INTERNATIONAL COUNTY COURTS.

Press, Volume XII, Issue 1558, 4 November 1867, Page 3

INTERNATIONAL COUNTY COURTS.

[From the " Pall Mall Gazette," July 24.] The debate in the House of Commons upon our Spanish difficulties recals the discussion about the behaviour of the Spanish Government in the matter of the English ship Mermaid. This debate brought to light some points connected with international law of the existence of which people are generally altogether ignorant, or at all events negligent. The facta about the Mermaid lie in a nutshell. She was passing the port of Ceuta, and was fired into for not showing her colours. Of the three shots fired for that purpose one, as the crew allege, went through her bottom, and eventually sank her. The Spanish Government allege that the captain and crew are unworthy of belief, and that iv point of fact the ship was sunk to cheat an insurance office. This being the state of things, each Government backs its own countrymen. The English Government declares its belief that the ship was sunk by a cannon ball, and asks for compensation. The Spanish Government declares that she was sunk by fraud, and refuses compensation, and even arbitration in any form. The interests at stake are perhaps not worth £1000 altogether, and the question in debate is purely a question of fact; no principle, great or small, is involved in its decision either way. The Spaniards admit that if their artillerymen were careless and sank the vessel when they meant only to warn her, they ought to make compensation to the owners. The English of course admit that unless this was the case the owners-have no claim. In a word, the question is whether the cannon ball hit the vessel or not, and at half the towns at which assizes are just now being held questions much more important to all the parties, and far more intricate and difficult of decision, will be decided in the course of the next few weeks by ordinary juries to the satisfaction of all the parties concerned. As between England and Spain the question cannot be decided at all, except by the remedy of war, which, to say nothing of the uncertainty of the decision arrived at after all, would cost considerably more per hour —probably per quarter of an hour—than the whole matter in dispute is worth. What is to bo said of tbia state of

things? It is simple enough to repeat all the usual commonplaces on the subject about the necessity of arbitration, the scandal to Christianity and civilization which is caused by the absence of any peaceable means of settling such petty matters ; but every one who has been accustomed co reflect on the subject must perceive that it is by no means so easy as it may appear at first sight to refer questions between nation and nation to arbitration. As we have frequently pointed out, it is the commonest of all errors to misconceive entirely the true nature of arbitration. ; Many people suppose that there is a I sort of charm in the word, and that there is some process so called by which all the difficulties and technicalities of an ordinary lawsuit may be avoided and got rid of to the satisfaction of all the parties concerned. Every one who is practically acquainted with the matter knows that arbitration is only a peculiarly intricate and unsatisfactory form of litigation, and that the essential feature of it, the only matter which makes it in any degree useful, is that there are legal means by which the arbitrator's award when made may be enforced. A person who would, go to law merely for the sake of discussing the question at issue would be strangely constituted, but a person who went into an arbitration for such a purpose would be simply insane. The object of litigation in all its forms is not to ascertain the truth, but to enforce that which the Court decides to be the .right of the successful litigant. "What the parties want is not the decision of the jury, but the writ of ft. fa. or ca. sa. addressed to the sheriff. The Courts of law would be deserted if their only function was to decide who was right without enforcing their decision ; and this is the true reason which makes international arbitration considered as a means of avoiding war a mere dream. When you had got your international judge and your international judgment you would still require an international sheriff to enforce the judgment, and this would be war over again. Of course if all national independence werq to be merged in one universal empire, or if all nations were to become perfectly reasonable, there would be no more wars, but iv the one case the price would be far greater than the benefit gained, and in the , other there would be no occasion for arbitration any more than for war. For these reasons, we believe that international arbitration upon any points which deeply touch national feelings of any kind must always be a mere dream. If nations are to learn to be the ultimate judges as to their own honour and their own interests, they cease in effect to be independent, but if they continue to be independent, arbitration between them will be ineffectual. From this dilemma we can see no escape. There are, however, a very considerable class of cases to which these considerations do not apply, and it is no doubt because people have been apt to suppose that these cases are both more common and more important than they really are that they have talked so much about arbitration between nations, and exaggerated its importance so absurdly. There are some cases in which, it is the interest of both parties, and not only their interest, but their wish, to act fairly, and though it is difficult to say why in such cases they should stand in need of the intervention of any third person at all, yet human nature is so weak that men unhappily do sometimes find themselves in such a position. Such cases are continually arising, and at times, as we all know, they come to Be complicated, witlx otHer matters and. produce intense irritation. Thus, lor instance, the ease oi the Alabama claims, when examined to the bottom, turns upon this question —Was the Alabama's escape from Liverpool due to the negligence of the English Government or its subordinates ? This is a question of fact which might readily be decided by any impartial tribunal. This case of the Mermaid, though an exceedingly small one, is exactly the same sort of question. Such points have been and will be referred to arbitration again and again when both the parties are willing to do so, and it is not easy to see why a permanent provision might not be made between the principal Powers of the world for the decision of such questions. There are of course numberless questions between nations which such a Court could not entertain, because all the most important international questions are matters, not of right, but of power. No judgment of any Court that was ever imagined would have been of the smallest use in such questions, for instance, as those which led to the war last year between Prussia and Italy on the one side and Austria on the other, or to the war of 1859 between Prance and Austria, or to the revolutionary wars, or to the wars whicb followed the peace of Amiens, or to any civil war or rebellion or mutiny, or to any war of religion. In such cases as these the only remedy is to fight it out, because the true question is whether A. is stronger than 8., and, though questions of justice and principle have often a great deal to do with the matter, and are important elements in the relative strength of the contending parties, these are not the questions to be determined. They count only as elements of force. What we want, therefore, is not an international Supreme Court, but only an international County Court—a body which would deal with and decide questions which both the parties are willing to regard as mere matters of fact, or as matters of principle, which principle they are willing to have decided by some independent person. If such a Court could be devised there would of course be great difficulties in the way of giving it anything like jurisdiction, for it could not take cognizance of any matter whicb both parties did not agree to submit to it, and it is difficult to see why, if both of them were willing to submit to it, they should not arbitrate without such a

