2

the Papacy in the rôle of conciliator and arbitrator. Philip VI., Charles V., Charles VII.,3 and Louis XI. were all chosen as arbitrators. The other monarchs of Europe filled the rôle, though not so often, notably the Kings of England, Henry II. and William III. But the commission of arbitration was not generally confided to sovereigns from whom were apprehended attempts at absolute domination, after the manner of the German Emperors, and it was for this reason that Philip II. proposed himself in vain as arbitrator between France and England.6

"Occasionally a city assumed the duties of arbitrator, but such occasions were rare. The treaty of Westminster of October 23, 1655, which reestablished friendly relations between France and the republic of England, stipulated, in article 24, probably because of the preference of Cromwell, that the republic of Hamburg should act as arbitrator between the two countries and decide the question of damages on both sides from the year 1640.7 We may also cite, in 1665, the arbitration of the Grand Council of Malines, between Frederick William, elector of Brandenburg, and the States-General, concerning the obligation of a debt called the debt of Hofyser; and that of the States-General of the United Provinces, concerning dissensions relating to fortified places and auxiliary points, between France and Spain, after the peace of Nimeguen." "The parliaments of France, renowned for their wisdom and equity, were chosen to settle disputes between foreign sovereigns.10

"Besides popes, kings, cities and great constituted bodies, we may mention commissions of arbitration instituted by parties in proportions fixed in advance and invested with full power over particular subjects." "Again, some eminent jurisconsult was employed specially renowned for his juridical knowledge. The doctors of the Italian universities of Perugia and Padua, and particularly of the celebrated University of Bologna, were, says Wheaton, on account of their fame and their knowledge of law, often employed as diplomatists or arbitrators, to settle conflicts between the different states of Italy. They were employed to determine the question of the right of the house of Farnese to the succes

1P. IX.

2 Du Mont. I., IIe partie, 142.

3 Id. III., 1re partie, 144.

Nys, Le droit et les précurseurs de Grotius, 32.

5 Du Mont. VIII. 1re partie, 93.

De Flassan, II. 42.

De Flassan, III. 200. (Art. XXV. also provided for the submission in the same manner of a question as to the possession of certain forts in America.)

8 Du Mont, VI. 3 partie, 41.

Du Mont, VIII. 365.

10 Dalloz, Répertoire, vo Arbitrage, ch. VI. sec. 16; Chopin, Traité du domaine, liv. II. t. XV. sec. 9; Carnazza-Amari, Traité de droit int. trad. Montanari-Revest, II. 565, note; Despangea. 702.

11 Rouard de Card, L'arbitrage int. dans le passé, le présent et l'avenir,18; de Flassan, I. 116, 257.

12 Les progrès du droit des gens, I. 109; Bry, Précis de droit int. public, 462.

sion to the throne of Portugal. One of the most illustrious of them, Alciat, decided upon the rights of sovereignty and of independence of the different principalities of Italy and of Germany. In France, Jean Begat, councillor of the parliament of Dijon, was chosen as arbitrator between the King of Spain and Switzerland, in relation to Franche Comté, in 1570.3

"Under the influence of religious and feudal ideas arbitrations were very frequent in the Middle Ages, which afford the remarkable spectacle of conciliation and peace making their way amid the most warlike populations that have ever existed. They were especially frequent in Italy, where in the thirteenth century there were not less than a hundred between the princes and inhabitants of that country. But when the Papacy had renounced its rule over civil society and absolute monarchies gradually became established in Europe on the ruins of feudalism, arbitrations became more rare. They diminished during the course of the fourteenth and fifteenth centuries, and it is stated that from the end of the sixteenth century till the French Revolution, they had almost disappeared from international usage. Nevertheless, says Klüber, to judge by manifestoes and proclamations, no sovereign ever went to war without having made every effort to prevent it. Why, then, he asks, did they not seek arbitration? Klüber, says Kamarowski, did not answer this question; but the answer may be found in these words of Rousseau: Could they submit themselves to a tribunal of men who boasted that their power was founded exclusively on the sword and who bowed down to God only because he is in heaven?' 6

"If we should try to find judicial rules that governed arbitration in the different periods at which we have glanced, we should discover that they did not present great stability, and that they varied with different litigations. The choice of arbitrators fell generally on monarchs, and exceptionally on arbitral commissions or private individuals. A period was sometimes fixed either for the meeting of the arbitrators (the treaty of Vervins of 1598, art. 17, provided that it should take place in six months) or for the rendering of the decision (the Treaty of Westminster of 1655 allowed six months and a half). Sometimes a penal clause was inserted, by which a penalty was imposed on the party who refused to submit to the decision; for example, the treaty of the 9th of August 1475, between Louis XI. and Edward IV., prescribed a sum of three million francs.7

In

"The procedure, also, varied according to the case, but it usually afforded certain guarantees and was invested with a certain judicial aspect. the dispute relating to Montferrat, between the Dukes of Savoy and Mantua and the Marquis of Saluces, Charles V. empowered certain persons to

Travers Twiss, Le Droit des gens en temps de guerre, 10; CarnazzaAmari.

