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ENCYCLOPAEDIA BRITANNICA
A DICTIONARY OF ARTS, SCIENCES, LITERATURE
AND GENERAL INFORMATION
ELEVENTH EDITION
VOLUME II, SLICE IV
Aram, Eugene to Arcueil
ARTICLES IN THIS SLICE:
ARAM, EUGENE ARCH, JOSEPH
ARAMAIC LANGUAGES ARCH
ARANDA, PEDRO PABLO DE BOLEA ARCHAEOLOGY
ARAN ISLANDS ARCHAEOPTERYX
ARANJUEZ ARCHAISM
ARANY, JANOS ARCHANGEL (government of Russia)
ARAPAHO ARCHANGEL (town of Russia)
ARARAT (mountains) ARCHBALD
ARARAT (town of Australia) ARCHBISHOP
ARAROBA POWDER ARCHCHANCELLOR
ARAS ARCHDEACON
ARASON, JON ARCHDUKE
ARATOR ARCHEAN SYSTEM
ARATUS (Greek statesman) ARCHELAUS OF CAPPADOCIA
ARATUS (Greek didactic poet) ARCHELAUS (king of Judaea)
ARAUCANIA ARCHELAUS (king of Macedonia)
ARAUCANIANS ARCHELAUS OF MILETUS
ARAUCARIA ARCHENHOLZ, JOHANN WILHELM VON
ARAUCO ARCHER, WILLIAM
ARAVALLI HILLS ARCHERMUS
ARAWAK ARCHERY
ARBACES ARCHES, COURT OF
ARBE ARCHESTRATUS
ARBELA ARCHIAC, ETIENNE JULES DE SAINT SIMON
ARBER, EDWARD ARCHIAS, AULUS LICINIUS
ARBITRAGE ARCHIDAMUS
ARBITRATION ARCHIL
ARBITRATION, INTERNATIONAL ARCHILOCHUS
ARBITRATION AND CONCILIATION ARCHIMANDRITE
ARBOGAST ARCHIMEDES
ARBOIS ARCHIMEDES, SCREW OF
ARBOIS DE JUBAINVILLE, HENRI D' ARCHIPELAGO
ARBOR DAY ARCHIPPUS
ARBORETUM ARCHITECTURE
ARBORICULTURE ARCHITRAVE
ARBOR VITAE ARCHIVE
ARBOS, FERNANDEZ ARCHIVOLT
ARBOUR ARCHIVOLT
ARBROATH ARCHPRIEST
ARBUTHNOT, ALEXANDER ARCHYTAS
ARBUTHNOT, JOHN ARCIS-SUR-AUBE
ARCACHON ARCOLA
ARCADE ARCOS DE LA FRONTERA
ARCADELT ARCOSOLIUM
ARCADIA ARCOT
ARCADIUS (Roman emperor) ARCTIC
ARCADIUS (Greek grammarian) ARCTINUS
ARCELLA ARCTURUS
ARCESILAUS ARCUEIL
ARAM, EUGENE (1704-1759), English scholar, but more famous as the
murderer celebrated by Hood in his ballad, the _Dream of Eugene Aram_,
and by Bulwer Lytton in his romance of _Eugene Aram_, was born of humble
parents at Ramsgill, Yorkshire, in 1704. He received little education at
school, but manifested an intense desire for learning. While still
young, he married and settled as a schoolmaster at Netherdale, and
during the years he spent there, he taught himself both Latin and Greek.
In 1734 he removed to Knaresborough, where he remained as schoolmaster
till 1745. In that year a man named Daniel Clark, an intimate friend of
Aram, after obtaining a considerable quantity of goods from some of the
tradesmen in the town, suddenly disappeared. Suspicions of being
concerned in this swindling transaction fell upon Aram. His garden was
searched, and some of the goods found there. As, however, there was not
evidence sufficient to convict him of any crime, he was discharged, and
soon after set out for London, leaving his wife behind. For several
years he travelled through parts of England, acting as usher in a number
of schools, and settled finally at Lynn, in Norfolk. During his travels
he had amassed considerable materials for a work he had projected on
etymology, to be entitled a _Comparative Lexicon of the English, Latin,
Greek, Hebrew and Celtic Languages_. He was undoubtedly an original
philologist, who realized, what was then not yet admitted by scholars,
the affinity of the Celtic language to the other languages of Europe,
and could dispute the then accepted belief that Latin was derived from
Greek. Aram's writings show that he had grasped the right idea on the
subject of the Indo-European character of the Celtic language, which was
not established till J.C. Prichard published his book, _Eastern Origin
of the Celtic Nations_, in 1831. But he was not destined to live in
history as the pioneer of a new philology. In February 1758 a skeleton
was dug up at Knaresborough, and some suspicion arose that it might be
Clark's. Aram's wife had more than once hinted that her husband and a
man named Houseman knew the secret of Clark's disappearance. Houseman
was at once arrested and confronted with the bones that had been found.
He affirmed his innocence, and, taking up one of the bones, said, "This
is no more Dan Clark's bone than it is mine." His manner in saying this
roused suspicion that he knew more of Clark's disappearance than he was
willing to admit. He was again examined, and confessed that he had been
present at the murder of Clark by Aram and another man, Terry, of whom
nothing further is heard. He also gave information as to the place where
the body had been buried in St Robert's Cave, a well-known spot near
Knaresborough. A skeleton was dug up here, and Aram was immediately
arrested, and sent to York for trial. Houseman was admitted as evidence
against him. Aram conducted his own defence, and did not attempt to
overthrow Houseman's evidence, although there were some discrepancies in
that; but made a skilful attack on the fallibility of circumstantial
evidence in general, and particularly of evidence drawn from the
discovery of bones. He brought forward several instances where bones had
been found in caves, and tried to show that the bones found in St
Robert's Cave were probably those of some hermit who had taken up his
abode there. He was found guilty, and condemned to be executed on the
6th of August 1759, three days after his trial. While in his cell he
confessed his guilt, and threw some light on the motives for his crime,
by asserting that he had discovered a criminal intimacy between Clark
and his own wife. On the night before his execution he made an
unsuccessful attempt at suicide by opening the veins in his arm.
ARAMAIC LANGUAGES, a class of languages so called from Aram, a
geographical term, which in old Semitic usage designates nearly the same
districts as the Greek word Syria. Aram, however, does not include
Palestine, while it comprehends Mesopotamia (Heb. Aram of two rivers), a
region which the Greeks frequently distinguish from Syria proper. Thus
the Aramaic languages may be geographically defined as the Semitic
dialects originally current in Mesopotamia and the regions extending
south-west from the Euphrates to Palestine. (See SEMITIC LANGUAGES;
SYRIAC; TARGUM.)
ARANDA, PEDRO PABLO ABARCA DE BOLEA, COUNT OF (1719-1798), Spanish
minister and general, was born at the castle of Sietamo, a lordship of
his family near Huesca in Aragon, on the 1st of August 1719. The house
of Abarca was very ancient, a fact of which Don Pedro, who never forgot
that he was a "rico hombre" (noble) of Aragon, was deeply conscious. He
was educated partly at Bologna and partly at the military school of
Parma. In 1740 he entered the army as captain in the regiment
"Castilla," of which his father was proprietary colonel. On the death of
his father he became colonel, and served in the Italian campaigns of the
War of the Austrian Succession. In 1749 he married Dona Ana, daughter of
the 9th duke of Hijar, by whom he had one son, who died young, and a
daughter. During the following years he travelled and visited the camp
of Frederick the Great, whose system of drill he admired and afterwards
introduced into the Spanish army. After a short period of diplomatic
service in Portugal, where his exacting temper made it impossible for
him to agree with the premier, Pombal, he returned to Madrid, was made a
knight of the Golden Fleece, and director-general of artillery--a post
which he threw up, together with his rank of lieutenant-general, because
he was not allowed to punish certain fraudulent contractors. The king,
Ferdinand VI., exiled him to his estates, but Charles III. on his
accession took him into favour. He was again employed in diplomacy, and
then appointed to command an army against Portugal in 1763. In 1764 he
was made governor of Valencia. When in 1766 the king was driven from his
capital in a riot, he summoned Aranda to Madrid and made him president
of the council, and captain-general of New Castile. Until 1773 Aranda
was the most important minister in Spain. He restored order and aided
the king most materially in his work of administrative reform. But his
great achievements, which gave him a high reputation throughout Europe
with the philosophical and anti-clerical parties, were his expulsion of
the Jesuits, whom the king considered responsible for the riot of 1766,
and the active part he took in the suppression of the order. Aranda had
come much under foreign influence by his education and his travels, and
had acquired the reputation of being a confirmed sceptic. By Voltaire
and the Encyclopaedists he was erected into a hero from whom great
things were expected. His ability, his remarkable capacity for work,
and his popularity made him indispensable to the king. But he was a
trying servant, for his temper was captious and his tongue sarcastic,
while his aristocratic arrogance led him to display an offensive
contempt for the _golillas_ (the stiff collars), as he called the
lawyers and public servants whom the king preferred to choose as
ministers, and he permitted himself an amazing freedom of language with
his sovereign. At last Charles III. sent him as ambassador to Paris in a
disguised disgrace. Aranda held this position till 1787, but in Paris he
was chiefly known for his oddities of manner and for perpetual wrangling
with the French on small points of etiquette. He resigned his post for
private reasons. In the reign of Charles IV., with whom he had been on
familiar terms during the life of the old king, he was for a very short
time prime minister in 1792. In reality he was merely used as a screen
by the queen Maria Louisa and her favourite Godoy. His open sympathy
with the French Revolution brought him into collision with the violent
reaction produced in Spain by the excesses of the Jacobins, while his
temper, which had become perfectly uncontrollable with age, made him
insufferable to the king. After his removal from office he was
imprisoned for a short time at Granada, and was threatened with a trial
by the Inquisition. The proceedings did not go beyond the preliminary
stage, and Aranda died at Epila on the 9th of January 1798.
See Don Jacobo de la Pezuela in the _Revista de Espana_, vol. xxv.
(1872); Don Antonio Ma. Fabie, in the _Diccionario general de politica
y administration_ of Don E. Suarez Inclan (Madrid, 1868), vol. i.; M.
Morel Fatio, _Etudes sur l'Espagne_ (2nd series, Paris, 1890).
(D. H.)
ARAN ISLANDS, or SOUTH ARAN, three islands lying across Galway Bay, on
the west coast of Ireland, in a south-easterly direction, forming a kind
of natural breakwater. They belong to the county Galway, and their
population in 1901 was 2863. They are called respectively--beginning
with the northernmost--Inishmore (or Aranmore), the Great Island;
Inishmaan, the Middle Island; and Inisheer, the Eastern Island. The
first has an elevation of 354 ft., the second of 259, and the third of
202. Their formation is carboniferous limestone. These islands are
remarkable for a number of architectural remains of a very early date.
In Inishmore there stand, on a cliff 220 ft. high, large remains of a
circular cyclopean tower, called Dun-Aengus, ascribed to the Fir-bolg or
Belgae; or, individually, to the first of three brothers, Aengus,
Conchobar and Nil, who reached Aran Islands from Scotland in the 1st
century A.D. There are seven other similar structures in the group.
Inishmore also bears the name of _Aran-na-naomh_, Aran-of-the-Saints,
from the number of religious recluses who took up their abode in it, and
gave a celebrity to the holy wells, altars and shrines, to which many
are still attracted. No less, indeed, than twenty buildings of
ecclesiastical or monastic character have been enumerated in the three
islands. On Inishmore are remains of the abbey of Killenda. Christianity
was introduced in the 5th century, and Aran soon became one of the most
famous island-resorts of religious teachers and ascetics. The
extraordinary fame of the foundations here has been inferred from the
inscription "VII. Romani" on a stone in the church Teampull Brecain on
Inishmore, attributed to disciples from Rome. The total area of the
islands is 11,579 acres. The Congested Districts Board made many efforts
to improve the condition of the inhabitants, especially by introducing
better methods of fishing. A curing station is established at Killeany,
the harbour of Inishmore.
ARANJUEZ (perhaps the ancient _Ara Jovis_), a town of central Spain, in
the province of Madrid, 30 m. S. of Madrid, on the left bank of the
river Tagus, at the junction of the main southern railways to Madrid,
and at the western terminus of the Aranjuez-Cuenca railway. Pop. (1900)
12,670. Aranjuez occupies part of a wide valley, about 1500 ft. above
the sea. Its formal, straight streets, crossing one another regularly at
right angles, and its uniform, two-storeyed houses were built in
imitation of the Dutch style, under the direction of Jeronimo, marquis
de Grimaldi (1716-1788), ambassador of Charles III. at the Hague. A
rapid in the Tagus, artificially converted into a weir, renders
irrigation easy, and has thus created an oasis in the midst of the
barren plateau of New Castile. On every side the town is surrounded by
royal parks and woods of sycamores, plane-trees and elms, often of
extraordinary size. The prevalence of the dark English elms, first
introduced into the country and planted here by order of Philip II.
(1527-1598), gives to the Aranjuez district a character wholly distinct
from that of other Spanish landscapes; and at an early period, despite
the unhealthy climate, and especially the oppressive summer heat, which
often approaches 100 deg. F., Aranjuez became a favourite residence of
the Spanish court. In the 14th and 15th centuries, the master of the
Order of Santiago had a country seat here, which passed, along with the
mastership, into the possession of the crown of Spain in 1522. Its
successive occupants, from the emperor Charles V. (1500-1558) down to
Ferdinand VII. (1784-1833), modified it according to their respective
tastes. The larger palace was built by Pedro Caro for Philip V.