Court.. In the present case, for instance, the Spaniards refuse to arbitrate. "If our international County Court were created, might they not, would they not, refuse to appear, and if they did what would be the use of our getting judgment by default ? Europe, it may be said, would think that Spain was in the wrong, but what good would that do? In the first place, Europe at large would think very little about the matter, but if ft thought about it ever so much its thoughts would be of singularly little use to the owners of the Mermaid so long as the Spanish nation did not act upon them. This, we fear, would sadly cripple the efficiency of the international County Court, but nevertheless it would do some good. A nation which resolutely and systematically refused to pay claims alleged by such an authority to be just, or to admit facts found by such an authority to be true, would unquestionably fall by degrees into bad odour amongst nations, and would be little pitied if after a certain number of judgments had been entered up against it its creditors were to act as their own sheriffs. If, for instance, it be true that the Spaniards have acted insolently J and unjustly towards us for several years and on a variety of occasions (a proposition which we are far from affirming, and do not mean to discuss), if this case of the Mermaid is only one of a series, and if against all reason and justice redress were refused in that and several other cases, it might then be very well worth while Ito consider whether we ought not to ! issue execution upon our various judgments in the form of war. A boy at school must be a very quarrelsome fellow if he fights with everybody who gives him the smallest offence, but he would be a coward if he did not fight if the offence were repeated so often as to show a distinct intention to insult and oppress. It is just the same between nations. It is not worth our while to go to war about a matter of a few hundred pounds which are refused to English subjects upon a question of fact as to which we cannot assert that we may not possibly be in the wrong, but if a competent authority had decided that we were in the right, and if the conduct of the delinquent nation clearly showed an intention to insult us by withholding our just rights, the matter would be altogether changed. The intention in cases of this kind is the principal question, and it might under circumstances become advisable for nations to go to war for a few pounds, just as it might under circumstances become necessary to bring an action against a man at the expense of thousands of pounds for walking across a field or breaking a gate worth five shillings. It is probable that in this mauner our supposed court might in particular cases have a good deal of indirect influence, though it certainly would not produce, as some enthusiasts have supposed, a reign of universal peace. It is even possible that it might be rather favourable than otherwise to war, inasmuch as it would be difficult to complain of a nation which exacted by force what had been ascertained by such a tribunal to be its rights, whilst it would be impossible to complain of the other side for defending its own territory against foreign invaders. Look at the matter how we will, the ultimate result undoubtedly is, that desirable as it may be to try to set up international Courts of justice great or small, the expectation that they will ever really exist is little more than a dream.

Selwyn