all sorts and kinds of cases that may be brought to 
 their bar. It may be, perhaps, that in time, out of 
 such temporary Courts as those that sat and judged 
 at Geneva and Paris between the North American 
 Republic and the British Empire, and the more 
 recently constituted Courts set up ad hoc at the 
 capital of Holland according to the conventions of 
 The Hague Peace Conferences, a Supreme Court of 
 the Nations, always in being, may be evolved to 
 judge legal cases arising between Nations. 57 But 
 before an attempt is made to establish such a 
 Tribunal to judge always between the members of 
 the family of Nations, it would seem wise that the 
 temporary individual Tribunals set up at The 
 Hague to judge each a designated case or series of 
 similar cases should be changed to the end that 
 
 57 Thomas Willing Balch: Differends juridiques et politiques dans 
 les rapports des Nations, Revue Generate de Droit International Public, 
 Paris, 1914, page 181.
 
 68 
 
 the judges of such temporary Courts may be strength- 
 ened in the judicial habit to the exclusion of recon- 
 ciling the political desires of the contending Nations. 
 To insure so far as possible that in the future the 
 decisions given by the International Courts set up 
 ad hoc at The Hague shall base their decisions upon 
 judicial grounds and avoid even a tinge of political 
 compromise creeping in, three things could be 
 resorted to. First, in the agreement or compromis 
 referring a case to one of The Hague International 
 Courts, it could be specifically provided that the 
 decision, as Professor Lassa Oppenheim has suggested, 
 should be based upon legal grounds. Second, the 
 second Hague Convention of 1907 could be amended, 
 so that all the judges in the International Courts 
 provided for under The Hague Conventions should 
 be not only men learned in the Law, but in addition 
 should not be diplomatists by training. Third, in 
 accordance with the motion made at the Second 
 Hague Peace Conference by Mr. Scott of the United 
 States and supported by Professor de Martens of 
 Russia, Doctor Lammasch of Austria, and several 
 other delegates, the individuals appointed by their 
 respective governments to the panel from whom the 
 judges for each of The Hague International Courts 
 should be chosen to try a particular case, must not
 
 69 
 
 be permitted to appear in any international case as 
 advocates or agents, but only as judges. 58 
 
 In addition, it would be well if the publicists of the 
 world criticised favorably or adversely, as the facts, 
 the arguments, and the decision in each case might 
 appeal to them, the judgment of each International 
 Court and even of each individual judge sitting in 
 those Courts, and point out when and in how far 
 each court or individual judge failed to judge accord- 
 ing to the Law and sought to base his decision upon 
 a compromise so as not to displease either party. 
 But the criticism of an advocate who had taken 
 part in a case should always be taken cum grano 
 salis. In that manner, the future fame of the 
 individual international jurists sitting in any of The 
 Hague Courts set up ad hoc would rest in a measure 
 in the hands of the men who write and comment 
 upon the Law between Nations. In that way not 
 only a strong incentive for future fame would be 
 available to induce the judges of The Hague Inter- 
 national Courts to judge according to the Law 
 between Nations, but also their actual every day 
 
 58 Deuxieme Conference Internationale de la Paix: Actes et Documents, 
 The Hague Impriemrie Nationale, 1907, Vol. II., p. 753. Premiere 
 Commission, Premiere sonscommission, Comite d'Examen C. Huitieme 
 seance, p, Septembre 1907; p. 767; Comite d'Examen A. Dix-septieme 
 seance, pages 587-589.
 
 standing as jurists would be enhanced or lowered 
 accordingly as they decided as international judges 
 or as amiable reconcilers or mediators. 
 
 By thus amending the manner of forming The 
 Hague International Courts named ad hoc to try 
 each a single case or a series of similar cases, the 
 judicial character of those International Tribunals 
 of Arbitration would be strengthened; and they 
 could be looked to for the dispensation of justice in 
 the future between Nations as truly as in the past 
 the High Court of Admiralty of England in Lord 
 Stowell's day, or the Supreme Court of the United 
 States or the International Tribunals that sat 
 respectively in the Alabama Claims and the Bering 
 Sea Fur Seal Fisheries cases, handed down judicial 
 decisions based on the principles of the Law and the 
 ideas of justice. 
 
 May i3th, 1915. 
 PHILADELPHIA.
 
 INDEX.
 
 INDEX. 
 