Pradier-Fodéré, 342.

3 Dalloz, loc. cit.

'Digesto italiano, IV. 1re partie, 319 à 374, vo Arbitrati internazionali. Conf. Pandectes françaises, loc. cit., No. 21.

P. 456, note a.

6 P. 186.

'De Flassan, 226.

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examine the matter, and with their advice rendered his judgment. In the presence of these delegates the lawyers of the litigants appeared and argued, either about the whole of Montferrat or some of its territories or special rights. First, the Emperor decided on the principal object of the dispute, and allotted Montferrat to the Duke of Mantua; next he settled the question of the dowery of Blanche of Savoy, for the guaranty of which he set apart certain sureties; and finally he decided concerning the gift of a marriage portion. The restoration of the possession of the Duke of Mantua was made conditional on his furnishing sufficient securities to the Emperor. The parties were ordered to repair to the imperial court, and there to receive the final decision, which settled forever the question between the possessor and the petitioner.'

"The arbitral clause, or stipulation for the arbitration of difficulties that may arise, does not appear to have been frequent in the Middle Ages, or in later times, though we have had occasion to cite some examples of it. It seems, however, to have been in use between the commercial cities of Italy. Vattel relates that the Swiss, in the alliances which they contracted, whether among themselves or with foreign peoples, had recourse to it; and he justly praised them for it. We may cite two applications of it in the case of the cities of Italy and the Swiss Cantons. In a treaty of alliance concluded in 1235, between Genoa and Venice, there is an article which reads thus: If a difficulty should arise between the aforesaid cities, which cannot easily be settled by themselves, it shall be decided by the arbitration of the Sovereign Pontiff; and if one of the parties violate the treaty, we agree that His Holiness shall excommunicate the offending city.' The treaty signed in 1516, between Francis I. and the Swiss Cantons, which was known by the name of the 'Perpetual Peace,' contains the following clause: 'Difficulties and disputes that may arise between the subjects of the King and the inhabitants of the Swiss Cantons, shall be settled by the judgment of four men of standing, two of whom shall be named by each party; which four arbitrators shall hear, in an appointed place, the parties or their attorneys; and, if they shall be divided in opinion, there shall be chosen from the neighboring countries an unbiassed man of ability, who shall join with the arbitrators in determining the question. If the matter in dispute is between a subject of the Cantons and Leagues and the King of France, the Cantons will examine the demand, and, if it is well founded, they will present it to the King; but, if the King is not satisfied with it, they may call the King before the arbitrators, who shall be selected from among impartial judges of the countries of Coire or of Valois, and whatever shall be decided by the aforesaid judges, by a judicial or amicable sentence, shall be inviolably observed without any revocation.' M. de Flassan says that these stipulations were worthy of remark as examples of good faith and true wisdom. He adds

1 Barbeyrac, III. 1re partie, 118.

2 Vattel, Le Droit des gens, L. II., C. XXVIII., sec. 329, t. II., p. 58. Conf. Histoire de la Confédération helvétique, de A. L. de Watteville, L. IV. A. Pertile, Storia del diritto italiano, citation des l'andectes françaises, No. 24.

that this treaty of perpetual peace was the basis of numerous alliances, which from this date took place between France and the Swiss Cantons.'

"Let us finally add that in arbitrations anterior to the 17th century, it is often very difficult, sometimes impossible, clearly to separate cases of mediation from those of arbitration, either because the terminology was not very definite or the expressions used were equivocal, or because the distinction was not clear to the minds of the negotiators. Thus the bishops chosen to settle pending difficulties between Louis XI. and Edward of England were styled arbitrators or amicable mediators.

