the judge or jury system was the perjury prevalent during this time, and that the existence of perjury misleading judges and juries was the condition rendering trial by battle a preferable tribunal in the estimation of the age. The proof of this is not far to seek. We find it clearly stated in an old German law cited in 17 Ency. Brit., 9th ed., 820, that they avoid perjury; let two be chosen to fight." Again, Pollock and Maitland say "Trial by battle was to avoid perjury." (1 Poll. and Mait.: Hist. Eng. Law, 50.)

66

Gibson says "other causes, such as systematic perjury of witnesses, etc., maintained the system in France. (Gibson, 33.) He cites Hallam's History of Europe in the Middle Ages, i, p. 187, citing Beaunanoir, who wrote to the same effect in the reign of Philip the Bold, and in the Assise de Jerusalem (200 years before Philip the Bold) no mention is made of any other form of trial than by battle. (Gibson, 33.) The difficulty with the system of trial by ordeal was priestly fraud. The difficulty with the systems of trial by compurgation and jury was prevalent perjury.

As in the system of trial by compurgation, the defendant went free if he succeeded in having a number of his neighbors come forward and swear that they believed in him when he swore to the denial of the charge, it will be evident that prevalent perjury would soon throw discredit upon such a system. So prevalent perjury in witnesses, so hard to detect even with all the skill of the modern system of cross-examination, scarcely known in those days, must have led to many unjust verdicts; and thrown discredit upon the system of trial by jury.

"For," says Hallam, "perjury was the dominant crime of the middle ages; encouraged by the preposterous rules of compurgation and by the multiplicity of oaths in the ecclesiastical law. (Hallam: Middle Ages, Suppl. Notes, p. 260.)

Trial by ordeal fell into disuse, and trial by compurgation was ultimately restricted to the action of debt. Coke in explaining in his own time the preference of plaintiffs in suing a claim in the form of an action upon the case (where defendant was not allowed to "wage his law" or bar the claim by trial by compurgation) instead of in the old action of debt, stated it was because in his times "men's consciences do grow so large" that they swore off a debt action with impunity. 295 b.)

(Co. Litt.,

Curiously enough we find this system of trial by compurgation as a

means to escape private war among the Arabs. An article in the Columbia Law Review as late as February, 1907, pp. 100, 106, cites a case in Al Bukhari, Delhi ed., vol. i, p. 542, as illustrating this early custom of the Arabs. A member of one family being suspected of having killed a member of another is approached by one of the members of the family of his victim, who strikes him, saying: "You have killed one of our men;" but Khadish denied the charge. Abu Talib next went up to the man and said:

Choose at our hands, one of three things: If you wish, give a hundred camels for the murder of our kinsman, or, if you wish, get fifty of your tribesmen to swear that you have not killed him. If you refuse either of these, we will kill you in his place.

The case was referred to the judge

who decided that fifty men of Banu Amir-the family of the man charged-should swear before the Kabah that Khadish had not killed the man.

On the other hand, the system of trial by battle fell into disuse when in some cases it was allowed to put forth champions to fight for the respective litigants. The original idea in this system had been that the god of battles took care of the right, and that justice should win. But the retainer of these hired champions evidently left the decision largely in the hands of the litigant with the longest purse. (2 Poll. and Mait.: Hist. Eng. Law, 2d ed., 633.)

In fact, as shown in Lea on Superstition and Force, these hired champions ultimately became a class by themselves as low in the social scale as the gladiators had sunk in the Roman society before them or as the fallen women of our own day are considered. Superstition and Force.)

(See Lea:

IMPROVEMENT IN MORALS CAUSED SURVIVAL OF TRIAL BY COURT OR

JURY

Thus each system had its drawbacks. In the struggle for existence between them, the gradual improvement of the morals of the age leading to less frequent perjury and the passage of statutes, such as the statute of frauds and the statute of limitations, barring probably perjury in the cases where it was likely to be most dangerous and least likely to meet with direct evidence in rebuttal, led in England to the survival of the system of trial by jury as against its competitors, trial by battle, by ordeal and by compurgation.

Again, it must be borne in mind that the original common law rule that no party or person interested in the event was a competent witness before the tribunal-a rule only relaxed within the last half century, was a rule without which probably trial by jury could never have survived as the fittest tribunal. At any rate, the insistence upon the rule for centuries was probably much better founded in good reason and accurate knowledge of the conditions of the environment than would be admitted by Bentham.