(1683-1746), in the French style of the period. It overlooks the Jardin
de la Isla, a beautiful garden laid out for Philip II. on an island in
the Tagus, which forms the scene of Schiller's famous drama _Don
Carlos_. The Casa del Labrador, or Labourer's Cottage, as it is called,
is a smaller palace built by Charles IV. in 1803, and full of elaborate
ornamentation. The chief local industry is farming, and an annual fair
is held in September for the sale of live stock. Great attention is
given to the rearing of horses and mules, and the royal stud used to be
remarkable for the beauty of its cream-coloured breed. The treaty of
1772 between France and Spain was concluded at Aranjuez, which
afterwards suffered severely from the French during the Peninsular War.
Here, also, in 1808, the insurrection broke out which ended in the
abdication of Charles IV.
For a fuller description of Aranjuez see D.S. Vinas y Rey, _Aranjuez_
(Madrid, 1890); F. Nard, _Guia de Aranjuez, su historia y descripcion_
(Madrid, 1851), (illustrated); Alvarez de Quindos, _Descripcion
historica del real basque y casa de Aranjuez_ (Madrid, 1804).
ARANY, JANOS (1817-1882), the greatest poet of Hungary after Petofi, was
born at Nagy-Szalonta on the 2nd of March 1817, the son of Gyorgy Arany
and Sara Megyeri; his people were small Calvinist yeomen of noble
origin, whose property consisted of a rush-thatched cottage and a tiny
plot of land. An only son, late born, seeing no companions of his own
age, hearing nothing but the voices of his parents and the hymns and
prayers in the little Calvinist chapel, Arany grew up a grave and
gentle, but by no means an ignorant child. His precocity was remarkable.
At six years of age he went to school at Szalonta, where he read
everything he could lay his hands upon in Hungarian and Latin. From 1832
to 1836 Arany was a preceptor at Kis-Ujszallas and Debreczen, still a
voracious reader with a wider field before him, for he had by this time
taught himself French and German. Tiring of the monotony of a scholastic
life, he joined a troupe of travelling actors. The hardships he suffered
were as nothing compared with the pangs of conscience which plagued him
when he thought of the despair of his father, who had meant to make a
pastor of this prodigal son, to whom both church and college now seemed
for ever closed. At last he borrowed sixpence from the stage-manager and
returned home, carrying all his property tied up in a handkerchief.
Shortly after his home-coming his mother died and his father became
stone-blind. Arany at once resolved that it was his duty never to leave
his father again, and a conrectorship which he obtained at this time
enabled them to live in modest comfort. In 1840 he obtained a notaryship
also, and the same year married Juliana Ercsey, the penniless orphan
daughter of an advocate. The next few happy years were devoted to his
profession and a good deal of miscellaneous reading, especially of
Shakespeare (he learnt English in order to compare the original with his
well-thumbed German version) and Homer. Meanwhile the reactionaries of
Vienna were goading the Magyar Liberals into revolt, and Arany found a
safety-valve for his growing indignation by composing a satirical poem
in hexameters, entitled "The Lost Constitution." The Kisfaludy Society,
the great literary association of Hungary, about this time happened to
advertise a prize for the best satire on current events. Arany sent in
his work, and shortly afterwards was awarded the 25-gulden prize (7th of
February 1846) by the society, which then advertised another prize for
the best Magyar epic poem. Arany won this also with his _Toldi_ (the
first part of the present trilogy), and immediately found himself
famous. All eyes were instantly turned towards the poor country notary,
and Petofi was the first to greet him as a brother. In February of the
following year Arany was elected a member of the Kisfaludy Society. In
the memorable year 1848 the people of Szalonta elected him their deputy
to the Hungarian parliament. But neither now nor subsequently (1861,
1869) would he accept a parliamentary mandate. He wrote many articles,
however, in the gazette _Nepbaratja_, an organ of the Magyar government,
and served in the field as a national guard for eight or ten weeks. In
1849 he was in the civil service of the revolutionary government, and
after the final catastrophe returned to his native place, living as best
he could on his small savings till 1850, when Lajos Tisza, the father of
Kalman Tisza, the future prime minister, invited him to his castle at
Geszt to teach his son Domokos the art of poetry. In the following year
Arany was elected professor of Hungarian literature and language at the
Nagy-Koros gymnasium. He also attempted to write another epic poem, but
the time was not favourable for such an undertaking. The miserable
condition of his country, and his own very precarious situation, weighed
heavily upon his sensitive soul, and he suffered severely both in mind
and body. On the other hand reflection on past events made clear to him
not only the sufferings but the defects and follies of the national
heroes, and from henceforth, for the first time, we notice a bitterly
humorous vein in his writings. Thus _Bolond Istok_, the first canto of
which he completed in 1850, is full of sub-acrid merriment. During his
nine years' residence at Nagy-Koros, Arany first seriously turned his
attention to the Magyar ballad, and not only composed some of the most
beautiful ballads in the language, but wrote two priceless dissertations
on the technique of the ballad in general: "Something concerning
assonance" (1854), and "On Hungarian National Versification" (1856).
When the Hungarian Academy opened its doors again after a ten years'
cessation, Arany was elected a member (15th of December 1858). On the
15th of July 1860 he was elected director of the revived Kisfaludy
Society, and went to Pest. In November, the same year, he started
_Szepirodalmi Figyelo_, a monthly review better known by its later name,
_Koszeru_, which did much for Magyar criticism and literature. He also
edited the principal publications of the society, including its notable
translation of _Shakespeare's Dramatic Works_, to which he contributed
the _Midsummer Night's Dream_ (1864), _Hamlet_ and _King John_ (1867).
The same year he won the Nadasdy prize of the Academy with his poem
"Death of Buda." From 1865 to 1879 he was the secretary of the Hungarian
Academy.
Domestic affliction, ill-health and his official duties made these years
comparatively unproductive, but he issued an edition of his collected
poems in 1867, and in 1880 won the Karacsonyi prize with his translation
of the _Comedies of Aristophanes_ (1880). In 1879 he completed his epic
trilogy by publishing _The Love of Toldi_ and _Toldi's Evening_, which
were received with universal enthusiasm. He died suddenly on the 24th of
October 1882. The first edition of his collected works, in 8 volumes,
was published in 1884-1885.
Arany reformed Hungarian literature. Hitherto classical and romantic
successively, like other European literatures, he first gave it a
national direction. He compelled the poetry of art to draw nearer to
life and nature, extended its boundaries and made it more generally
intelligible and popular. He wrote not for one class or school but for
the whole nation. He introduced the popular element into literature, but
at the same time elevated and ennobled it. What Petofi had done for
lyrical he did for epic poetry. Yet there were great differences between
them. Petofi was more subjective, more individual; Arany was more
objective and national. As a lyric poet Petofi naturally gave expression
to present moods and feelings; as an epic poet Arany plunged into the
past. He took his standpoint on tradition. His art was essentially
rooted in the character of the whole nation and its glorious history.
His genius was unusually rich and versatile; his artistic conscience
always alert and sober. His taste was extraordinarily developed and
absolutely sure. To say nothing of his other great qualities, he is
certainly the most artistic of all the Magyar poets.
See _Posthumous Writings and Correspondence of Arany_, edited by
Laszlo Arany (Hung.), (Budapest, 1887-1889); article "Arany," in _A
Pallas Nagy Lexikona_, Kot 2 (Budapest, 1893); Mor Gaal, _Life of
Janos Arany_ (Hung.), (Budapest, 1898); L. Gyongyosi, _Janos Arany's
Life and Works_ (Hung.), (Budapest, 1901). Translations from Arany:
_The Legend of the Wondrous Hunt_ (canto 6 of _Buda's Death_), by D.
Butler (London, 1881); _Toldi, poeme en 12 chants_ (Paris, 1895);
_Dichtungen_ (Leipzig, 1880); _Konig Buda's Tod_ (Leipzig, 1879);
_Balladen_ (Vienna, 1886). (R. N. B.)
ARAPAHO (possibly from the Pawnee for "trader"), a tribe of North
American Indians of Algonquian stock. They formerly ranged over the
central portion of the plains between the Platte and Arkansas. They were
a brave, warlike, predatory tribe. With the Sioux and Cheyennes they
waged unremitting warfare upon the Utes. The southern divisions of the
tribe were placed (1867) on a reservation in the west of Indian
Territory (now Oklahoma), while the northern are in western Wyoming. The
southern section sold their reservations in 1892 and became American
citizens. The Arapahos number in all some 2000.
See INDIANS, NORTH AMERICAN; H.R. Schoolcraft, _History of the Indian
Tribes of the United States_ (1851-1837, 6 vols.); _Handbook of
American Indians_, ed. F.W. Hodge (Washington, 1907).
ARARAT (Armen. _Massis_, Turk. _Egri Dagh_, i.e. "Painful Mountain,"
Pers. _Koh-i-Nuh_, i.e. "Mountain of Noah,"), the name given to the
culminating point of the Armenian plateau which rises to a height of
17,000 ft. above the sea. The _massif_ of Ararat rises on the north and
east out of the alluvial plain of the Aras, here from 2500 ft. to 3000
ft. above the sea, and on the south-west sinks into the plateau of
Bayezid, about 4500 ft. It is thus isolated on all sides but the
north-west, where a _col_ about 6900 ft. high connects it with a long
ridge of volcanic mountains. Out of the _massif_ rise two peaks, "their
bases confluent at a height of 8800 ft., their summits about 7 m.
apart." The higher, Great Ararat, is "a huge broad-shouldered mass, more
of a dome than a cone"; the lower, Little Ararat, 12,840 ft. on which
the territories of the tsar, the sultan, and the shah meet, is "an
elegant cone or pyramid, rising with steep, smooth, regular sides into a
comparatively sharp peak" (Bryce). On the north and west the slopes of
Great Ararat are covered with glittering fields of unbroken _neve_. The
only true glacier is on the north-east side, at the bottom of a large
chasm which runs into the heart of the mountain. The great height of the
snow-line, 14,000 ft., is due to the small rainfall and the upward rush
of dry air from the plain of the Araxes. The middle zone of Ararat,
5000-11,500 ft., is covered with good pasture, the upper and lower zones
are for the most part sterile. Whether the tradition which makes Ararat
the resting-place of Noah's Ark is of any historical value or not, there
is at least poetical fitness in the hypothesis, inasmuch as this
mountain is about equally distant from the Black Sea and the Caspian,
from the Mediterranean and the Persian Gulf. Another tradition--accepted
by the Kurds, Syrians and Nestorians--fixes on Mount Judi, in the south
of Armenia, on the left bank of the Tigris, near Jezire, as the Ark's
resting-place. There so-called genuine relics of the ark were exhibited,
and a monastery and mosque of commemoration were built; but the
monastery was destroyed by lightning in 776 A.D., and the tradition has
declined in credit. Round Mount Ararat, however, gather many traditions
connected with the Deluge. The garden of Eden is placed in the valley of
the Araxes; Marand is the burial-place of Noah's wife; at Arghuri, a
village near the great chasm, was the spot where Noah planted the first
vineyard, and here were shown Noah's vine and the monastery of St James,
until village and monastery were overwhelmed by a fall of rock, ice and
snow, shaken down by an earthquake in 1840. According to the Babylonian
account, the resting-place of the Ark was "on the Mountain of Nizir,"
which some writers have identified with Mount Rowanduz, and others with
Mount Elburz, near Teheran.
From the Armenian plateau, Ararat rises in a graceful isolated cone far
into the region of perennial snow. It was long believed by the Armenian
monks that no one was permitted to reach the "secret top" of Ararat with
its sacred remains, but on the 27th of September 1829, Dr. Johann Jacob
Parrot (1792-1840) of Dorpat, a German in the employment of Russia, set
foot on the "dome of eternal ice." Ararat has since been ascended by S.
Aftonomov (1834 and 1843); M. Wagner and W.H. Abich (1845); J. Chodzko,
N.W. Chanykov, P.H. Moritz and a party of Cossacks in the service of the
Russian government (1850); Stuart (1856); Monteith (1856); D.W.
Freshfield (1868); James Bryce (1876); A.V. Markov (1888); P. Pashtukhov
and H.B. Lynch (1893). Mr Freshfield thus described the mountain:--"It
stands perfectly isolated from all the other ranges, with the still more
perfect cone of Little Ararat (a typical volcano) at its side. Seen thus
early in the season (May), with at least 9000 ft. of snow on its slopes,
from a distance and height well calculated to permit the eye to take in
its true proportions, we agreed that no single mountain we know
presented such a magnificent and impressive appearance as the Armenian
Giant." There are a number of glaciers in the upper portion, and the
climate of the whole district is very severe. The greater part of the
mountain is destitute of trees, but the lower Ararat is clothed with
birches. The fauna and flora are both comparatively meagre.
Both Great and Little Ararat consist entirely of volcanic rocks, chiefly
andesites and pyroxene andesites, with some obsidian. No crater now
exists at the summit of either, but well-formed parasitic cones occur
upon their flanks. There are no certain historic records of any
eruption. The earthquake and fall of rock which destroyed the village of
Arghuri in 1840 may have been caused by a volcanic explosion, but the
evidence is unsatisfactory.
The name of Ararat also applies to the Assyrian _Urardhu_, the country
in which the Ark rested after the Deluge (Gen. viii. 4), and to which
the murderers of Sennacherib fled (2 Kings xix. 37; Isaiah xxxvii. 38).
The name Urardhu, originally that of a principality which included Mount
Ararat and the plain of the Araxes, is given in Assyrian inscriptions
from the 9th century B.C. downwards to a kingdom that at one time
included the greater part of the later Armenia. The native name of the
kingdom was _Biainas_, and its capital was _Dhuspas_, now Van. The first
king, Sarduris I. (c. 833 B.C.), subdued the country of the Upper
Euphrates and Tigris. His inscriptions are written in cuneiform, in
Assyrian, whilst those of his successors are in cuneiform, in their own
language, which is neither Aryan nor Semitic. The kings of Biainas
extended their kingdom eastward and westward, and defeated the Assyrians
and Hittites. But Sarduris II. was overthrown by Tiglath Pileser III.
