labelled as an integral part of our territory, and no sensible man would pretend that it is so. If the tribunal were rightly constituted, and the specified majority fairly settled-and the two negotiators are really not far apart on these two points-there should be little difficulty in finding words for the territorial cases to be excepted from obligatory arbitration, and demanding special agreement. A tribunal would be very worthless if, with proper conditions as to its machinery and working such as are indicated in these papers, it could not be trusted -we are talking of the American continent, not the African-to settle such territorial cases as Lord Salisbury has in his mind.

Lord Salisbury suggests the conclusion of a Convention for referring to arbitration secondary or non-territorial claims, such as claims by individuals for damages or indemnity, questions affecting diplomatic or consular privileges, alleged rights of fishery, and the like. Here both governments agree that an arbitrator's award might be final; and Lord Salisbury says that it would be matter for regret if so much as that view at any rate should not be embodied in a treaty.10 To this the pertinent objection is made that the point of national honour might just as well arise, as indeed it has often in the past arisen, in connection with an individual or pecuniary as with a national or a territorial claim. The same difficulty faces us, therefore, in framing a limited, as in a general, convention.

As for the two main grounds on which Lord Salisbury finds himself at a deadlock, I confess that his apprehensions seem exaggerated. In his speech in the House of Lords he recurs to the fear of speculative territorial claims starting up, if arbitration were made obligatory. This might be a well-founded objection, if we were discussing a great scheme of General Treaties. But Mr. Olney is surely right in his remark that a treaty of that sort between Great Britain and the United States being the only thing now contemplated, it is not easy to imagine how its consummation can bring about the perils referred to. From what quarter,' he asks, may these numerous and speculative claims to territory be expected to come? Is the British Government likely to be preferring them against the United States, or the United States' Government likely to be preferring them against Great Britain? Certainly this objection to including territorial controversies within the scope of a General Arbitration Treaty between the United States and Great Britain may justly be regarded, if not as wholly groundless, as at least of a highly fanciful character.'

6

It has been suggested that a clause might be added to the treaty of arbitration upon the basis of existing possessions, definitely prohibiting the raising of any question relating to territory now in undisputed occupation. There is something like this, though not quite the same, in the sixth article of the Pan-American project. At any

10 No. 15, May 18.

rate this ground of anxiety might be removed by the acceptance in the treaty of an authentic map of existing territories. So far as I am aware, the not very momentous dispute about the Alaskan boundary is the only ragged edge in territorial matters between Great Britain and the United States.

Then as to the difficulties of the law which the standing tribunal would be called upon to administer. The rules of international law applicable to territorial controversies, says Lord Salisbury, are uncertain. Without doubt there is the utmost uncertainty about the rules that may rise out of the new doctrines about Hinterland and spheres of influence. But these doctrines, at any rate, have no application to any boundary disputes that now exist or are likely to arise on the two continents of America. Nor, says Mr. Olney, is it to be admitted that, so far as territorial disputes are likely to arise between Great Britain and the United States, the accepted principles of international law are not adequate to their intelligent and just solution.

6

On the critical point of settlements, each case should be left to depend upon its own facts. A State which in good faith colonises as well as occupies, brings about large investments of capital and founds populous settlements, would justly be credited with a sufficient title in a much shorter space than a State whose possession was not marked by any such changes of status.'

The truth is that the creation of a permanent tribunal would be the best way of improving the rules of what is called international law. Sir Henry Maine has some weighty remarks on the advantages of a permanent court or board of arbitrators over occasional adjudicators appointed ad hoc. He is arguing from the memorable Geneva arbitration upon what are known as the Alabama claims. He does not deny that this famous proceeding conferred great benefit for the moment both on Great Britain and the United States, but he insists that the tribunal did not look at the subject in all its bearings, and forgot the future effect of their award in the particular case upon the rights of neutrals-the neglect of which does more than anything else to enlarge the area of maritime wars. A permanent board, well constituted, could be better trusted to adjust its awards to the entire body of international principles, distinctions, and rules, ... and it might be employed more freely as a body of referees on critical questions which are now left to themselves for want of any authority to which their consideration might be committed.' 11 In short, a permanent board is the only hope of building up coherently that fabric of international rules about territorial claims, the non-existence of which is one of Lord Salisbury's main arguments against the proposals before him.