Thus through the centuries of the development of municipal law, we may trace a struggle for existence between trial by battle, modified private war, and trial by court or jury-arbitration in the settlement of the disputes of men, bearing a strict analogy to the existing struggle for existence in international law between the system of trial of international causes by war and by international arbitration. God grant that as in the case of municipal law the system of court trial has survived as the fittest institution and superseded the former cruel and barbarous manner of settling issues, that so likewise in the law of nations the system of arbitration shall survive and supersede the cruel and barbarous system of deciding quarrels by trial by public war.

TWO CONDITIONS OF SURVIVAL OF COURT TRIAL-ARBITRATION

The analogy points out two conditions under which court trial has superseded private war and trial by battle, which conditions, if we desire to have international arbitration supersede public war, must be striven for to obtain that end.

These conditions are that private war existed so long as there was no central authority compelling submission of the quarrels of men to courts. That it even existed after courts were established in the mode of trial by combat, and that it only disappeared through the strong arm of the king in his endeavor to prevent the loss of his subjects in duels and frays and to keep them to use their energies in defense of the state instead of allowing them to be wasted in mutual destruction of each other.

So the first prerequisite of a proper system of international arbitration should be the establishment, in connection with a permanent court, of a permanent central power capable of enforcing submission of quarrels to the court and compliance with its decrees.

In the present age, however, the hope of the establishment of such a power is almost Utopian; though it must come some day if the evolution of nations is to follow the evolution of man.

Some slight approach to a central power of the character named is now arrived at by treaties and dreibunds when several important states unite for the purpose of protecting their joint interests in regard to public questions.

Again, the power of public opinion, volatile and evanescent as it is, is nevertheless, a strong moral force acting upon states, compelling them to observe the principles of morality in carrying out the covenants of treaties when awards have been made against them; and so compelling the execution of the arbitrator's mandate.

As conditions exist, however, it would be useless to strive for Utopia. We may merely recognize the lines of true development, and can only hope to see them traveled in the dim future.

There is a second lesson to be drawn from the evolution of systems of trial in municipal law and its teaching should be followed so far as possible in advancing the interests of arbitration under the law of nations. Causes which interfere with the validity and accuracy and the equity of the system of arbitration we practice, must be removed in so far as we may possibly accomplish their removal if we desire arbitration to survive as against war in the struggle for existence. For the nations of the world are only tentatively committed to this great advance of the present constitution of the Hague tribunal; the court is still merely an experiment, an experiment under conditions, unfavorable to giving the experiment a fair chance to survive.

We have shown above why the Hague tribunal falls far short of being a true permanent court of arbitration. It lacks such qualities through the absence of permanent personnel of its judges; a permanent tenure of office with permanent salary, and the failure to withdraw its judges from all other avocations to attend to the duties of the court alone.

PRESENT SYSTEM OF JOINT COMMISSIONS OF ARBITRATION DEFECTIVE

It now remains to show that as arbitrations have been held heretofore under joint commissions between the nations by the selection from time to time of individuals without much previous training or preparation as judges, chosen in one or two fugitive instances, and who,

on the decision of the case, sink back again into the position of the laity from which they sprang, we have an improper and poor system from which the best results, or even good results, cannot be well expected.

It is maintained that the awards of these tribunals have been full of human error, and to that extent the cause of international arbitration has suffered so that its survival in the face of competition from war has been rendered uncertain and precarious. To prove the truth of this assertion, we now cite a few examples. These are taken from the international arbitrations of private claims. We purposely abstain from bringing in question any of the great cases where public interests were involved, such as the Alabama award, the fur seal arbitrations and others. To criticise the decision of any of these would be to draw into a discussion intended to be strictly academic the disturbing influences of national bias and passions where the great interests at stake cloud clear judgment in critic and audience, and invite a concurrence or rejection of the critic's views equally untrustworthy and useless from a scientific point of view. Again, it would be impossible, in the space of this article, to prove the validity of any criticism made on such a case on account of the multiplicity of the facts and arguments involved.

We therefore select awards on private claims where our readers, through lack of national bias or pre-judgment, will be the better able to follow the argument and approve or disapprove of the justice of our criticism.

MISCARRIAGES OF JUSTICE ARISING FROM IMPROPER AWARDS OF INTERNATIONAL ARBITRATIONS UNDER THE PREVAILING SYSTEM

1. FRAUD IN THE ARBITRATORS

The United States and Venezuelan Commission of 1866

Under the convention between the United States and Venezuela of April 25, 1866, a joint commission passed on forty-nine claims against Venezuela of the nominal amount of $4,823,273.31. (2 Moore Int. Arb., 1660.) It made awards upon twenty-four claims to the amount of $1,253,310.30, and rejected twenty-five claims. (Id.)