(743 B.C.), and driven north of the Araxes, where he made Armavir,
_Armauria_, his capital. Interesting specimens of Biainian art have been
found on the site of the palace of Rusas II., near Van. Shortly after
645 B.C. the kingdom fell, possibly conquered by Cyaxares, and a way was
thus opened for the immigration of the Aryan Armenians. The name Ararat
is unknown to the Armenians of the present day. The limits of the
Biblical Ararat are not known, but they must have included the lofty
Armenian plateau which overlooks the plain of the Araxes on the north,
and that of Mesopotamia on the south. It is only natural that the
highest and most striking mountain in the district should have been
regarded as that upon which the Ark rested, and that the old name of the
country should have been transferred to it.
See also H.B. Lynch, _Armenia_ (1901); Sayce, "Cuneiform Inscriptions
of Lake Van," in _Journal of Royal Asiatic Society_, vols. xiv., xx.
and xxvi.; Maspero, _Histoire ancienne des peuples de l'Orient
classique_, tome iii., _Les Empires_ (Paris, 1899); J. Bryce,
_Transcaucasia and Ararat_ (4th ed., 1896); D.W. Freshfield, _Travels
in the Central Caucasus and Bashan_ (1869); Parrot, _Reise zum Ararat_
(1834); Wagner, _Reise nach dem Ararat_ (1848); Abich, _Die Besteigung
des Ararat_ (1849); articles "Ararat," in Hastings' _Dictionary of the
Bible_, and the _Encyclopaedia Biblica_. (C. W. W.)
ARARAT, a municipal town of Ripon county, Victoria, Australia, 130 m. by
rail W.N.W. of Melbourne. Pop. (1901) 3580. It lies at an elevation of
1028 ft. towards the western extremity of the Great Dividing range. It
is the commercial centre of the north-western grain and wool-producing
district and is also noted for its quartz and alluvial gold-mines.
Excellent wine is made, and flour-milling, leather-working, brick and
candle making and soap-boiling are the chief industries. The district
also yields the best timber in great quantity. Granite, bluestone,
limestone and slate abound in the neighbourhood.
ARAROBA POWDER, a drug occurring in the form of a yellowish-brown
powder, varying considerably in tint, which derives an alternative
name--Goa powder--from the Portuguese colony of Goa, where it appears to
have been introduced about the year 1852. The tree which yields it is
the _Andira Araroba_ of the natural order Leguminosae. It is met with in
great abundance in certain forests in the province of Bahia, preferring
as a rule low and humid spots. The tree is from 80 to 100 ft. high and
has large imparipinnate leaves, the leaflets of which are oblong, about
1-1/2 in. long and 3/4 in. broad, and somewhat truncate at the apex. The
flowers are papilionaceous, of a purple colour and arranged in panicles.
The Goa powder or araroba is contained in the trunk, filling crevices in
the heartwood. It is a morbid product in the tree, and yields to hot
chloroform 50% of a substance known officially as chrysarobin, which has
a definite therapeutic value and is contained in most modern
pharmacopoeias. It occurs as a micro-crystalline, odourless, tasteless
powder, very slightly soluble in either water or alcohol; it also occurs
in rhubarb root. This complex mixture contains pure chrysarobin
(C15H12O3), di-chrysarobin methylether (C30H23O7.OCH3), di-chrysarobin
(C30H24O7). Chrysarobin is a methyl trioxyanthracene and exists as a
glucoside in the plant, but is gradually oxidized to chrysophanic acid
(a dioxy-methyl anthraquinone) and glucose. This strikes a blood-red
colour in alkaline solutions, and may therefore cause much alarm if
administered to a patient whose urine is alkaline. The British
pharmacopoeia has an ointment containing one part of chrysarobin and 24
of benzoated lard.
Both internally and externally the drug is a powerful irritant. The
general practice amongst modern dermatologists is to use only
chrysophanic acid, which may be applied externally and given by the
mouth in doses of about one grain in cases of psoriasis and chronic
eczema. The drug is a feeble parasiticide, and has been used locally in
the treatment of ringworm. It stains the skin--and linen--a deep yellow
or brown, a coloration which may be removed by caustic alkali in weak
solution.
ARAS, the anc. _Araxes_, and the _Phasis_ of Xenophon (Turk. and Arab.
_Ras_, Armen. _Yerash_, Georg. _Rashki_), a river which rises south of
Erzerum, in the Bingeul-dagh, and flows east through the province of
Erzerum, across the Pasin plateau, and then through Russian Armenia,
passing between Mount Ararat and Erivan, and forming the Russo-Persian
frontier. Its course is about 600 m. long; its principal tributary is
the Zanga, which flows by Erivan and drains Lake Gokcha or Sevanga. It
is a rapid and muddy stream, dangerous to cross when swollen by the
melting of the snows in Armenia, but fordable in its ordinary state. It
formerly joined the Kura; but in 1897 it changed its lower course, and
now runs direct to the Kizil-agach Bay of the Caspian. On an island in
its bed stood Artaxata, the capital of Armenia from 180 B.C. to A.D. 50.
ARASON, JON (1484-1551), Icelandic bishop and poet, became a priest
about 1504, and having attracted the notice of Gottskalk, bishop of
Holar, was sent by that prelate on two missions to Norway. In 1522 he
succeeded Gottskalk in the see of Holar, but he was soon driven out by
the other Icelandic bishop, Ogmund of Skalholt. His exile, however, was
brief, and some years after his return he became involved in a dispute
with his sovereign, Christian III., king of Denmark, because he refused
to further the progress of Lutheranism in the island. Then in 1548, when
a large number of the islanders had accepted the reformed doctrines,
Arason and Ogmund joined their forces and attacked the Lutherans. Civil
war broke out, and in 1551 the bishop of Holar and two of his sons were
captured and executed. Arason, who was the last Roman Catholic bishop in
Iceland, is celebrated as a poet, and as the man who introduced printing
into the island.
ARATOR, of Liguria, a Christian poet, who lived during the 6th century.
He was an orphan, and owed his early education to Laurentius, archbishop
of Milan, and Ennodius, bishop of Pavia, who took great interest in him.
After completing his studies, he practised with success as an advocate,
and was appointed to an influential post at the court of Athalaric, king
of the Ostrogoths. About 540, he quitted the service of the state, took
orders and was elected sub-deacon of the Roman Church. He gained the
favour of Pope Vigilius, to whom he dedicated his _De Actibus
Aposlolorum_ (written about 544), which was much admired in the middle
ages. The poem, consisting of some 2500 hexameters, is of little merit,
being full of mystical and allegorical interpretations and long-winded
digressions; the versification, except for certain eccentricities in
prosody, is generally correct.
Text by Hubner, 1850. See Leimbach, "Der Dichter Arator," in
_Theologische Studien und Kritik_ (1873); Manitius, _Geschichte der
christlich-lateinischen Poesie_ (1891).
ARATUS, Greek statesman, was born at Sicyon in 271 B.C., and educated at
Argos after the death of his father, at the hands of Abantidas, tyrant
of Sicyon. When twenty years old Aratus delivered Sicyon from its tyrant
by a bold _coup de main_. By enrolling it in the Achaean League (q.v.)
he secured it against Macedonia, and with funds received from Ptolemy
Philadelphus he pacified the returned exiles. Ever anxious to extend the
league, in which after 245 he was general almost every second year,
Aratus took Corinth by surprise (243), and with mingled threats and
persuasion won over other cities, notably Megalopolis (233) and Argos
(229), whose tyrants abdicated voluntarily. He fought successfully
against the Aetolians (241), and in 228 induced the Macedonian commander
to evacuate Attica. But when Cleomenes III. (q.v.) opened hostilities,
Aratus sustained several reverses, and was badly defeated near Dyme (226
or 225). Rather than admit Cleomenes as chief of the league, where he
might have upset the existing timocracy, Aratus opposed all attempts at
mediation. As plenipotentiary in 224 he called in Antigonus Doson of
Macedonia, and helped to recover Corinth and Argos and to crush
Cleomenes at Sellasia, but at the same time sacrificed the independence
of the league. In 220-219 the Aetolians defeated him in Arcadia and
harried the Peloponnese unchecked. When Philip V. of Macedon came to
expel these marauders, Aratus became the king's adviser, and averted a
treacherous attack on Messene (215); before long, however, he lost
favour and in 213 was poisoned. The Sicyonians accorded him hero-worship
as a "son of Asclepius." To Aratus is due the credit of having made the
Achaean League an effective instrument against tyrants and foreign
enemies. But his military incapacity and his blind hatred of democratic
reform went far to undo his work.
Polybius (ii.-viii.) follows the _Memoirs_ which Aratus wrote to
justify his statesmanship,--Plutarch (_Aratus_ and _Cleomenes_) used
this same source and the hostile account of Phylarchus; Paus. ii. 10;
see Neumeyer, _Aralos von Sikyon_ (Leipzig, 1886). (M. O. B. C.)
ARATUS, of Soli in Cilicia, Greek didactic poet, a contemporary of
Callimachus and Theocritus, was born about 315 B.C. He was invited
(about 276) to the court of Antigonus Gonatas of Macedonia, where he
wrote his most famous poem, [Greek: Phainomena] (Appearances, or
Phenomena). He then spent some time with Antiochus I. of Syria; but
subsequently returned to Macedonia, where he died about 245. Aratus's
only extant works are two short poems, or two fragments of his one poem,
written in hexameters; an imitation of a prose work on astronomy by
Eudoxus of Cnidus, and [Greek: Diosaemeia] (on weather signs), chiefly
from Theophrastus. The work has all the characteristics of the
Alexandrian school of poetry. Although Aratus was ignorant of astronomy,
his poem attracted the favourable notice of distinguished specialists,
such as Hipparchus, who wrote commentaries upon it. Amongst the Romans
it enjoyed a high reputation (Ovid, _Amores_, i. 15, 16). Cicero, Caesar
Germanicus and Avienus translated it; the two last versions and
fragments of Cicero's are still extant. Quintilian (_Instit._ x. i, 55)
is less enthusiastic. Virgil has imitated the _Prognostica_ to some
extent in the _Georgics_. One verse from the opening invocation to Zeus
has become famous from being quoted by St Paul (Acts xvii. 28). Several
accounts of his life are extant, by anonymous Greek writers.
Editio princeps, 1499; Buhle, 1793; Maass, 1893; _Aratea_ (1892),
_Commentariorum in Aratum Reliquiae_ (1898), by the same. English
translations: Lamb, 1848; Poste, 1880; R. Brown, 1885; Prince, 1895.
On recently discovered fragments, see H.I. Bell, in _Classical
Quarterly_, April 1907; also _Berliner Klassikertexte_, Heft v. 1, pp.
47-54.
ARAUCANIA, the name of a large territory of Chile, South America, S. of
the Bio-bio river, belonging to the Araucanian Indians (see below) at
the time of their independence of Spanish and Chilean authority. The
loss of their political independence has been followed by that of the
greater part of their territory, which has been divided up into the
Chilean provinces of Arauco, Bio-bio, Malleco and Cautin, and the
Indians, much reduced in number, now live in the wooded recesses of the
three provinces last named.
ARAUCANIANS (or AUCA), a tribal group of South American Indians in
southern Chile (see above). Physically a fine race, their hardiness and
bravery enabled them successfully to resist the Incas in the 15th
century. Their government was by four _toquis_ or princes, independent
of one another, but confederates against foreign enemies. Each tetrarchy
was divided into five provinces, ruled by five chiefs called
_apo-ulmen_; and each province into nine districts, governed by as many
_ulmen_, who were subject to the apo-ulmen, as the latter were to the
toquis. These various chiefs (who all bore the title of ulmen) composed
the aristocracy of the country. They held their dignities by hereditary
descent in the male line, and in the order of primogeniture. The supreme
power of each tetrarchy resided in a council of the ulmen, who assembled
annually in a large plain. The resolutions of this council were subject
to popular assent. The chiefs, indeed, were little more than leaders in
war; for the right of private revenge limited their authority in
judicial matters; and they received no taxes. Their laws were merely
traditional customs. War was declared by the council, messengers bearing
arrows dipped in blood being sent to all parts of the country to summon
the men to arms. From the time of the first Spanish invasion (1535) the
Araucanians made a vigorous resistance, and after worsting the best
soldiers and the best generals of Spain for two centuries obtained an
acknowledgment of their independence. Their success was due as much to
their readiness in adopting their enemy's methods of warfare as to their
bravery. Realizing the inefficiency of their old missiles when opposed
to musket balls, they laid aside their bows, and armed themselves with
spears, swords or other weapons fitted for close combat. Their practice
was to advance rapidly within such a distance of the Spaniards as would
not leave the latter time to reload after firing. Here they received
without shrinking a volley, which was certain to destroy a number of
them, and then rushing forward in close order, fought their enemies hand
to hand.
The Araucanians believe in a supreme being, and in many subordinate
spirits, good and bad. They believe also in omens and divination, but
they have neither temples nor idols, nor religious rites. Very few have
become Roman Catholics. They believe in a future state, and have a
confused tradition respecting a deluge, from which some persons were
saved on a high mountain. They divide the year into twelve months of
thirty days, and add five days by intercalation. They esteem poetry and
eloquence, but can scarcely be induced to learn reading or writing.
The tribal divisions have little or no organization. Some 50,000 in
number, they spend a nomad existence wandering from pasture to pasture,
living in low skin tents, their herds providing their food. They still
preserve their warlike nature, though in 1870 they formally recognized
Chilean rule. In 1861 Antoine de Tounens (1820-1878), a French
adventurer in Chile, proclaimed himself king of Araucania under the
title of Orelie Antoine I., and tried to obtain subscriptions from
France to support his enterprise. But his pretensions were ludicrous; he
was quickly captured by the Chileans and sent back to France (1862) as a
madman; and though he made one more abortive effort in 1874 to recover
his "kingdom," and occupied his pen in magnifying his achievements,
nobody took him seriously except a few of the deluded Indians.