 PAGE 
 
 Atmable, compositeur 22, 35, 70 
 
 Alabama Claims i, 2, 20, 32, 63-66, 70 
 
 Alexander the Third 21 
 
 American Civil War 52, 54 
 
 Anglo-American boundary case 24, 26 
 
 Anglo- Venezuelan boundary case 26 
 
 Anna, the 38, 39 
 
 Arbiter 3-5, 7-9, 12 
 
 Arbitrage 3 
 
 Arbitrament 3, 5, 6 
 
 Arbitrate 5, 6, 8, 9 
 
 Arbitration 5-9, 12, 13, 20, 21, 31, 32 
 
 "Arbitration " as a term of International Law I, 2 
 
 Arbitration, International I, 24, 26, 30, 33, 34, 70 
 
 Arbitration, International Courts of 23, 25, 27, 29, 30, 
 
 31, 54, 58, 63, 64, 66, 69, 70 
 
 Arbitration, Municipal i, 2, 33 
 
 Arbitrator 3, 4, 5, 7, 8, 9, n, 12, 13, 15-21, 24, 26, 28 
 
 Arbitrator, International 23, 34, 35 
 
 Bering Sea Fur Seal Fisheries case I, 2, 23, 25, 63, 64, 70 
 
 Bermuda, the 54~58 
 
 Bouvier, John 10-12 
 
 Bundesrath, the 57 
 
 Bynkershoek, Cornelius van 37, 39 
 
 Cannon shot limit of the territorial sea 36, 37, 40 
 
 Chase, Chief Justice 55~57 
 
 Cockburn, Chief Justice 43, 44 
 
 Coleridge, Chief Justice 42
 
 74 
 
 PAGE 
 
 Continuous voyages 52, 54, 57, 59 
 
 Courts, International I, 28 
 
 Courts, Municipal 2, 23, 33-35, 46, 50, 53, 54, 58, 63, 64, 66 
 
 England 2, 24, 26, 36, 37, 40-42, 52, 67 
 
 English lexicographers 2 
 
 France 21, 42 
 
 Franco-Dutch Guiana frontier case 21 
 
 Fuller, Chief Justice 47~49 
 
 Fulton, Thomas Wemyes 36 
 
 Genet, Monsieur 37 
 
 General, the 57 
 
 Geneva Tribunal 2, 20, 66, 67 
 
 Gray, Justice 14, 47, 48 
 
 Great War i 
 
 Hague Peace Conferences, The 29, 31, 67, 68 
 
 Hall, William 49 
 
 Harlan, Justice 47 
 
 Hart, the 56, 58, 62 
 
 Herzog, the 57 
 
 High Court of Admiralty of England 14, 37, 40, 70 
 
 Institut de Droit International 21, 23 
 
 International Law I, 2, 13, 14, 19, 20, 22, 23, 26, 27, 30, 31, 
 
 36, 39-41, 43, 44, 47-49, 52, 66, 69 
 
 James the First of England 36 
 
 Jefferson, Thomas 37 
 
 Johnson, Samuel 4-7 
 
 Judex, Roman 12 
 
 Judge 4, 17, 21, 22, 34, 35, 53, 70
 
 75 
 
 PAGE 
 
 Kliiber, J. B 19 
 
 Lammasch, Doctor 68 
 
 Law between Nations. See International Law. 
 
 Law of Nature 15, 17 
 
 Legal cases 28, 67 
 
 Maria, the 14, 20 
 
 Marine league 36-41, 44-46, 65 
 
 Martens, Fedor de 29, 68 
 
 McKenna, Justice 47 
 
 McKinley, President 47 
 
 Mediate 6, 8-10 
 
 Mediation 7, 8, 10, n, 26, 27, 31, 32 
 
 Mediator 7, 8, 10, 18, 22, 26-28, 70 
 
 Moore, John Bassett 31, 65, 66 
 
 Municipal Law 2, 13, 17, 23, 31 
 
 Netherlands, the 21, 36, 42, 67 
 
 Neutrality 65 
 
 New York 34 
 
 North American Confederation, 1781-1789 33 
 
 Oppenheim, Lassa 68 
 
 Paris International Tribunal, 1893 2, 25, 66, 67 
 
 Paquete Habana, the 14, 46, 53, 63, 64 
 
 Paxson, Justice 51 
 
 Pennsylvania 34, 50, 51 
 
 Peterhoff, the 58, 60-63 
 
 Philipps, Edward 3-5 
 
 Political cases '. 28, 67 
 
 Portugal 24 
 
 Praetor, Roman 12 
 
 Puffendorf, Samuel 15-18
 
 7 6 
 
 PAGE 
 
 Queen vs. Keyn 4-43 53i 63-65 
 
 Rawle, Francis 12 
 
 Renault, Louis 23-26 
 
 Revue de Droit International et de Legislation Compare e 21 
 
 Revue Genirale de Droit International Public 25 
 
 Rolin-Jaequemyns, Gustave 20 
 
 Russia 29, 30 
 
 Sanderson vs. The Pennsylvania Coal Company 50, 53 
 
 Scott, Sir William. See Lord Stowell. 
 
 Snow, Freeman 49 
 
 Spain 42 
 
 Springbok, the 58-60, 63 
 
 State, two meanings of the word in American history 33, 34 
 
 Stowell, Lord 14, 20, 37-40, 49, 52 
 
 Three Rules, the, of the Treaty of Washington 65, 66 
 
 Twee Gebroeders, the, Alberts master 38 
 
 Twee Gebroeders, the, Northolt masters 38 
 
 United States 26, 27, 34, 54, 55, 65, 67 
 
 United States Supreme Court 14, 46, 47, 52, 57-59, 62, 67, 70 
 
 Vanderbilt, the 61 
 
 Vattcl, Emerich de 14, 18 
 
 Washington, Treaty of 65 
 
 Webster, Noah 7~9 
 
 Westlake, John 26-29 
 
 Worcester, Joseph E 9 IO
 
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