"In 1334 Philip of Valois declared himself elected judge, negotiator, and arbitrator between the King of Bohemia, the Princes of Germany, and the Duke of Brabant. Sometimes the mediation was of an obligatory nature, owing to the fear inspired by the mediator's being able to impress his views by force of arms. Thus Henri IV. acted as mediator between the Republic of Venice and Pope Paul V. The Pope counted on Spain's sustaining him; but Henri IV., in order to oppose the forces of that country, made propositions to the Swiss to raise ten thousand men; so that the Pope was finally obliged to submit to the will of the French King.

"But from the year 1595 we find the distinction between mediation and arbitration clearly defined by the French ministers, who interposed between the Protestants and Catholics, who were on the point of coming to blows on the subject of the expulsion of Catholic magistrates from Aix-la-Chapelle and of their replacement by a Protestant magistracy. We declare to you,' say the ministers on the part of His Majesty (the King of France), 'that he has no design of prejudicing the authority and the rights of the Emperor, of the Empire, of any prince, or of any person; and in order that the pending dispute may be discussed in an easy and orderly way, we invite you respectively to depute peaceable and dispassionate men, who can confer with us in all confidence and safety, and we will listen patiently to whatever they may say and propose, not as judges or arbitrators, but as mediators and amicable compositors."2

Additional cases-It is proper to refer to certain early arbitrations, or provisions for arbitration, not mentioned in the preceding review. It seems that in 1299 certain commissioners were sitting in Paris "to redress damages done to merchants of various nations by a French admiral within the English seas."3 This apparently was in the nature of an arbitral proceeding.

"In 1321 a treaty was entered into with John of Brittany for the settlement of piracy claims by arbitrators - -a ce amender civilement.' It is provided that the procedure is to be somerement et de plantz'— 'summary and straightforward.' The same expression is used to describe the procedure of the admiralty court in admirals' patents of the sixteenth century."4

II. 313.

* De Flassan, I. 310.

3 Hall, Int. Law, 4th ed. 147.

4 Select Pleas in the Court of Admiralty (Selden Society Publications), I. XXIII., citing Fod. II. pt. 1, p. 456.

By Articles VII. to XIII., inclusive, of a treaty between James I. of England and Henry IV. of France, signed at Paris, February 24, 1606, tribunals in the nature of international courts of commerce were created. It being "impossible to provide against particular complaints," even concerning the quality of commodities transported from one kingdom to the other, and to prevent "mistakes and abuses," it was agreed that his Most Christian Majesty should name "two noted French merchants in the city of Rouen, men of substance and experience," who, with two English merchants of like quality to be appointed by the British ambassador in France, should receive the complaints of English merchants and remove all differences as to traffic and commerce in Rouen and the harbors of the province. On the other hand, His Britannic Majesty was to name two merchants in London, who, with two French merchants to be named by the French ambassador, were to receive the complaints of French merchants. And when they could not agree, the four merchants at Rouen were to choose "a fifth French merchant," and the merchants at London an English merchant, so that "the judgments passed by the plurality of voices," should be "followed and put in execution." It was further stipulated that “like establishments" should be made "in the cities of Bordeaux and Caen, as also in the cities and towns of the kingdoms of Great Britain and Ireland." For convenience these merchants were to be called "Conservators of commerce." They were charged, among other things, "to take care of the weights and measures in every city of the one and the other kingdom, that so there may be no fraud or abuse on either side;" and as to "merchandises," they were to regulate such as they shall judge proper to be inspected and visited." They were specially charged to supervise the trade in cloths, deciding what were "good and fit for the market," and what should be "returned to England as being bad."1

The Treaty of Munster (Peace of Westphalia), October 24, 1648, provided (Art. VIII.) that the controversy touching Lorrain should be referred to arbitrators nominated by both sides," or else terminated by a treaty between France and Spain, or by some other friendly means.

By Articles CVIII.-CX., inclusive, of the Peace of the Pyrenees, of November 7, 1659, it was provided that, in order to give effect to the unexecuted provisions of the Treaty of Vervius of 1598, which was confirmed and approved, commissioners should be appointed on both sides, with power to agree "concerning all things to be yet executed, either touching the interests of the said lords and kings or the interests of the commonalties and private persons, their subjects, who shall have anything to demand or complaint to make on either side," and also "to regulate the limits as well between the dominions and countries that of old have belonged to said lords and kings, about which there have been some debates, as between the dominions and lordships that are to remain to each of them, by the present treaty, in the Low Countries;" and in case they should be unable to agree, it was stipulated that "arbitrators" should be appointed

See, for a somewhat similar provision for a commercial tribunal, Article XXI. of the treaty between Spain and the Low Countries, signed at Munster January 30, 1648.