See Domeyko, _Araucania y sus habitantes_ (Santiago, 1846); de Ginoux,
"Le Chili et les Araucans," in _Bull, de la soc, de geogr._ (1852);
E.R. Smith, _Araucamans_ (New York, 1855); J.T. Medina, _Los aborjenes
de Chile_ (Santiago, 1882); A. Polakowsky, _Die heutigen Araukanen_,
Globus No. 74 (Brunswick, 1898).
ARAUCARIA, a genus of coniferous trees included in the tribe
_Araucarineae_. They are magnificent evergreen trees, with apparently
whorled branches, and stiff, flattened, pointed leaves, found in Brazil
and Chile, Polynesia and Australia. The name of the genus is derived
from Arauco, the name of the district in southern Chile where the trees
were first discovered. _Araucaria imbricata_, the Chile pine, or "monkey
puzzle," was introduced into Britain in 1796. It is largely cultivated,
and usually stands the winter of Britain; but in some years, when the
temperature fell very low, the trees have suffered much. Care should be
taken in planting to select a spot somewhat elevated and well drained.
The tree grows to the height of 150 ft. in the Cordilleras of Chile. The
cones are from 8 to 8-1/2 in. broad, and 7 to 7-1/2 in. long. The wood
of the tree is hard and durable. This is the only species which can be
cultivated in the open air in Britain. _Araucaria brasiliana_, the
Brazil pine, is a native of the mountains of southern Brazil, and was
introduced into Britain in 1819. It is not so hardy as _A. imbricata_,
and requires protection during winter. It is grown in conservatories for
half-hardy plants. _Araucaria excelsa_, the Norfolk Island pine, a
native of Norfolk Island and New Caledonia, was discovered during
Captain Cook's second voyage, and introduced into Britain by Sir Joseph
Banks in 1793. It cannot be grown in the open air in Britain, as it
requires protection from frost, and is more tender than the Brazilian
pine. It is a majestic tree, sometimes attaining a height of more than
220 ft. The scales of its cones are winged, and have a hook at the apex.
_Araucaria Cunninghami_, the Moreton Bay pine, is a tall tree abundant
on the shores of Moreton Bay, Australia, and found through the littoral
region of Queensland to Cape York Peninsula, also in New Guinea. It
requires protection in England during the winter. _Araucaria Bidwilli_,
the Bunya-Bunya pine, found on the mountains of southern Queensland,
between the rivers Brisbane and Burnett, at 27 deg. S. lat., is a noble
tree, attaining a height of 100 to 150 ft., with a straight trunk and
white wood. It bears cones as large as a man's head. Its seeds are very
large, and are used as food by the natives. _Araucaria Rulei_, which is
a tree of New Caledonia, attains a height of 50 or 60 ft. _Araucaria
Cookii_, also a native of New Caledonia, attains a height of 150 ft. It
is found also in the Isle of Pines, and in the New Hebrides. The tree
has a remarkable appearance, due to shedding its primary branches for
about five-sixths of its height and replacing them by a small bushy
growth, the whole resembling a tall column crowned with foliage,
suggesting to its discoverer, Captain Cook, a tall column of basalt.
ARAUCO, a coast province of southern Chile, bounded N., E. and S. by the
provinces of Concepcion, Bio-bio, Malleco and Cautin. Area, 2458 sq. m.;
pop. (est. 1902) 70,635. The province originally covered the once
independent Indian territory of Araucania (q.v.), but this was
afterwards divided into four provinces. It is devoted largely to
agricultural pursuits. The capital Lebu (pop. in 1902, 3178) is situated
on the coast about 55 m. south of Conception, with which it is connected
by rail.
ARAVALLI HILLS, a range of mountains in India, running for 300 m. in a
north-easterly direction, through the Rajputana states and the British
district of Ajmere-Merwara, situated between 24 deg. and 27 deg. 10' N.
lat., and between 72 deg. and 75 deg. E. long. They consist of a series
of ridges and peaks, with a breadth varying from 6 to 60 m. and an
elevation of 1000 to 3000 ft., the highest point being Mount Abu, rising
to 5653 ft., near the south-western extremity of the range. Geologically
they belong to the primitive formation--granite, compact dark blue
slate, gneiss and syenite. The dazzling white effect of their peaks is
produced, not by snow, as among the Himalayas, but by enormous masses of
vitreous rose-coloured quartz. On the north their drainage forms the
Luni and Sakhi rivers, which fall into the Gulf of Cutch. To the south,
their drainage supplies two distinct river systems, one of which
debouches in comparatively small streams on the Gulf of Cambay, while
the other unites to form the Chambal river, a great southern tributary
of the Jumna, flowing thence via the Ganges, into the Bay of Bengal on
the other side of India. The Aravalli hills are for the most part bare
of cultivation, and even of jungle. Many of them are mere heaps of sand
and stone; others consist of huge masses of quartz. The valleys between
the ridges are generally sandy deserts, with an occasional oasis of
cultivation. At long intervals, however, a fertile tract marks some
great natural line of drainage, and among such valleys Ajmere city, with
its lake, stands conspicuous. The hills are inhabited by a very sparse
population of Mhairs, an aboriginal race. For long these people formed a
difficult problem to the British government. Previously to the British
occupation of India they had been accustomed to live, almost destitute
of clothing, by the produce of their herds, by the chase and by plunder.
But Ajmere having been ceded to the East India Company in 1818, the
Mhair country was soon afterwards brought under British influence, and
the predatory instincts of the people were at the same time controlled
and utilized by forming them into a Merwara battalion. As the peaceful
results of British rule developed, and the old feuds between the Mhairs
and their Rajput neighbours died out, the Mhair battalion was
transformed into a police force. The Aravalli mountaineers strongly
objected to this change, and pleaded a long period of loyal usefulness
to the state. They were accordingly again erected into a military
battalion and brought upon the roll of the British army. Under Lord
Kitchener's scheme of 1903 they were entitled the 50th Merwara Infantry.
The Aravalli hills send off rocky ridges in a north-easterly direction
through the states of Alwar and Jaipur, which from time to time reappear
in the form of isolated hills and broken rocky elevations to near Delhi.
ARAWAK ("meal-eaters," in reference to cassava, their staple food), a
tribe of South American Indians of Dutch and British Guiana. The Arawaks
have given their name to a linguistic stock of South America, the
Arawakan, which includes many once powerful tribes. The Arawakans were
once numerous, their tribes stretching from southern Brazil and Bolivia
to Central America, occupying the whole of the West Indies and having
settlements on the Florida seaboard. They were found by the Spaniards in
Haiti and possibly in the Bahamas, but the Caribs had expelled them from
most of the islands. The Arawaks proper were physically an undersized,
weakly people, peaceable agriculturists, by far the most civilized of
all Guiana peoples, being skilful weavers and workers in stone and gold.
The chief tribes which may be called Arawakan are the Anti, Arawak,
Barre, Goajiro, Guana, Manaos, Maneteneri, Maipuri, Maranho, Moxo,
Passe, Piro and Taruma.
See Everard F. im Thurn, _Among the Indians of Guiana_ (London, 1883).
ARBACES, according to Ctesias (Diodor. ii. 24 ff. 32), one of the
generals of Sardanapalus, king of Assyria and founder of the Median
empire about 830 B.C. But Ctesias's whole history of the Assyrian and
Median empires is absolutely fabulous; his Arbaces and his successors
are not historical personages. From the inscriptions of Sargon of
Assyria we know one "Arbaku Dynast of Arnashia" as one of forty-five
chiefs of Median districts who paid tribute to Sargon in 713 B.C. See
MEDIA. (Ed. M.)
ARBE (Serbo-Croatian _Rab_), an island in the Adriatic Sea, forming the
northernmost point of Dalmatia, Austria. Pop. (1900) 4441. Arbe is 13 m.
long; its greatest breadth is 5 m. The capital, which bears the same
name, is a walled town, remarkable, even among the Dalmatian cities, for
its beauty. It occupies a steep ridge jutting out from the west coast.
At the seaward end of this promontory is the 13th-century cathedral;
behind which the belfries of four churches, at least as ancient, rise in
a row along the crest of the ridge; while behind these, again, are the
castle and a background of desolate hills. Many of the houses are
roofless and untenanted; for, after five centuries of prosperity under
Venetian or Hungarian rule, an outbreak of plague in 1456 swept away the
majority of the townsfolk, and ruined the survivors. Some of the old
palaces are, nevertheless, of considerable interest; one especially as
the birthplace of the celebrated philosopher, Marc Antonio de Dominis.
Fishing and agriculture constitute the chief resources of the islanders,
whose ancient silk industry is still maintained. In 1018 the yearly
tribute due to Venice was fixed at ten pounds of silk or five pounds of
gold.
ARBELA (ARBA'IL, i.e. "Four-god-city"), an ancient town in Adiabene, the
capital in Assyrian and pre-Assyrian times of the country between the
greater and lesser Zab, and seat of an important cult of Ishtar. The
battle in which Alexander overthrew Darius in 331 B.C., though named in
the old books after Arbela, was probably fought at Gaugamela, some 60 m.
away (Yorck von Wartenburg, _Kurze Ubersicht der Feldzuge A. des Gr._).
The modern town of Erbil or Arbil, in the vilayet of Mosul, is about 40
m. from Mosul on the road to Bagdad. The greater part of the town, which
seems at one time to have been very large, is situated on an artificial
mound about 150 ft. high. It became the seat of the Ayyubite sultan
Saladin in 1184; was bequeathed in 1233 to the caliphs of Bagdad; was
plundered by the Mongols in 1236 and in 1393 by Timur, and was taken in
1732 by the Persians under Nadir Shah. In the 14th century the
Christians were almost exterminated. The population, which varies from
2000 to 6000, is chiefly composed of Kurds.
The ruins of another ARBELA (Irbid, Beth-Arbel) in Palestine, situated
near the west shore of the Sea of Galilee, a little north of its centre,
are not in themselves of high interest, but the site is noteworthy
through its connexion with the neighbouring caves in the lofty flank of
the Wadi Hamam, above which Arbela stood. These caves (called by the
Arabs Kulat ibn Ma'an) are apparently natural, but were enlarged and
fortified. They were used by the inhabitants of Arbela as a place of
refuge from the army of Bacchides, general of Demetrius III., king of
Syria, and were the resort of bandits in the reign of Herod the Great.
He laid siege to them, and his men could only gain access to the caves
by being let down from above. The caves were also fortified against the
Romans by Josephus.
ARBER, EDWARD (1836- ), English man of letters, was born in London on
the 4th of December 1836. From 1854 to 1878 he was a clerk in the
admiralty; from 1878 to 1881 lecturer on English, under Prof. H. Morley,
at University College; and from 1881 to 1894 professor of English at
Mason College, Birmingham. From 1894 he lived in London as emeritus
professor, being also a fellow of King's College. In 1905 he received
the honorary degree of D. Litt. at Oxford. He married in 1869, and had
two sons, one of them, E.A.N. Arber, becoming demonstrator in
palaeobotany at Cambridge. As a scholarly editor Professor Arber's
services to English literature are memorable. His name is associated
particularly with the series of "English Reprints" (1868-1880), by which
an accurate text of the works of many English authors, formerly only
accessible in rare or expensive editions, was placed within reach of the
general public. Among the thirty volumes of the series were Gosson's
_School of Abuse_, Ascham's _Toxophilus_, _Tottel's Miscellany_,
Naunton's _Fragmenta Regalia_, &c. It was followed by the "English
Scholar's Library" (16 vols.) which included the _Works_ (1884) of
Captain John Smith, governor of Virginia, and the _Poems_ (1882) of
Richard Barnfield. In his _English Garner_ (8 vols. 1877-1896) he made
an admirable collection of rare old tracts and poems; in 1899-1901 he
issued _British Anthologies_ (10 vols.), and in 1907 began a series
called _A Christian Library_. He also accomplished single-handed the
editing of two vast, and invaluable, English bibliographies: _A
Transcript of the Registers of the Stationers' Company, 1553-1640_
(1875-1894), and _The Term Catalogues, 1668-1709; with a number for
Easter Term 1711_ (1904-1906), edited from the quarterly lists of the
booksellers.
ARBITRAGE, the term applied to the system of equalizing prices in
different commercial centres by buying in the cheaper market and selling
in the dearer. These transactions, or their converse, are mainly
confined to stocks and shares, foreign exchanges and bullion; and are
for the most part carried on between London and other European capitals
and largely with New York. When prices in London are affected by
financial or political causes, all other markets are sooner or later
influenced, as London is the banking and financial centre for the
commerce of the world. It may, however, also occur that some local event
of importance initiates a rise or fall in a particular market which must
ultimately affect other countries. For instance, a crisis in France
would immediately depress all French securities, and by exciting the
fears of capitalists would stimulate transfers of funds and raise all
the exchanges against France.
