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Les Sanctions de L'Arbitrage International. Par Jacques Dumas, Docteur In Droit, Procureur de la Republique à Rethel. Avec une préface de M. D'Estournelles de Constant, 1906, Senateur, Président du Groupe Parlementaire de L'Arbitrage International. Paris. A. Pedone.

There are abundant evidences in the remains of ancient Greek and Roman literature that the resort to arbitration was practiced not only for the settlement of disputes between private parties but also between states.

Under the Roman rule, the mediation or arbitration of the senate or of popular leaders, like Pompey, was sometimes invoked by and between differing states, princes and leaders of contending factions. But these arbitrations, which were generally conducted with the semblance of fairness, were often treated and used, as convenient political agencies, to strengthen the hand of the dominant power.

There are numerous instances of the resort to arbitration during the middle ages, for the settlement of such differences, but they were mostly between petty princes and states and of a minor character. In the following ages the recourse to arbitration grew less frequent.

Francis the First and the Swiss Cantons, in the sixteenth century, set the first example in modern times of a permanent treaty of arbitration. In the seventeenth century, Oliver Cromwell, so fortunate in all the incidents and accidents of his career, in the association of his name with reforms of a great and permanent character, made a treaty with the the states of the Netherlands, which provided for a fair and friendly arbitration of differences between those states and the commonwealth.

But it was reserved for the nineteenth century rapidly to develop into what may now justly be called a usage of nations-since it received the sanction of an international treaty in 1899-the resort to arbitration in many cases of a nature that in former times could only have been solved by the sword. At the same time there has been manifested a marked tendency towards the creation of arbitral tribunals of a more severely judicial character and the assimilation of their procedure to that of the civil courts. The improvement in the methods, and the extension of the practice have corresponded to the broader, more just and enlightened ideas of our advancing civilization.

But the vital principles remain the same; and the problems which have been awaiting solution continue to tax the ingenuity of statesmen and jurists who have aspired to secure the same impartial justice in the determination of disputes between states, as between private parties.

Among those problems, more or less real or imaginary, the want of a formal sanction for the sentences of arbitral tribunals continues to be agitated, even though numerous instances of the voluntary execution of arbitral awards by the losing parties during the last century, have demonstrated the needlessness of formal penaties to secure their performance. For, a new force has entered into the domain of international politics and has furnished an all-sufficient guaranty of the voluntary discharge of arbitral awards; a power more imposing in its collected influence than fines, imprisonments, interdicts, or blockades, visited by offended upon offending states. The national humiliation and the political and commercial inconveniences and prejudices which a nation must suffer, if it disregards its plighted faith and its solemn international obligations, are so incalculable and injurious that no enlightened government can long fail to observe them.

Monsieur Dumas, in an octavo volume of over four hundred pages, has made an elaborate study of the subject. He gives a lucid and elegant historical sketch of the theory and practice of sanctions, beginning with the Amphictyonic Council and coming down to the present day. He considers them in their various aspects, as moral, material, civil, penal and political. Among the moral sanctions, he classes excommunications and the oath, public opinion and the plighted word; and among the material sanctions those known to public law as retorsion and reprisals, the pacific blockade, siege and war. Among the civil sanctions are the seizure of property, movable and immovable, sureties, hostages, pledges and mortgages. Thus far, Monsieur Dumas treats of certain definite and well known sanctions which have been tried. But public opinion, the author justly says, is

the judge of justice and the most efficient sanction of arbitration.

Public opinion is in turn safe-guarded against its own caprices and errors by the principle of liberty, freedom of speech, of the press, of association, of assembly and petition. Such are the sources, the agency and effects of public opinion, characterized by Monsieur Léon Bourgeois

as a new power; that of universal conscience which draws its inspiration from the essential principles of morality and of law, in whose stability and force it shares and to which it owes its constant and beneficent action.

The analysis of the nature, operation and influence of public opinion is admirable, but it is to be regretted that the author took occasion to exploit a conspicuous weakness of the French national character, in the treatment of so broad a topic as international arbitration. It hardly seems necessary again to remind the world of the moral superiority of the French over all other people; a task which has already been done so completely by Messieurs Guizot, Hugo, and other distinguished Frenchmen of letters. According to Monsieur Dumas

"the national opinion of the English suffered an aberration during the sombre epoch of the war of the Transvaal; and the United States suffered the same syncope in the affairs of Cuba and the Philippines. Afterwards was seen that of Japan in a paroxysm of madness. But in all these circumstances, was international opinion ever at fault for a single moment? There were diverse sympathies but only a single judgment. International opinion was right but it erred in not acting, because it did not know how to act." But he adds "international opinion will some day be able to act. Have we not had a proof of it in the Dreyfus affair.

"This voice of international opinion was heard, comprehended and believed in France; and it will be, before history, one of the grandest honors of France that she was able to respond so promptly to the appeals of reason and justice. Neither England nor the United States, in similar circumstances, would have been able to reconquer so soon by an act of political probity the esteem and confidence of the universe. France alone has hitherto had this merit."

