§3. Amicable accommodation is where each party candidly examines the subject of dispute, with a sincere desire to preserve peace, by doing full justice to the other. In such cases, all doubtful points of etiquette will be yielded, and all uncertain and imaginary rights will be voluntarily renounced, in order to affect an amicable adjustment of differences. If no compromise of the right in dispute can be effected, the question will be avoided by the substitution of some other arrangement which may be mutually satisfactory. Such conduct is worthy of great and magnanimous nations; weaker states seldom act with so much moderation. An example of amicable accommodation is found in the adjustment, by the treaty of Washington, in 1842, of the differences between the United States and Great Britain, with respect to the right claimed by the latter to visit the vessels of the former in search for slavers on the coast of Africa. (Vattel, Droit des Gens, liv. 2, ch. 18, § 226; Webster, Dip. and Off. Papers, pp. 72, et seq.; Wheaton, Hist. Law of Nations, pp. 585, et seq.; Heffter, Droit International, § 107; Bello, Derecho Internacional, pt. 1, ch. 11, §1; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 8.)

§4. Compromise is where the two parties, without attempting to decide upon the justice of their conflicting pretentions, agree to recede on both sides, and either to divide the thing in dispute, or to indemnify the claimant who surrenders his share to the other. As examples of compromise, we may refer to the negotiations terminating in the treaty of 1842, by which the Maine boundary question was satisfactorily adjusted, and to the negotiations terminating in the treaty of 1846, by which the Oregon difficulty was formally disposed of. Accommodation is a particular kind of compromise, and has therefore been deemed by some to be improperly classed as a distinct measure. (Vattel, Droit des Gens, liv. 2, ch. 18, § 327; Webster, Dip. and Off. Papers, p. 32, et. seq.; U. S. Statutes at Large, vol. 8, p. 582, etc.; Heffter, Droit International, 109; Bello, Derecho Internacional, pt. 1, cap. 11, § 1; Riquelme, Derecho Pub. Int., lib. 1. tit. 1. cap. 8.)

§ 5. Mediation is where a common friend interposes his good offices to bring the contending parties to a mutual

understanding. As this friend acts the part of a conciliator, rather than a judge, he may, while favoring the well-founded claims of one party, seek to induce him to relax something of his pretentions, if necessary, in order to secure peace. The mediator is, essentially different from the arbitrator, although he frequently assumes the latter office also; he does not decide upon any of the matters in dispute, but merely seeks to reconcile conflicting opinions, and to moderate adverse pretentions. By thus calming the minds of the disputants, and disposing them to a reasonable accommodation or compromise, the mediator may often avert the evils and calamities of a resort to war. The task is a very delicate one, and the office of mediator requires great integrity and strict impartiality, for unless he possess these qualities in a preeminent degree, his efforts will not be likely to bring about the desired reconciliation of the disputants. Hubner deems it incumbent, upon neutrals generally, to act the part of mediators, in order to prevent, if possible, the breaking out of war. But Galiani is of opinion that, although the post of mediator may be accepted, the office is rather to be avoided than sought, on account of the danger to the mediator of compromising his neutrality. Phillimore prefers the christian principle of Hubner, to the more safe expediency of Galiani, but adds that "much must depend upon the subject of dispute, the character of the disputants, and upon the position and authority of the state which tenders the good offices." (Vattel, Droit des Gens, liv. 2, ch. 18, § 328; Wheaton, Elem. Int. Law, pt. 2, ch. 1, § 13; Phillimore, On Int. Law, vol. 3, § 4; Hubner, De la Saisie des Batiments Neu., tome 1, pt. 1, ch. 2, § 11; Galiani, de' Doveri de Principi Neu., c. 9, p. 162; Garden, de la Diplomatie, tome 1, p. 436, note; Heffter, Droit International, § 109; Bello, Derecho Internacional, pt. 1, cap. 11, § 1; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 8; Real, Science du Gouvernement, tome 5, ch. 3, sec. 8.)

§6, Arbitration is where the decision of a dispute is left to arbitrators chosen by common agreement. If the contending parties have agreed to abide by the decision of these referees, they are bound to do so, except in cases where the award is obtained by collusion, or is not confined within the limits of the submission. It is usual to specify in the agreement to arbi

trate, the exact questions which are to be decided by the arbitrators, and if they exceed these precise bounds, and pretend to decide upon other points than those submitted to them, their decision is in no respects binding. Thus, the award of the king of the Netherlands, on reference by treaty, in 1827, of the question of the northeastern boundary of the the United States, not being a decision of the question submitted to him, but a proposal for a compromise, was not regarded as binding either upon the United States or Great Britain, and was rejected by both, the dispute being afterward amicably settled by the parties themselves.