In ordinary times those engaged in arbitrage operate with a very small
margin of profit. The great improvement in postal, telegraphic and
telephonic communication enables operators to close transactions with
amazing rapidity, while competition reduces the margin of profit to a
minimum. Operations in American stocks and shares are carried on between
London and New York on a vast scale, while transactions in African
mining shares are undertaken to a considerable extent between London and
Paris. The frequent fluctuations in the prices of the latter securities
offer a large and fruitful field to bold operators possessed of large
resources, while those who have small means often succumb in a
commercial crisis. As regards foreign exchange and bullion, arbitrage
operators stand on a fairly safe foundation, the fluctuations being
slight and involving little or no risk, although they yield a very small
margin of profit. Arbitrage operations are for these reasons resorted to
frequently by one country in supplying the requirements of another. The
slightest advantage in any market is put to profit, and as the margin in
ordinary exchange transactions is minute, the ability to operate in this
cross fashion renders business possible, which would otherwise be
impracticable. To give concrete instances of the working of arbitrage
the following may be cited:--
On the 21st of May 1906 the exchange on London in Vienna was telegraphed
from that city 24 kronen 4-3/4 cents; London, requiring to purchase
remittances, found that Antwerp had some Vienna to sell, and arranged to
buy there. The transactions worked out as follows:--The direct exchange
in Antwerp on London being 25.25-1/2, and Antwerp's selling price of
Vienna being 105 francs for 100 kronen, on dividing 25.25-1/2 by 105 an
exchange of 24.05-1/4 was obtained or 1/2 cent cheaper than the direct
exchange between Vienna and London.
Again a portion of the proceeds of the Russian loan of 1906 had to be
remitted to Berlin from Paris. Having exhausted local balances in
Berlin, Paris on one side, and Berlin on the other, sought to prevent
gold shipments from Berlin, and thus cause stringency in that money
market. On the 21st of May 1906 Berlin was therefore seeking to sell
Paris in London at 81.35 marks for 100 francs, and draw on London for
the proceeds at 20.50. This transaction produced a parity between the
exchanges of 25.20, which left a small margin in London.
Two instances of arbitrage of stocks are the following:--On the 24th of
March 1906, Japanese exchequer bonds, series 2 and 3, were bought in
Tokio at 93-1/4 and were paid for by telegraphic transfer at 24-3/8
pence per yen, and were sold in London the same day at 94 for payment on
arrival of bonds. It took five weeks for the transmission of the bonds
to London, where they were dealt in on the fixed basis of exchange,
namely 24-1/2 pence per yen. The London price works out thus:
93.25 X 24.375
-------------- = 92.77,
24.50
to which must be added the loss of interest, as the firm in London paid
cash on the 24th of March for the telegraphic transfer, and did not
recover payment until the arrival of the bonds from Tokio five weeks
later. The following is a computation of the transaction:--
London price 92.77
Five weeks at 5% .45
English stamp 1/2% on nominal amount .50
Insurance 1/8% .12
-----
93.84
This sum represents the net cost to the arbitrage house in London, and
the money paid on the 28th of April left a profit of about 3/16%. The
bonds being "to bearer" insurance was necessary for the safety in this,
as in all similar transactions.
In the next example, however, this expense was unnecessary, the bonds
being "inscribed." On the 21st of May 1906 American Steel common shares
were sold for cash in New York at 41-3/16 dollars per share, and were
bought in London at 42-7/32 for the account day, May 31st. These figures
are explained by the fact that transactions in the United States stocks
and shares are on the fixed basis of five dollars per pound sterling,
while as regards payments in New York the exchange varies daily. Railway
shares are generally 100 dollars each. In the London market, however,
five shares of 100 dollars would be L100 nominal. These shares,
therefore, cost in London, at the purchase price of 42-7/32, L42:4:5.
The money realized in New York for five shares at 41-3/16 was 205.93
dollars. A cheque on London was bought at 4 dollars 85-1/4 cents,
realizing L42:8:9. It should be noted that the shares in these cases are
generally lent by the New York correspondent, thus saving loss of
interest. The resulting profit in this particular instance was 4s. 4d.
for each five shares, divided between the London and New York arbitrage
firms. Arbitrage operations with distant countries such as India are
large and mainly profitable. Arbitrage with India consists chiefly in
buying bills of exchange in London, such as India Council rupee bills
amounting to about 16 millions sterling annually, and commercial bills
drawn against goods exported to India. The counter-operation consists in
purchasing in India, for short or long delivery, sterling bills drawn
against exports to Great Britain of Indian produce, such as cotton, tea,
indigo, jute and wheat. These operations greatly facilitate trade and
the moving of produce from the interior of India to the seaports.
Without this assistance Great Britain's enormous trade could not be
carried on, and she would have to revert to the primitive system of
barter. The same advantages are afforded to her vast trade with China
and Japan, with the material difference that the supply of government
council bills is confined to the Indian trade. The balance of trade with
all countries is generally settled by specie shipments; hence, with the
Far East, silver and gold play an important part in arbitrage.
It will thus be seen that arbitrage fills a useful place in commerce;
the profits are small because the competition is great; nevertheless
huge transactions employing thousands of clerks result from this system.
The literature of the subject is extremely meagre. Lord Goschen's
_Theory of Foreign Exchanges_ (London, 1866) is general and
theoretical, but throws great light upon particular aspects of the
philosophy of arbitrage, without touching specially on the details of
the subject itself. The principal other works are: Kelly's _Cambist_
(1811, 1835); Otto Swoboda, _Die kaufmannische Arbitrage_ (Berlin,
1873), and _Borse und Actien_ (Cologne, 1869); Coquelin et Guillaumin,
_Dictionnaire de l'economie politique_ (Paris, 1851-1853); Ottomar
Haupt, _London Arbitrageur_ (London, 1870); Charles le Touze, _Traite
theorique et pratique du change_ (Paris, 1868); Tate, _Modern Cambist_
(London, 1868); Simon Spitzer, _Ueber Munz- und Arbiragenrechnung_
(Vienna, 1872); J.W. Gilbart, _Principles and Practice of Banking_
(London, 1871); G. Clare, _The A B C of Foreign Exchanges_ (2nd ed.,
1895); _Money Market Primer and Key to the Exchanges_ (2nd ed., 1900);
J. Pallain, _Les Changes etrangers et les prix_ (Paris, 1905).
(Sw.)
ARBITRATION (Lat. _arbitrari_, to examine or judge), a term derived from
the nomenclature of Roman law, and applied to an arrangement for taking,
and abiding by, the judgment of a selected person in some disputed
matter, instead of carrying it to the established courts of justice. In
disputes between states, arbitration has long played an important part
(see ARBITRATION, INTERNATIONAL). The present article is restricted to
arbitration under municipal law; but a separate article is also devoted
to the use of arbitration in labour disputes (see ARBITRATION AND
CONCILIATION).
_Roman Law._--Arrangements for avoiding the delay and expense of
litigation, and referring a dispute to friends or neutral persons, are a
natural practice, of which traces may be found in any state of society;
but it is from Roman Law that we derive arbitration as a system which
has found its way into the practice of European nations in general, and
has even evaded the dislike of the English common lawyers to the civil
law. The praetor, who had the arrangement of all trials or private suits
and the formal appointment of judges for them, referred the great
majority of such cases for decision to a judge who was styled usually
_judex_ but sometimes _arbiter_. The phrase _judex arbiterve_ frequently
occurs. The _judex_ and the _arbiter_ had the same functions, and
apparently the only express basis for the distinction between the two
words is that there might be several _arbitri_ but never more than one
_judex_ in a cause. The term _arbiter_ seems, however, to have been
sometimes used when the referee had a certain degree of latitude, and
was entitled to give weight to equitable considerations (Roby, _Inst.
Rom. Law_, i. 318; Hunter, _Roman Law_ (1897), p. 48; and see Cicero
_pro Rosc. Com._ 4, ss. 10-13; Gaius, _Inst._ iv. s. 163). Apart from
this system of compulsory reference by the praetor, Roman law recognized
a voluntary reference (_compromissum_) to an _arbiter_ or arbitrator by
the parties themselves. The arbitrator _ex compromisso sumptus_ had no
coercive jurisdiction, and in order to make his award effective, the
agreement of reference was confirmed by a stipulation and usually
provided a penalty (_poena, pecunia compromissa_) in case of
disobedience. The sum agreed on by way of penalty might be either
specific or unliquidated, e.g. "whatever the matter may be worth"
(_Dig._ iv., tit. 8, s. 28). The arbitrator _ex compromisso sumptus_,
like the judicial _arbiter_, was expected to take account of equitable
considerations in coming to a decision. If three arbitrators were
appointed, a majority could decide; in case of two being appointed and
not agreeing, the praetor would compel them to choose a third (Roby,
_ubi sup._, i. 320, 321; _Dig._ iv., tit. 8, s. 17). As in English law,
it was necessary that the award should cover all the points submitted
(_Dig._ iv., tit. 8, s. 21).
_Law of England._--The law of England as to arbitration is now
practically summed up in the Arbitration Act of 1889. This statute is an
express code as to proceedings in all arbitration, but "criminal
proceedings by the crown" cannot be referred under it (ss. 13, 14). The
statute subdivides its subject-matter into two headings. I. References
by consent out of court; II. References under order of court.
References by consent of the court.
(1) Here the first matter to be dealt with is the submission. A
submission is defined as a written agreement (it need not be signed by
both parties) to submit present or future differences to arbitration,
whether a particular arbitrator is named in it or not. The capacity of a
person to agree to arbitration, or to act as arbitrator, depends on the
general law of contract. A submission by an infant is not void, but is
voidable at his option (see INFANT). A counsel has a general authority
to deal with the conduct of an action, which includes authority to refer
it to arbitration, but he has no authority to refer an action against
the wishes of his client, or on terms different from those which his
client has sanctioned; and if he does so, the reference may be set
aside, although the limit put by the client on his counsel's authority
is not made known to the other side when the reference is agreed upon
(_Neale v. Gordon Lennox_, 1902, A.C. 465). The committee of a lunatic,
with the sanction of the judge in lunacy, may refer disputes to
arbitration. As an arbitrator is chosen by the parties themselves the
question of his eligibility is of comparatively minor importance; and
where an arbitrator has been chosen by both parties, the courts are
reluctant to set the appointment aside. This question has arisen chiefly
in contracts, for works, which frequently contain a provision that the
engineer shall be the arbitrator, in any dispute between the contractor
and his own employer. The practical result is to make the engineer judge
in his own cause. But the courts will not in such cases prevent the
engineer from acting, where the contractor was aware of the facts when
he signed the contract, and there is no reason to believe that the
engineer will be unfair (_Ives and Barker v. Willans_, 1894, 2 Ch. 478).
Even the fact that he has expressed an opinion on matters in dispute
will not of itself disqualify him (_Halliday v. Hamilton's Trustees_,
1903, 5 Fraser, 800). So, too, where a barrister was appointed
arbitrator, the court refused to stop the arbitration on the mere
ground that he was the client of a firm of solicitors, the conduct of
one of whom was in question (_Bright_ v. _River Plate Construction Co._,
1900, 2 Ch. 835).
Under the law prior to the act of 1889 (a) an agreement to refer
disputes generally, without naming the arbitrators, was always
irrevocable, and an action lay for the breach of it, although the court
could not compel either of the parties to proceed under it; (b) an
agreement to refer to a particular arbitrator was revocable, and if one
of the parties revoked that particular arbitrator's authority he could
not be compelled to submit to it; (c) when, however, the parties had got
their tribunal fixed, and were proceeding to carry out the agreement to
refer, the act 9 and 10 Will. III. c. 15 provided that the submission
might be made a rule of court, a provision which gave the court power to
assist the parties in the trial of the case, and to enforce the award of
the arbitrators; (d) the statute 3 and 4 Will. IV. c. 42 (s. 39) put an
end to the power to revoke the authority of a particular arbitrator
after the reference to him had been made a rule of court; and--a
liability which existed also under the act of 9 and 10 Will. III. c.
15--any person revoking the appointment of an arbitrator after the
submission had been made a rule of court might be attached. The
Arbitration Act 1889 provides that a submission, unless a contrary
intention is expressed in it, is irrevocable except by leave of the
court or a judge, and is to have the same effect in all respects as if
it had been made an order of court. The object of this enactment was to
save the expense of making a submission a rule of court by treating it
as having been so made, and it leaves the law in this position, that
while the authority of an arbitrator, once appointed, is irrevocable,
there is no power--any more than there was under the old law--to compel
an unwilling party to proceed to a reference, except in cases specially
provided for by sections 5 and 6 of the act of 1889. The former of these
sections deals with the power of the court, the latter with the power of
the parties to a reference, to appoint an arbitrator in certain
circumstances. Section 5 provides that where a reference is to be to a
single arbitrator, and all the parties do not concur in appointing one,
or an appointed arbitrator refuses to act or becomes incapable of
acting, or where the parties or two arbitrators fail, when necessary, to
appoint an umpire or third arbitrator, or such umpire or arbitrator when
appointed refuses to act, or becomes incapable of acting, and the
default is not rectified after seven clear days' notice, the court may
supply the vacancy. Under section 6, where a reference is to two
arbitrators, one to be appointed by each party, and either the appointed
arbitrator refuses to act, or becomes incapable of acting, and the party
appointing him fails, after seven clear days' notice, to supply the
vacancy, or such party fails, after similar notice, to make an original
appointment, a binding appointment (subject to the power of the court to
set it aside) may be made by the other party to the reference. The court
may compel parties to carry out an arbitration, not only in the above
cases by directly appointing an arbitrator, &c., or by allowing one
appointed by a party to proceed alone with the reference, but also
indirectly by staying any proceedings before the legal tribunals to
determine matters which come within the scope of the arbitration. Where
the agreement to refer stipulates that the submission of a dispute to
arbitration shall be a condition precedent to the right to bring an
action in regard to it, an action does not lie until the arbitration has
been held and an award made, and it is usual in such cases not to apply
for a stay of proceedings, but to plead the agreement as a bar to the
action (_Viney_ v. _Bignold_, 1887, 20 Q.B.D. 172). The court will
refuse to stay proceedings where the subject-matter of the litigation
falls outside the scope of the reference, or there is some serious
objection to the fitness of the arbitrator, or some other good reason of
the kind exists.
An arbitrator is not liable to be sued for want of skill or for
negligence in conducting the arbitration (_Pappa_ v. _Rose_, 1872, L.R.