The author might well have added that neither in Great Britain nor in United States could the Dreyfus affair have occurred. His excellent work would certainly have lost nothing in dignity by the omission of all invidious allusions either to Great Britain, Japan or the United States. They were hardly to be expected in a work, dedicated to the author of the second Hague conference who, on the grounds of humanity, was one of the earliest and most ardent advocates of the intervention in Cuba; in a work, professing to treat of a question of exclusively international interest. These instances, as given by the author, could not illustrate and enforce the theme, inasmuch as they contain assumptions of fact not generally accepted and which involve a consideration of motives, antecedent and concurrent facts and circumstances and results, before final judgment could safely be pronounced. Are the people of Cuba better governed, more free, more prosperous, and happy under the present régime than they were under the ancient?

We are too near these events to presume to declare what will be the impartial and colorless judgment which will be finally rendered by the international tribunal of public opinion. But a very just and striking instance is given by the author of the persistent and disastrous effects of public opinion on the fortunes of any nation which has greatly erred through the lust of conquest and martial glory.

States are less assured of impunity than the individual for they endure long enough to suffer the consequences of their acts. Thiers asked, after September 4, 1870, upon whom the Germans were making war, since the empire no longer existed. Ranke answered "upon Louis XIV." and he might have added "and Napoleon First."

The author could not resist the temptation to add,

There is more than one chance that Germany will expiate some day her violences of 1870 as cruelly as France has expiated the mistakes of her former governments.

Monsieur Dumas has pointed out the inadequate and unsatisfactory nature of the other sanctions mentioned; and he has at the same time well vindicated the competency of public opinion to sanction the performance of arbitral awards; but the aspiration for

another voice than that of the press and parliaments for the expression of international opinion

could hardly be satisfied by an international "college of censors," created as an official organ of that opinion for, as the author justly says,

it would be illusory to confide to governments the exercise of censorship.

The author finally leaves the subject, after much learned and interesting discussion, where he found it. No method is proposed, no suggestion is offered of the solution of the question of an official organ for the authorative expression of the opinion of the civilized world. It is to be doubted whether that opinion will not remain more powerful, more efficient and cogent in its unorganized condition as it gathers from the four quarters of the globe and pours out its storm upon a government which engages in any war, avoidable by arbitration, or which fails to observe the sentence of the tribunal.

Notwithstanding the introduction of topics of a polemical nature and the occasional want of breadth and elevation of treatment of the subject, the work of Monsieur Dumas is an instructive and original contribution to the subject of which he treats. It amply vindicates the opinion expressed in the preface by Baron D'Estournelles that,

it is opinion that has led governments to accept the resort to arbitration; it is opinion which will oblige them to execute the arbitral sentences voluntarily invoked by them.

W. L. PENFIELD.

Report on the Subject of Citizenship, Expatriation, and Protection Abroad. By Mr. James B. Scott, Solicitor for the Department of State, Mr. David Jayne Hill, Minister of the United States to the Netherlands, and Mr. Gaillard Hunt, Chief of the Passport Bureau. Accompanying the Letter of the Secretary of State to the Speaker of the House of Representatives, December 18, 1906. Pp. 35, with appendices, 538. Government Printing Office. 1906. H. of R. Doc. No. 326, 59th Congress, Second Session.

Pursuant to the recommendation of the committee on foreign affairs of the house of representatives (Report no. 4784, 59th Congress, First session) Acting Secretary of State Bacon, on July 3, 1906, constituted a board to inquire into the laws and practices regarding citizenship, expatriation, and protection abroad, and to report recommendations for legislation to be laid before congress.

The personnel of the board constituted by the acting secretary of state, viz: Mr. James Brown Scott, solicitor for the department of state, Dr. David Jayne Hill, American minister at the Hague, and Mr. Gaillard Hunt, chief of the passport bureau, all gentlemen of practical experience in dealing with questions relating to citizenship, and each having had, from his position, to study such questions from a different view point, was a guaranty that the investigation would be conducted along practical lines. The result of their examination, which is embodied in a report and recommendations covering thirty-five pages, and appendices of five hundred pages, is an exceedingly valuable contribution to the literature relating to the important subject of citizenship; and nearly all of the recommendations made by the board were carried into effect by legislation enacted by the congress that has just adjourned. Secretary Root, in transmitting the report and recommendations to Speaker Cannon, commended it

as a very clear and thorough exposition of this most important subject, upon which it seems to be generally agreed legislation is much needed.

The first appendix consists of a thorough memorandum or digest of cases relating to citizenship of the United States. The classification adopted is the logical one of citizenship by birth, citizenship by naturalization, and loss of citizenship by expatriation or otherwise. Under the head of Citizenship by Birth, the subject is considered under the subheads of Children Born within the Territory of the United States, and Children Born Abroad. Under the subhead of Children Born within the Territory of the United States, there is a further subdivision of Inhabitants not Aliens: A, Indians; B, Africans; C, Mixed Races; D, Porto