ARBITRATION FROM ANCIENT TIMES TO THE JAY TREATY OF 1794
126. General considerations . -- Passing from the meager experiences of Rome with arbitration, we take up very briefly the long period extending to the beginning of the Middle Ages. This, in fact, furnishes us with but few examples which have survived historically of anything approaching an international tribunal.
Mérignhac informs us1 that the barbarian world recognized the usage of arbitration. Procopius cites the example of the Gepidae who proposed an arbitration to the Lombards, declaring that it was unjust to use violence toward those who demanded a judge. Cassiodorus reports that the ambassadors of Theodoric, king of the Ostrogoths, carried letters from their master to the kings of the Heruli and the Varnes, praying them to join with them and the envoys of Gondebaud to invite Clovis, king of the Franks, to renounce war against the Visigoths and accept the arbitration of the united kings. This step was not in vain and Clovis in fact consented to an agreement.2
127. Influence of the church . -- From a practical point of view the earliest and most important influence tending toward arbitration was that of the Papacy. Revon3 finds that the rôle of the Papacy in the Middle Ages was superb; that while the jurist might question its methods of action, the historian was obliged to admit that the end attained was great. "The excesses, even, of the court of Rome," says Chateaubriand, "have served to extend the general principles of the rights of peoples."
Of course when the power of the church first commenced to be exercised in this direction there was no such thing as formal international law, the title itself being entirely unknown. Nevertheless, the fact that arbitration was indulged in indicates that the thing existed even though the name were unknown, for if the arbitrators were to act at all as judges it must have been on the theory either of the existence of a law of nations or of power in them to create and apply the law under the particular circumstances.
This remark, however, is not to be understood as carrying the same meaning as it would applied to the affairs of today, because the papacy____________________