7 C.P. 525). When a building contract provides that a certificate of the
architect, showing the final balance due to the contractor, shall be
conclusive evidence of the works having been duly completed, the
architect occupies the position of an arbitrator, and enjoys the same
immunity from liability for negligence in the discharge of his functions
(_Chambers_ v. _Goldthorpe_, 1901, 1 Q.B. 624). An arbitrator cannot be
compelled to act unless he is a party to the submission.
An arbitrator (and the following observations apply _mutatis mutandis_
to an umpire after he has entered on his duties) has power to administer
oaths to, or take the affirmations of, the parties and their witnesses;
and any person who wilfully and corruptly gives false evidence before
him may be prosecuted and punished for perjury (Arbitration Act 1889,
sched. i. and s. 22). At any stage in the reference he may, and shall if
he be required by the court, state in the form of a special case for the
opinion of the court any question of law arising in the arbitration. The
arbitrator may also state his award in whole or in part as a special
case (ib. s. 19), and may correct in an award any clerical mistake or
error arising from an accidental slip or omission. The costs of the
reference and the award--which, under sched. i. of the act, must be in
writing, unless the submission otherwise provides--are in the
arbitrator's discretion, and he has a lien on the award and the
submission for his fees, for which--if there is an express or implied
promise to pay them--he can also sue (_Crampton_ v. _Ridley_, 1887, 20
Q.B.D. 48). An arbitrator or umpire ought not, however, to state his
award in such a way as to deprive the parties of their right to
challenge the amount charged by him for his services; and accordingly
where an umpire fixed for his award a lump sum as costs, including
therein his own and the arbitrators' fees, the award was remitted back
to him to state how much he allotted to himself and how much to the
arbitrators (in _Re Gilbert_ v. _Wright_, 1904, 20 _Times_ L.R. 164).
But in the absence of evidence to show that the fees charged by
arbitrators or umpire are extortionate, or unfair and unreasonable, the
courts will not interfere with them (_Llandrindod Wells Water Co._ v.
_Hawksley_, 1904, 20 _Times_ L.R. 241).
If there is no express provision on the point in the submission, an
award under the Arbitration Act 1889 must be made within three months
after the arbitrator has entered on the reference, or been called upon
to act by notice in writing from any party to the submission. The time
may, however, be extended by the arbitrator or by the court. An umpire
is required to make his award within one month after the original or
extended time appointed for making the award of the arbitrators has
expired, or any later day to which he may enlarge it. The court may by
order remit an award to the arbitrators or umpire for reconsideration,
in which case the reconsidered award must be made within three months
after the date of the order.
An award must be _intra vires_: it must dispose of all the points
referred; and it must be final, except as regards certain matters of
valuation, &c. (see in _Re Stringer and Riley Brothers_, 1901, 1 K.B.
105). An award may, however, be set aside where the arbitrator has
misconducted himself (an arbitrator may also be removed by the court on
the ground of misconduct), or where it is _ultra vires_, or lacks any of
the other requisites--above mentioned--of a valid award, or where the
arbitrator has been wilfully deceived by one of the parties, or some
such state of things exists. An award may, by leave of the court, be
enforced in the same manner as a judgment or decree to the same effect.
Under the Revenue Act 1906, s. 9, a uniform duty of ten shillings is
payable on awards in England or Ireland, and on decreets arbitral in
Scotland.
Provisions for the arbitration of special classes of disputes are
contained in many acts of parliament, e.g. the Local Government Acts
1888, 1894, the Agricultural Holdings (England) Acts 1883 to 1906, the
Small Holdings and Allotments Act 1907, the Light Railways Act 1896,
the Housing of the Working Classes Act 1890, the Workmen's
Compensation Act 1906, &c.
The Conciliation Act 1896 provides machinery for the prevention and
settlement of trade disputes, and in 1892 a chamber of arbitration for
business disputes was established by the joint action of the
corporation of the city of London and the London chamber of commerce.
At the time when the London chamber of arbitration was established,
there was considerable dissatisfaction among the mercantile community
with the delays that occurred in the disposal of commercial cases
before the ordinary tribunals. But the special provision made by the
judges in 1895 for the prompt trial of commercial causes to a large
extent destroyed the _raison d'etre_ of the chamber of arbitration,
and it did not attain any great measure of success.
References under order of court.
(2) The court or a judge may refer any question arising in any cause or
matter to an official or special referee, whose report may be enforced
like a judgment or order to the same effect. This power may be exercised
whether the parties desire it or not. The official referees are salaried
officers of court. The remuneration of special referees is determined by
the court or judge. An entire action may be referred, if all parties
consent, or if it involves any prolonged examination of documents, or
scientific or local examination, or consists wholly or partly of matters
of account.
_Scots Law._--The Arbitration (Scotland) Act 1894, unlike the English
Arbitration Act 1889, did not codify the previously existing law, and
it becomes necessary, therefore, to deal with that law in some detail.
It differs in important particulars from the law of England. Although
(as in England apart from the Arbitration Act 1889) there is nothing
to prevent a verbal reference, submissions are generally not merely
written but are effected by deed. The deed of submission first defines
the terms of the reference, the name or names of the arbiters or
arbitrators, and the "oversman" or umpire, whose decision in the event
of the arbiters differing in opinion is to be final. Formerly, where
no oversman was named in the submission, and no power given to the
arbiters to name one, the proceedings were abortive if the arbiters
disagreed, unless the parties consented to a nomination. But under the
Arbitration (Scotland) Act 1894, s. 4, here arbiters differ in
opinion, they, or, if they fail to agree on the point, the court, on
the application of either party, may nominate an oversman whose
decision is to be final. The deed of submission next gives to the
arbiters the necessary powers for disposing of the matters referred
(e.g. powers to summon witnesses, to administer oaths and to award
expenses), and specifies the time within which the "decreet arbitral"
is to be pronounced. If this date is left blank, practice has limited
the arbiter's power of deciding to a year and a day, unless, having
express or clearly implied power in the submission, he exercises this
power, or the parties expressly or tacitly agree to its prorogation.
The deed of submission then goes on to provide that the parties bind
themselves, under a stipulated penalty to abide by the decreet
arbitral, that, in the event of the death of either of them, the
submission shall continue in force against their heirs and
representatives, and that they consent to the registration, for
preservation and execution, both of the deed itself and of the decreet
arbitral. The power to enforce the award depends on this last
provision. Under the common law of Scotland, a submission of future
disputes or differences to an arbiter, or arbiters, unnamed, was
ineffectual except where the agreement to refer did not contemplate
the decision of proper disputes between the parties but the adjustment
of some condition, or the liquidation of some obligation, contained in
the contract of which the agreement to submit formed a part. And by
the Arbitration (Scotland) Act 1894, s. 1, an agreement to refer to
arbitration is not invalid by reason of the reference being to a
person not named, or to be named by another, or to a person merely
described as the holder for the time being of any office or
appointment. An arbiter who has accepted office may be compelled by an
action in court of session to proceed with his duty unless he has
sufficient cause, such as ill-health or supervening interest, for
renouncing. The court may name a sole arbiter, where provision is made
for one only and the parties cannot agree (Arbitration [Scotland] Act
1894, s. 2); and may name an arbiter where a party having the right or
duty to nominate one of two arbiters will not exercise it (_ib._ s.
3). Scots law as to the requisites of a valid award is practically
identical with the law of England. The grounds of reduction of a
decreet arbitral are "corruption," "bribery," "false hold" (Scots Act
of Regulations 1695, s. 25). An attempt was made to include, under the
expression "constructive corruption," among these statutory grounds of
reduction, irregular conduct on the part of an arbitrator, with no
suggestion of any corrupt motive. But it was definitely overruled by
the House of Lords (_Adams_ v. _Great North of Scotland Railway Co._,
1891, A.C. 31). The statutory definition of the grounds of reduction
was intended, however, merely to put an end to the practice which had
previously obtained of reviewing awards on their merits, and it does
not prevent the courts from setting aside an award where the
arbitrator has exceeded his jurisdiction, or disregarded any one of
the expressed conditions of the submission, or been guilty of
misconduct. A private arbiter cannot demand remuneration except in
virtue of contract, or by implication from the nature of the work
done, or if the reference is in pursuance of some statutory enactment
(e.g. the Lands Clauses [Scotland] Act 1845, s. 32).
_Judicial References_ have been long known to the law of Scotland.
When an action is in court the parties may at any stage withdraw it
from judicial determination, and refer it to arbitration. This is done
by minute of reference to which the court interpones its authority.
When the award is issued it becomes the judgment of the court. The
court has no power to compel parties to enter into a reference of this
kind, and it is doubtful whether counsel can bind their clients in
such a matter. A judicial reference falls like the other by the elapse
of a year; and the court cannot review the award on the ground of
miscarriage. By the Court of Session Act 1850, s. 50, a provision is
introduced whereby parties to an action in the supreme court may refer
judicially any issue for trial to one, three, five or seven persons,
who shall sit as a jury, and decide by a majority.
_Law of Ireland._--The Common Law Procedure Act (Ireland) 1856, which
is incorporated by s. 60 of the Supreme Court of Judicature Act
(Ireland) 1877, and thereby made applicable to all divisions of the
High Court of Justice, provides, on the lines of the English Common
Law Procedure Act 1854, for the conduct of arbitrations and the
enforcement of awards. Irish statute law, like that of England and
Scotland, contains numerous provisions for arbitration under special
enactments.
_Indian and Colonial Law._--The provisions of the English Arbitration
Act 1889 have in substance been adopted by the Indian Legislature (see
Act ix. of 1899), and by many of the colonies (see, e.g., Act No. 13
of 1895, Western Australia; No. 24 of 1898, Natal; c. 20 of 1899,
Bahamas; No. 10 of 1895, Gibraltar; No. 29 of 1898, Cape of Good Hope:
s. 7 of this last statute excludes from submission to arbitration
criminal cases, so far as prosecution and punishment are concerned,
and, without the special leave of the court, matters relating to
status, matrimonial causes, and matters affecting minors or other
perons under legal disability; Trinidad and Tobago, No. 35 of 1898).
_United States._--The common law and statute law of the United States as
to arbitration bear a general resemblance to the law of England.
Voluntary submissions.
All controversies of a civil nature, and any question of personal injury
on which a suit for damages will lie, although it may also be
indictable, may be referred to arbitration; but crimes, and perhaps
actions on penal statutes by common informers may not. The submission
may be effected sometimes by parol, sometimes by written instrument,
sometimes by deed or deed poll. Capacity to refer depends on the general
law of contractual capacity. The law of England as to the capacity to
act as an arbitrator and as to objections to an arbitrator on the ground
of interest has been closely followed by the American courts. The same
observation applies as to the requisites of an award, the mode of its
enforcement and the grounds on which it will be set aside. The
arbitrator has a lien on the award for his fees; and--a point of
difference from the English law--he may sue for them without an express
promise to pay (cf. _Goodall_ v. _Cooley_, 1854, 29 New Hamp. 48). At
common law, a submission is generally revocable at any time before
award; and it is also, in the absence of stipulation to the contrary,
revoked by the death of one of the parties. Provision has been made in
Pennsylvania for compulsory arbitration by an act of the 16th of June
1836 (see Pepper and Lewis, _Pennsylvania Digest, tit._ "arbitration").
References by rule of court.
The rules of court also of many of the states of the United States
provide for reference through the intervention of the court at any stage
in the progress of a litigation. Such submissions are usually declared
irrevocable by the rules providing for them.
Statutory arbitrations.
In addition to voluntary submissions and references by rules of court
there are in America, as in the United Kingdom, various statutes which
provide for arbitration in particular cases. Most of these statutes are
founded on the 9 and 10 Will. III., c. 15, and 3 and 4 Will. IV. c. 42,
s. 49, "by which it is allowed to refer a matter in dispute (not then in
court) to arbitrators, and agree that the submission be made a rule of
court. This agreement, being proved on the oath of one of the witnesses
thereto, is enforced as if it had been made at first a rule of court"
(Bouvier, _Law Dict_. s.v. "Arbitration").
Ample provision is made in America for the arbitration of labour
disputes.
_Law of France._--Voluntary arbitration has always been recognized in
France. In cases of mercantile partnerships, arbitration was formerly
compulsory; but in 1856 (law of the 17th of July 1856) jurisdiction in
disputes between parties was conferred on the Tribunals of Commerce
(as to which see _Code de Commerce_, arts. 615 et seq.), and
arbitration at the present time is purely voluntary. The subject is
very fully dealt with in the _Code de Procedure Civile_ (arts.
1003-1028). The submission to arbitration (_compromis_) must, on pain
of nullity, be acted upon within three months from its date (art.
1007). The submission terminates (i.) by the death, refusal,
resignation or inability to act of one of the arbitrators; (ii.) by
the expiration of the period agreed upon, or of three months if no
time had been fixed; (iii.) by the disagreement of two arbitrators,
unless power be reserved to them to appoint an umpire (art. 1012). An
arbitrator cannot resign if he has once commenced to act, and can only
be relieved on some ground arising subsequently to the submission
(art. 1014). Each party to the arbitration is required to produce his
evidence at least fifteen days before the expiration of the period
fixed by the submission (art. 1016). If the arbitrators, differing in
opinion, cannot agree upon an umpire (_tiers arbitre_), the president
of the Tribunal of Commerce will appoint one, on the application of
either party (art. 1017). The umpire is required to give his decision
within one month of his acceptance of the appointment; before making
his award, he must confer with the previous arbitrators who disagreed
(art. 1018). Arbitrators and umpire must proceed according to the
ordinary rules of law, unless they are specially empowered by the
submission to proceed as _amiables compositeurs_ (art. 1019). The
award is rendered executory by an order of the president of the Civil
Tribunal of First Instance (art. 1020). Awards cannot be set up
against third parties (art. 1022), or attacked by way of opposition.