The following rules, mostly derived from the civil law, have been applied to international arbitrators, where not otherwise provided in the articles of reference. If there be an uneven number, the decision of a majority is conclusive. If there be only two, and they differ in opinion, they cannot call in a third as umpire. The arbitration is dissolved by the death of any one of the referees. A decision once formally delivered cannot be reconsidered without a new agreement, for, when the opinion is delivered, the arbitration is functus officio. The arbitrators do not guarantee the execution of their award, and have no power to enforce it. Where the question is territorial, they cannot determine the possession as distinguished from the right of property; for, by the law of nations, the right of property draws after it the right of possession, and the owner is not to be prejudiced by the possession of another, nor is the possessor to be disturbed in his possession till the question of ownership is determined. But this does not preclude the arbitrators from inquiring into all the circumstances of possession as part of the evidence of title. In other words, they must determine the question of ownership from which follows the right of possession, and not upon the latter as a right distinct from the the former. (Vattel, Droit des Gens, liv. 2, ch. 18, § 329; Wheaton Elem. Int. Law, pt. 2, ch. 1, § 13, note; President's Annual Message, 1831; Am. Ann. Register, 1830–1, p. 146; Phillimore, On Int. Law, vol. 3, §3; Voet, Com. ad Pandect, lib. 4, t. 8; Wildman, Int. Law, vol. 1, p. 186; Grotius. de Jur. Bel. ac Pac., lib. 3, cap. 20, §48; Puffendorf, de Jur. Nat. et Gent., lib. 5, cap. 13, §6; Heffler, Droit International, § 109; Bello,

Derecho Internacional, pt. 1, cap. 11, § 1; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 8; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 4; Real, Science du Gouvernement, tome 5, ch. 3, sec. 8.)

§7. Offers to arbitrate are not always accepted, nor is the state declining the proposal bound to give any reasons in justification for rejecting the proposal of the other disputant, or the proffer of a third power to act as arbitrator. "It cannot," says Phillimore, "be laid down as a general and unqualified proposition, that it is the duty of states to adopt this mode of trial. There may, under the circumstances, be no third state willing, or qualified in all respects, for so arduous and invidious a task. Moreover, a state may feel that the contested right is one of vital importance, and one which she is not justified in submitting to the decision of any arbiter or arbiters." By refusing either to arbitrate, or to accept an offered arbiter, we do not justly incur the suspicion that our intentions are unreasonable or our demands exorbitant. Nevertheless, if the question is not one of vital or of very serious importance, and we refuse to resort to this or any other amicable mode of settlement, such suspicion will be most likely to arise. The refusal to accept the mediation of a third party, not acting as arbiter or judge, but simply as a conciliator, would very seldom be justifiable. (Vattel, Droit des Gens, liv. 2, ch. 18, § 329; Wheaton, Elem. Int. Law, pt. 2, ch. 1, § 13, note; Phillimore, On Int. Law., vol. 3, § 3; Bello, Derecho Internacional, pt. 1, cap. 11, §§ 1, 2; Heffter, Droit International, § 109; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 8.)

§8. Conferences and international congresses have frequently been resorted to, where differences exist between several states, and they are willing to discuss them in a spirit of conciliation, in order to bring them to an amicable settlement. They are also often resorted to after the termination of a general war, for the purpose of discussing and settling questions growing out of the operations of the war, and not included in the stipulations of the treaty of peace. Other states than those who are parties to the dispute, being interested in the determination of the questions submitted, or at least in the

preservation of peace, are most usually invited to take part in these conferences. In order to afford a prospect of success in these deliberations, the plenipotentiaries sent to these congresses should be actuated by a sincere desire to effect a just and amicable settlement of the questions to be discussed. This, however, has not often been the case. The congresses of Cambray, in 1724, and of Soissons, in 1728, are characterized by Vattel as "dull farces played on the political theater, in which the principal actors were less desirous of producing an accommodation, than of appearing to desire it." Moreover, they have generally been under the control of the great European monarchical states and republics, or the smaller sovereignties have had very little weight in their deliberations. Thus, the congresses of Paris and Vienna, in 1814 and 1815, were mainly meetings of conquerors, for dividing among themselves the spoils of conquest, and for mutually agreeing among themselves to what extent each of the greater powers should be permitted to rob its weaker neighbors. "We know from history," says Phillimore, "that congresses of crowned heads have not always proved themselves to be impartial or competent tribunals of international law." For this reason, smaller states seldom willingly submit their disputes to the decision of such tribunals. The congress of Paris, in 1856, by the justice of its acts, somewhat redeemed the general reputation of European conventions of nations. The right of such bodies to intervene in the affairs of states, has been discussed in another place, and will again be alluded to in the chapter on the different kinds of wars. (Vattel, Droit des Gens, liv. 2, ch. 18, § 330; Phillimore, On Int. Law, vol. 1, § 398; vol. 2, §3; Vide Ante, chapter iv., and Post, chapter xiv.; Heffter, Droit International, § 240; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 4.)

§9. Retortion, called by some amicable retaliation, and retortion de droit, is where one nation applies, in its transactions with the other, the same rule of conduct by which that other is governed under similar circumstances. Thus, if one state should make aggressive laws respecting the property, or trade, or personal rights of the citizens of another state, the latter may retort, by enacting similar laws against the citizens of the former. There is nothing in this contrary to