6

To insist upon a plan which shall make a miscarriage of justice 11 Lectures on International Law (1888), p. 220. The whole chapter deserves to be read in connection with the present discussion.

impossible is of course equivalent to throwing up the task. Miscarriages of justice happen in law courts, but law courts, with all their imperfections, are better than duels and free fights. What we have to ask ourselves, among other things, is whether in any arbitration that could be held under treaty between ourselves and the United States, we can possibly suffer any detriment of honour, of material interest, or in respect of any principle of national strength, integrity and power, that would be at all or in any degree comparable to that which would be inflicted on both nations by war. This thought is the strongest stimulus to further the continued effort in the task that Lord Salisbury has undertaken. Defects in the tribunal, such as experience might reveal, could be remedied. It is not necessary that the Treaty should be perpetual: Mr. Olney himself suggests that it should be terminable after a short term of years on notice by either party. If the principle of arbitration and a permanent tribunal were once established, and with reasonable securities and safeguards embodied in practical shape, that in itself would be an immense step towards lessening the chances of war, even in cases which lay outside the specific operations of the tribunal.

The things to be done are to frame the exception clause, which, though difficult, is not beyond the expert skill of Lord Salisbury and Mr. Olney; and to shape the constitution and functions of the tribunal, as to which the two ministers could evidently come to an understanding in twenty-four hours. If these two things are done, the award should be final, or else we might almost as well or better leave the project alone.

To leave it alone would, in the opinion of the present writer, be nothing short of a disaster to one of the greatest causes now moving the Western world. If Lord Salisbury fails, the question, we may be sure, will be set fatally back for many a year to come. Congress and Parliament may go on passing benevolent resolutions in favour of arbitration in the future, as they have in the past; but everybody will feel that no such favourable moment is likely soon to recur. Even the indirect consequences of failure will be highly mischievous to the general interests of peace. It is to be fervently hoped, therefore, that the Prime Minister will strenuously persist in the most important enterprise that he has ever had in his hands.

JOHN MORLEY.

WHY SOUTH AFRICA CAN WAIT

TO THE EDITOR OF THE NINETEENTH CENTURY'

SIR, Mr Edward Dicey contributed an article to the May number of your Review, in which he advocates a policy of force against the South African Republic; a policy the only possible result of which would be to envelope South Africa in the flames of war. It is difficult to suppose that he will find many sensible men to agree with him; or that moderate-minded men will not recognise the fact that hitherto Transvaal affairs have been presented to the British public almost exclusively from an anti-Transvaal point of view, and that a great deal remains to be said on the other side. It is my intention at an early date to publish a short review of British policy towards the two South African Republics, as viewed from the Boers' standpoint, in the pages of your Review, should you be willing to afford me the space required for the purpose; meanwhile it may be allowed to me to make a few remarks on the article in question. Having only just read it, and having to forward this communication at once, I am unable at present to attempt fully toreply to Mr. Dicey's arguments and allegations.