An appeal against an award lies to the Civil Tribunal of First
Instance, or to the court of appeal, according as the subject-matter,
in the absence of arbitration, would have been within the jurisdiction
of the justice of the peace, or of the Civil Tribunal of First
Instance (art. 1023). In the manufacturing towns of France, there are
also boards of umpires (_Conseils de Prud'hommes_) to deal with trade
disputes between masters and workmen belonging to certain specified
trades.
_Other Foreign Laws._--The provisions of French law as to arbitration
are in force in Belgium (_Code de Proc. Civ._, arts. 1003 et seq.);
and a convention (8th of July 1899) between France and Belgium
regulates, _inter alia_, the mutual enforcement of awards. The law of
France has also been reproduced in substance in the Netherlands (Code
of Civil Procedure, arts. 620 et seq.). The German Imperial Code of
Procedure did not create any system of arbitration in civil cases. But
this omission was supplied in Prussia by a law of the 29th of March
1879, which provided for the appointment, in each commune, of an
arbitrator (_Schiedsmann_) before whom conciliation proceedings in
contentious matters might be conducted. The procedure was gratuitous
and voluntary; and the functions of the arbitrator were not judicial;
he merely recorded the arrangement arrived at, or the refusal of
conciliation. This law was followed in Brunswick by a law of the 2nd
of July 1896, and in Baden by a law of the 16th of April 1886. In
Luxemburg, compulsory arbitration in matters affecting commercial
partnerships was abolished in 1879 (law of the 16th of April 1879). A
system of conciliation, similar to the Prussian, exists in Italy (laws
of the 16th of June 1892, and the 26th of December 1892) and in some
of the Swiss cantons (law of the 29th of April 1883). Spain (Code of
Civil Proc., arts. 1003-1028; Civil Code, arts. 1820-1821) and Sweden
and Norway (law of the 28th of October 1887) have followed the French
law. In Portugal, provision has been made for the creation in
important industrial centres, on the application of the administrative
corporations, of boards of conciliation (decrees of the 14th of August
1889, and the 18th of May 1893).
AUTHORITIES.--Russell, _Arbitration_ (London, 1906); _Annual Practice_
(London, yearly); Redman, _Arbitration_ (London, 1897); Crewe,
_Arbitration Act of 1889_ (London, 1898); Pollock, _On Arbitrators_
(London, 1906). As to Scots law: Bell, _On Arbitration_ (2nd ed.,
Edinburgh, 1877); Erskine, _Principles_ (20th ed., Edinburgh, 1903).
As to American law: Morse, _Law of Arbitration_ (Boston, 1872). As to
foreign law generally: the texts of the laws cited, and the _Annuaire
de legislation etrangere_. (A. W. R.)
ARBITRATION, INTERNATIONAL. International arbitration is a proceeding in
which two nations refer their differences to one or more selected
persons, who, after affording to each party an opportunity of being
heard, pronounce judgment on the matters at issue. It is understood,
unless otherwise expressed, that the judgment shall be in accordance
with the law by which civilized nations have agreed to be bound,
whenever such law is applicable. Some authorities, notably the eminent
Swiss jurist, J.K. Bluntschli, consider that unless this tacit condition
is complied with, the award may be set aside. This would, however, be
highly inconvenient since international law has never been codified. A
fresh arbitration might have to be entered on to decide (1) what the law
was, (2) whether it applied to the matter in hand. Arbitration differs
from Mediation (q.v.) in so far as it is a judicial act, whereas
Mediation involves no decision, but merely advice and suggestions to
those who invoke its aid.
_Arbitral Tribunals._--An international arbitrator may be the chief of a
friendly power, or he may be a private individual. When he is an
emperor, a king, or a president of a republic, it is not expected that
he will act personally; he may appoint a delegate or delegates to act on
his behalf, and avail himself of their labours and views, the ultimate
decision being his only in name. In this respect international
arbitration differs from civil arbitration, since a private arbitrator
cannot delegate his office without express authority. The analogy
between the two fails to hold good in another respect also. In civil
arbitration, the decision or award may be made a rule of court, after
which it becomes enforceable by writ of execution against person or
property. An international award cannot be enforced directly; in other
words it has no legal sanction behind it. Its obligation rests on the
good faith of the parties to the reference, and on the fact that, with
the help of a world-wide press, public opinion can always be brought to
bear on any state that seeks to evade its moral duty. The obligation of
an ordinary treaty rests on precisely the same foundations. Where there
are two or any other even number of arbitrators, provision is usually
made for an umpire (French _sur-arbitre_). The umpire may be chosen by
the arbitrators themselves or nominated by a neutral power. In the
"Alabama" arbitration five arbitrators were nominated by the president
of the United States, the queen of England, the king of Italy, the
president of the Swiss Confederation, and the emperor of Brazil
respectively. In the Bering Sea arbitration there were seven
arbitrators, two nominated by Great Britain, two by the United States,
and the remaining three by the president of the French Republic, the
king of Italy, and the king of Sweden and Norway respectively. In
neither of these cases was there an umpire; nor was any necessary, since
the decision, if not unanimous, lay with the majority. (See separate
articles on BERING SEA ARBITRATION and "ALABAMA" ARBITRATION.)
Arbitral tribunals may have to deal with questions either of law or
fact, or of both combined. When they have to deal with law only, that is
to say, to lay down a principle or decide a question of liability, their
functions are judicial or quasi-judicial, and the result is arbitration
proper. Where they have to deal with facts only, e.g. the evaluation of
pecuniary claims, their functions are administrative rather than
judicial, and the term commission is applied to them. "Mixed
commissions," so called because they are composed of representatives of
the parties in difference, have been frequently resorted to for
delimitation of frontiers, and for settling the indemnities to be paid
to the subjects of neutral powers in respect of losses sustained by
non-combatants in times of war or civil insurrection. The two earliest
of these were nominated in 1794 under the treaty negotiated by Lord
Grenville with Mr John Jay, commonly called the "Jay Treaty," their
tasks being (1) to define the boundary between Canada and the United
States which had been agreed to by the treaty signed at Paris in 1783;
(2) to estimate the amount to be paid by Great Britain and the United
States to each other in respect of illegal captures or condemnation of
vessels during the war of the American Revolution.
Although arbitrations proper may be thus distinguished from "mixed
commissions," it must not be supposed that any hard or fast theoretical
line can be drawn between them. Arbitrators strictly so called may (as
in the "Alabama" case) proceed to award damages after they have decided
the question of liability; whilst "mixed commissions," before awarding
damages, usually have to decide whether the pecuniary claims made are or
are not well founded.
_Awards._--International awards, as already pointed out, differ from
civil awards in having no legal sanction by which they can be enforced.
On the other hand, they resemble civil awards in that they may be set
aside, i.e. ignored, for sufficient reason, as, for example, if the
tribunal has not acted in good faith, or has not given to each party an
opportunity of being heard, or has exceeded its jurisdiction. An
instance under the last head occurred in 1831, when it was referred to
the king of the Netherlands as sole arbitrator to fix the north-eastern
boundary of the state of Maine. The king's representatives were unable
to draw the frontier line by reason of the imperfection of the maps then
in existence, and he therefore directed a further survey. This direction
was beyond the terms of the reference, and the award, when made, was
repudiated by the United States as void for excess. The point in dispute
was only finally disposed of by the Webster-Ashburton treaty of 1842.
_Subject-matter._--The history of international arbitration is dealt
with in the article PEACE, where treaties of general arbitration are
discussed, both those which embrace all future differences thereafter to
arise between the contracting parties, and also those more limited
conventions which aim at the settlement of all future differences in
regard to particular subjects, e.g. commerce or navigation. The rapid
growth of international arbitration in recent times may be gathered from
the following figures. Between 1820 and 1840, there were eight such
instances; between 1840 and 1860, there were thirty; between 1860 and
1880, forty-four; between 1880 and 1900, ninety. Of the governments
which were parties in these several cases Great Britain heads the list
in point of numbers, the United States of America being a good second.
France, Portugal, Spain and the Netherlands are the European states next
in order. The present article is concerned exclusively with arbitration
in regard to such existing differences as are capable of precise
statement and of prompt adjustment. These differences may be arranged in
two main groups:--
(a) Those which have arisen between state and state in their sovereign
capacities;
(b) Those in which one state has made a demand upon another state,
ostensibly in its sovereign capacity, but really on behalf of some
individual, or set of individuals, whose interests it was bound to
protect.
To group (a) belong territorial differences in regard to ownership of
land and rights of fishing at sea; to group (b) belong pecuniary claims
in respect of acts wrongfully done to one or more subjects of one state
by, or with the authority of, another state. To enumerate even a tenth
part of the successful arbitrations in recent times would occupy too
much space. Some prominent examples (dealt with elsewhere under their
appropriate titles) are the dispute between the United States and Great
Britain respecting the "Alabama" and other vessels employed by the
Confederate government during the American Civil War (award in 1872);
that between the same powers respecting the fur-seal fishery in Bering
Sea (award in 1893); that between Great Britain and Venezuela respecting
the boundary of British Guiana (award in 1899); that between Great
Britain, the United States and Portugal respecting the Delagoa railway
(award in 1900); that between Great Britain and the United States
respecting the boundary of Alaska (award in 1903). The long-standing
Newfoundland fishery dispute with France (finally settled in 1904) is
dealt with under Newfoundland. Other examples are shortly noticed in the
tables on p. 329, which although by no means exhaustive, sufficiently
indicate the scope and trend of arbitration during the years covered.
The cases decided by the permanent tribunal at the Hague established in
1900 are not included in these tables. They are separately discussed
later.
_The Hague Tribunal._--The establishment of a permanent tribunal at the
Hague, pursuant to the Peace convention of 1899, marks a momentous epoch
in the history of international arbitration. This tribunal realized an
idea put forward by Jeremy Bentham towards the close of the 18th
century, advocated by James Mill in the middle of the 19th century, and
worked out later by Mr Dudley Field in America, by Dr Goldschmidt in
Germany, and by Sir Edmund Hornby and Mr Leone Levi in England. The
credit of the realization is due, in the first place, to the tsar of
Russia, who initiated the Hague Conference of 1899, and, in the second
place to Lord Pauncefote (then Sir Julian Pauncefote, British ambassador
at Washington), who urged before a committee of the conference the
importance of organizing a permanent international court, the service of
which should be called into requisition at will, and who also submitted
an outline of the mode in which such a court might be formed. The result
was embodied in the following articles of the Convention, signed on
behalf of sixteen of the assembled powers on the 29th of July 1899.
(Art. 23). Each of the signatory powers is to designate within three
months from the ratification of the convention four persons at the
most, of recognized competence in international law, enjoying the
highest moral consideration, and willing to accept the duties of
arbitrators. Two or more powers may agree to nominate one or more
members in common, or the same person may be nominated by different
powers. Members of the court are to be appointed for six years and may
be re-nominated. (Art. 25). The signatory powers desiring to apply to
the tribunal for the settlement of a difference between them are to
notify the same to the arbitrators. The arbitrators who are to
determine this difference are, unless otherwise specially agreed, to
be chosen from the general list of members in the following
manner:--each party is to name two arbitrators, and these are to
choose a chief arbitrator or umpire (_sur-arbitre_). If the votes are
equally divided the selection of the chief arbitrator is to be
entrusted to a third power to be named by the parties. (Art. 26). The
tribunal is to sit at the Hague when practicable, unless the parties
otherwise agree. (Art. 27). "The signatory powers consider it a duty
in the event of an acute conflict threatening to break out between two
or more of them to remind these latter that the permanent court is
open to them. This action is only to be considered as an exercise of
good offices." Several of the powers nominated members of the
permanent court pursuant to Art. 25, quoted above, those nominated on
behalf of Great Britain being Lord Pauncefote, Sir Edward Malet, Sir
Edward Fry and Professor Westlake. On the death of Lord Pauncefote,
Major-General Sir John C. Ardagh was appointed in his place.
The pious fund of the Californias.
_Hague Cases._--(1) The first case decided by the Hague court was
concerned with the "Pious Fund of the Californias." A fund bearing
this name was formed in the 18th century for the purpose of converting
to the Catholic faith the native Indians of Upper and Lower
California, both of which then belonged to Mexico, and of maintaining
a Catholic priesthood there. By a decree of 1842 this fund was
transferred to the public treasury of Mexico, the Mexican government
undertaking to pay interest thereon in perpetuity in furtherance of
the design of the original donors. After the sale of Upper California
to the United States, effected by the treaty of Guadalupe Hidalgo
(1848), the Mexican government refused to pay the proportion of the
interest to which Upper California was entitled. The question of
liability was then referred to commissioners appointed by each state,
and, on their failing to agree, to Sir Edward Thornton, British
minister at Washington, who by his award, in 1875, found there was due
from Mexico to Upper California, or rather to the bishops there as
administrators of the fund, an arrear of interest amounting to nearly
$100,000, which was directed to be paid in gold. This award was
carried out, but payment of the current interest was again withheld as
from the 24th of October 1868. Claim was thereupon made on Mexico by
the United States on behalf of the bishops, but without success.
Ultimately, in May 1902, an agreement was come to between the two
governments which provided for the settlement of the dispute by the
Hague tribunal. The points to be determined were (1) whether the
matter was _res judicata_ by reason of Sir E. Thornton's award; (2)
whether, if not, the claim for the interest was just. The arbitrators
selected by the United States were Sir E. Fry and Professor F. de
Martens, and by Mexico, Professor Asser and Professor de Savornin
Lohman, both of Amsterdam. These four (none of whom, it will be
observed, was of the nationality of either party in difference) chose
for their umpire Professor Matzen, of Copenhagen, president of the
Landsthing there. In October 1902, the court decided both questions in
the affirmative, awarding the payment by Mexico of the annual sum
claimed, not in gold, but _en monnaie ayant cours legal au Mexique_.