As regards the footing upon which the two languages, Dutch and English, are placed in the Cape Colony, the facts are these. About twenty years after the acquisition of that colony by Great Britain, and whilst the overwhelming majority (at least seven-eighths) of the population understood only Dutch, an order was issued by the Imperial Government that from a certain date all official documents, and from a certain other date, three years thereafter, all proceedings in courts of law, should be exclusively in English. This was done in spite of the remonstrances of the Dutch-speaking population. A couple of years afterwards a notice was issued that all documents addressed to the Government must be written in English, or have a translation attached, otherwise they would be returned to those who sent them. Great inconvenience, of course, resulted to the Dutch-speaking inhabitants of the country; in one instance all criminal cases were removed from a country town by one of the judges, because though the prisoners and witnesses spoke Dutch only, a sufficient number of English-speaking men could not be found to form a jury. Some years afterwards, however, the difficulty thus experienced in respect to jurymen was removed by an ordinance. In 1853 a constitution was granted to the Cape Colony, one of the provisions of which was that no other language than English should be used in either of the Houses of Parliament, and that their proceedings should be recorded in that language. In 1872 responsible government was introduced into that colony; and it was not till 1882 that the Dutch-speaking population, being in a position to command a majority in Parliament, first secured the same rights for their language as the English enjoyed. This was effected in the face of strong opposition; the present Premier of the Cape Colony, I believe I am not wrong in saying, being one of those most bitter in their hostility to the placing of the two languages upon a footing of equality. Even as

it now is, the two languages do not stand side by side upon anything like equal terms; for instance, all University, Civil Service, and school examinations are conducted in English, so that the children of Dutch-speaking parents have to prosecute their studies in an acquired language. The Dutch language shows, indeed, a marvellous vitality considering that under such circumstances of discouragement and repression it has not utterly perished. Now, if this was the policy adopted in the Cape Colony for so many years towards the old inhabitants of the country forming the industrial backbone of that colony, how absurd it is to wish to deal out death and destruction to the South African Republic, because, amongst other reasons, it does not at once grant equal rights in respect of language to British subjects, who came into that country well knowing that Dutch was there the official language! Should there hereafter be a sufficiently large influx of Germans or of Chinese into that country, it might possibly be found difficult to withstand a similar demand made on their behalf; and it is questionable whether in such a case those who now claim equal rights in respect of language would so readily grant the same privilege to others.

Now, I do not wish for one moment to suggest that concessions on the score or language should not be made to the English-speaking population, or that the Dutch-speaking community should do to others what has been done to itself, but at all events I make free to think that any person, before making comparisons between the Cape Colony and the South African Republic unfavourable to the latter, ought at least to have a clear grasp of the actual state of affairs. If it is just that concessions should be made, the Afrikander sense of justice will, if allowed fairplay, see to it that those concessions are effected; and the less talk there is of force and of violence, the sooner they will be made.

As regards the franchise (supposing this not to be an entirely fictitious grievance and that Mr. Lionel Philips was wrong in assuring his correspondent, Mr. Beit, that he did not 'think many people care a fig about it '), it is surely absurd also to compare the case of the Cape Colony, where an old-established and perfectly loyal Dutch-speaking population enjoy the franchise, and the case of the Transvaal, with a new population, the vast majority of whom knew, or ought to have known, at the time they came thither, exactly what their political status there would be, and who men like Mr. Dicey, I have very little doubt, in their heart of hearts desire should not be loyal to the Government of the country. Mr. Chamberlain is reported to have said, 'Time is on our side'-that is to say, on the side of the British Government; he is also stated to have advised a modified oath of allegiance' (!); and, most curious of all, is very anxious that British subjects should enjoy the privilege of casting off their allegiance to the British Crown. I think better perhaps of Englishmen than Mr. Dicey does, and believe that the great majority of British subjects who shall in course of time have become Transvaal citizens will be perfectly loyal to their new allegiance; but taking all these matters into consideration, as also the manner in which the annexation of the country was at one time effected, surely any impartially minded man must see that the question is for the Transvaal one of very great difficulty. That if patience is exercised the difficulty will be overcome there can be no reasonable doubt; but badgering and bullying the Government of the Transvaal will not bring about that consummation. It is perhaps an exercise of charity to believe that Mr. Dicey really desires that it should be brought about; for his mind seems bent upon a war the progress of which he can calmly watch from afar, at a distance of 6,000 miles

away.

I cannot animadvert in detail upon or controvert any of Mr. Dicey's further allegations in support of his plea for war; if he be not the devil's advocate, he has certainly been doing devil's work. He disagrees, as a political economist, with the Transvaal Government as to the value of concessions, and would apparently,