The direction to pay in gold made by Sir E. Thornton was held to be
referable only to the mode of the execution of the award, and
therefore not to be _chose jugee_.
Great Britain, Germany and Italy versus Venezuela.
(2) The second arbitration before the Hague court was more important
than the first, not only because so many of the great powers were
concerned in it, but also because it brought about the discontinuance
of acts of war. The facts may be stated shortly thus. By three several
protocols signed at Washington in February 1903, it was agreed that
certain claims by Great Britain, Germany and Italy, on behalf of their
respective subjects against the Venezuelan government should be
referred to three mixed commissions, and that for the purpose of
securing the payment of these claims 30 percent of the customs
revenues at the ports of La Guayra and Puerto Caballo should be
remitted in monthly instalments to the representative of the Bank of
England at Caracas. Prior to the date of these protocols, an attempt
had been made by Great Britain, Germany and Italy to enforce their
claims by blockade, and a further question arose as between these
three powers on the one hand, and the United States of America,
France, Spain, Belgium, the Netherlands, Sweden and Norway, and Mexico
(all of whom had claims against Venezuela, but had abstained from
hostile action) on the other hand, as to whether the blockading powers
were entitled to preferential treatment. By three several protocols
signed in May 1903 this question was agreed to be submitted to the
Hague court, three members of which were to be named as arbitrators by
the tsar of Russia, but no arbitrator was to be a subject or citizen
of any of the signatory or creditor powers. The arbitrators named by
the tsar were M. Muraviev, minister of justice and attorney-general of
the Russian empire; Professor Lammasch, member of the Upper House of
the Austrian parliament; and M. de Martens, then member of the council
of the ministry of foreign affairs at St Petersburg. The arbitrators
by their award in February 1904 decided unanimously in favour of the
blockading powers and ordered payment of their claims out of the 30%
of the receipts at the two Venezuelan ports which had been set apart
to meet them.
+------+----------------------------+--------------------------+-----------------------------------+------+
|Dates | | | | |
| of | | | | Date |
|agree-| Parties. | Arbitrating Authority. | Subject-Matter. | of |
|ments | | | |award.|
| to | | | | |
|refer.| | | | |
| |
| TABLE I. |
| _Territorial Disputes_ (_Ownership_) |
| |
| 1857 | Holland and Venezuela | Queen of Spain | Island of Aves in Venezuela | 1865 |
| | | | | |
| 1869 | Great Britain and Portugal | President of United | Island of Bulama on West Coast of | 1870 |
| | | States | Africa | |
| 1872 | Great Britain and Portugal | President of French | Delagoa Bay (part of), Inyack and | 1875 |
| | | Republic | Elephant Is., S.E. Africa | |
| 1876 | Argentine Republic and | President of United | Territory between the Verde and | 1878 |
| | Paraguay | States | Pilcomayo river of Paraguay | |
| 1885 | Great Britain and Germany | Mixed Commission | Islets and guano deposits on S.W. | 1886 |
| | | | Coast of Africa | |
| 1886 | Bulgaria and Servia | Mixed Commission | Territory near the village of | 1887 |
| | | | Bergovo | |
| 1902 | Austria and Hungary | Mixed Commission (with | Territory in the district of Upper| 1902 |
| | | President of Swiss | Tatra | |
| | | Federal tribunal as | | |
| | | umpire) | | |
| |
| TABLE II. |
| _Delimitation of Frontiers._ |
| |
| 1869 | Great Britainand the | Lieutenant Governor of | The southern boundary of the S. | 1870 |
| | Transvaal | Natal | African Republic | |
| 1871 | Great Britain and the | The German Emperor | The San Juan water boundary | 1872 |
United States | | | |
| 1873 | Italy and Switzerland | Mixed Commission (with | The Canton of Ticino | 1874 |
| | | U.S. Minister at Rome | | |
| | | as umpire) | | |
| 1885 | Great Britain and Russia | Mixed Commission | North-western Afganistan | 1887 |
| | | | | |
| 1890 | France and Holland | Tsar of Russia | French Guiana and Dutch Guiana | 1891 |
| | | | | |
| 1895 | Great Britain and Portugal | President of the Italian | Manicaland 1897 | |
| | | Court of Appeal | | |
| 1897 | France and Brazil | President of the Swiss | River Yapoe named in the Treaty | 1900 |
| | | Confederation | of Utrecht 1813 | |
| 1901 | Great Britain and Brazil | King of Italy | British Guiana | 1904 |
| | | | | |
| 1903 | Great Britain and Portugal | King of Italy | Barotseland | 1905 |
| |
| TABLE III. |
| _Pecuniary Claims in respect of Seizures and Arrests._ |
| |
| 1851 | United States and Portugal | President of French | Seizure of the American privateer | 1852 |
| | | Republic | "General Armstrong" | |
| 1863 | Great Britain and Brazil | King of the Belgians | Arrest of three British officers | 1863 |
| | | | of the ship "La Forte" | |
| 1863 | Great Britain and Peru | Sentate of Hamburg | Arrest at Callao of Capt. Melville| 1864 |
| | | | White, a British subject | |
| 1870 | United States and Spain | Mixed Commission | The American S.S. "Col. Lloyd | 1870 |
| | | | Aspinwall" | |
| 1873 | Japan and Peru | Tsar of Russia | The Peruvian barque "Maria Luz" | 1875 |
| | | | | |
| 1874 | United States and Colombia | Mixed Commission | The American S.S. "Montijo" | 1875 |
| | | | | |
| 1879 | France and Nicaragua | French Court of Cassation| The French ship "La Phare" | 1880 |
| | | | | |
| 1885 | United States an Spain | Italian Minister at | The American S.S. "The Masonic" | 1885 |
| | | Madrid | | |
| 1888 | The United States and | British Minister at | The S.S. "Benjamin Franklin" and | 1890 |
| | Denmark | Athens | the barque "Catherine Augusta" | |
| 1895 | Great Britain and | Tsar of Russia, who | Arrest of the master of the "Costa| 1897 |
| | Netherlands | delegated his duties to| Rica" packet (a British subject)| |
| | | Professor F. de Martens| | |
+------+----------------------------+--------------------------+-----------------------------------+------+
Great Britain, France and Germany versus Japan.
(3) The third case before the Hague court was heard in 1904-1905. A
controversy not amenable to ordinary diplomatic methods arose between
Great Britain, France and Germany on the one hand and Japan on the
other hand as to the legality of a house-tax imposed by Japan on
certain subjects of those powers who held leases in perpetuity. The
question upon the true construction of certain treaties between the
European powers and Japan which had been made a few years previously.
By three protocols signed at Tokyo in August 1902 this question was
agreed to be submitted to arbitrators, members of the court at the
Hague, one to be chosen by each party with power to name an umpire.
The arbitrators chosen were M. Renault, professor of the law faculty
in Paris, and M. Montono, the Japanese envoy to the French capital.
They named as their umpire and president M. Gram, ex-minister of the
state of Norway. In May 1905, an award was pronounced by the majority
(M. Gram and M. Renault) in favour of the European contention, M.
Montono dissenting both from the conclusion of his colleagues and from
the reasons on which it was based.
Great Britain and the French flag at Muscat.
(4) Barely two months had elapsed since the date of the last award
when the Hague court was again called into requisition. The scene of
dispute this time was on the S.E. coast of Arabia. Muscat, the capital
of the kingdom of Oman on that coast, is ruled by a sultan, whose
independence both Great Britain and France had, in March 1862,
"reciprocally engaged to respect." Notwithstanding this, the French
republic had issued to certain native dhows, owned by subjects of the
sultan, papers authorizing them to fly the French flag, not only on
the Oman littoral but in the Red Sea. A question thereupon arose as to
the manner in which the privileges thereby purported to be conferred
affected the jurisdiction of the sultan over such dhows, the masters
of which, as was alleged, used their immunity from search for the
purpose of carrying on contraband trade in slaves, arms and
ammunition. In October 1904 the two governments agreed to refer this
question to the Hague court. Chief Justice Melville W. Fuller, of the
Supreme Court of the United States, was named as arbitrator on the
part of Great Britain, M. de Savornin Lohrnan, who had acted in the
case of the Californias (No. 1), as arbitrator on the part of France.
The choice of an umpire was entrusted to the king of Italy. He named
Professor Lammasch, who, as we have seen, had acted in the arbitration
with Venezuela in 1903.
A unanimous award was made in August 1905. It was held that although
generally speaking every sovereign may decide to whom he will accord
the right to fly his flag, yet in this case such right was limited by
the general act of the Brussels conference of July 1890 relative to
the African slave trade, an act which was ratified by France on the
2nd of June 1892; that accordingly the owners and master of dhows who
had been authorized by France to fly the French flag before the
last-named date retained this authorization so long as France chose
to renew it, but that after that date such authorization was improper
unless the guarantees could establish that they had been treated by
France as her proteges within the meaning of that term as explained in
a treaty of 1863 between France and Morocco. A further point decided
was that the owners or master of dhows duly authorized to fly the
French flag within the ruling of the first point, did not enjoy, in
consequence of that fact, any such right of extra-territoriality as
would exempt them from the sovereignty and jurisdiction of the sultan.
Such exemption would be contrary to the engagement to respect the
independence of the sultan solemnly made in 1862.
_Arbitral Procedure._--Not the least of the benefits of the Hague
convention of 1899 (strengthened by that of 1907) is that it contains
rules of procedure which furnish a guide for all arbitrations whether
conducted before the Hague court or not. These may be summarized as
follows:--The initial step is the making by the parties of a special
agreement clearly defining the subject of the dispute. The next is the
choice of the arbitrators and of an umpire if the number of arbitrators
is even. Each party then by its agents prepares and presents its case in
a narrative or argumentative form, annexing thereto all relevant
documents. The cases so presented are interchanged by transmission to
the opposite party. The hearing consists in the discussion of the
matters contained in the several cases, and is conducted under the
direction of the president who is either the umpire, or, if there is no
umpire, one of the arbitrators. The members of the tribunal have the
right of putting questions to the counsel and agents of the parties and
to demand from them explanation of doubtful points. The arbitral
judgment is read out at a public sitting of the tribunal, the counsel
and agents having been duly summoned to hear it. Any application for a
revision of the award must be based on the discovery of new evidence of
such a nature as to exercise a decisive influence on the judgment and
unknown up to the time when the hearing was closed, both to the tribunal
itself and to the party asking for the revision. These general rules are
universally applicable, but each case may require that special rules
should be added to them. These each tribunal must make for itself.
One special and necessary rule is in regard to the language to be
employed. This rule must vary according to convenience and is therefore
made _ad hoc_. In case No. 1 noted above, the court allowed English or
French to be spoken according to the nationality of the counsel engaged.
The judgment was delivered in French only. In case No. 2 it was agreed
that the written and printed memoranda should be in English but might be
accompanied by a translation into the language of the power on whose
behalf they were put in. The oral discussion was either in English or
French as happened to be convenient. The judgment was drawn up in both
languages. In case No. 3 French was the official language throughout,
but the parties were allowed to make any communication to the tribunal,
in French, English, German or Japanese. In case No. 4 French was again
the official language, but the counsel and agents of both parties were
allowed to address the tribunal in English. The protocols and the
judgment were drawn up in French accompanied by an official English
translation.
_Limits of International Arbitration._--Of the numerous treaties for
general arbitration which have been made during the 20th century that
between Great Britain and France (1903) is a type. This treaty contains
reservations of all questions involving the vital interests, the
independence or the honour of the contracting parties. The language of
the reservation is open to more interpretations than one. What, for
instance, is meant by the phrase "national independence" in this
connexion? If it be taken in its strict acceptation of autonomous state
sovereignty, the exception is somewhat of a truism. No self-respecting
power would, of course, consent to submit to arbitration a question of
life or death. This would be as if two men were to agree to draw lots as
to which should commit suicide in order to avoid fighting a duel. On the
other hand, if the exception be taken to exclude all questions which,
when decided adversely to a state, impose a restraint on its freedom of
action, then the exception would seem to exclude such a question as the
true interpretation of an ambiguous treaty, a subject with which
experience shows international arbitration is well fitted to deal.
Again, we may ask, what is meant by the phrase "national honour"? It was
thought at one time that the honour of a nation could only be vindicated
by war, though all that had happened was the slighting of its flag, or
of its accredited representative, during some sudden ebullition of local
feeling. France once nearly broke off peaceful relations with Spain
because her ambassador at London was assigned a place below the Spanish
ambassador, and on another occasion she despatched troops into Italy
because her ambassador at Rome had been insulted by the friends and
partisans of the pope. The truth is that the extent to which national
honour is involved depends on factors which have nothing to do with the
immediate subject of complaint. So long as general good feeling subsists
between two nations, neither will easily take offence at any
discourteous act of the other. But when a deep-seated antagonism is
concealed beneath an unruffled surface, the most trivial incident will
bring it to the light of day. "Outraged national honour" is a highly
elastic phrase. It may serve as a pretext for a serious quarrel whether
the alleged "outrage" be great or small.
The prospects of the expansion of international arbitration will be more
clearly perceived if we classify afresh all state differences under two
heads:--(1) those which have a legal character, (2) those which have a
political character. Under "legal differences" may be ranged such as are
capable of being decided, when once the facts are ascertained, by
settled, recognized rules, or by rules not settled nor recognized, but
(as in the "Alabama" case) taken so to be for the purpose in hand.
Boundary cases and cases of indemnity for losses sustained by
non-combatants in time of war, of which several instances have already
been mentioned, belong to this class. To the same class belong those
cases in which the arbitrators have to adapt the provisions of an old
treaty to new and altered circumstances, somewhat in the way in which
English courts of justice apply the doctrine of "cy-pres." "Political
differences" on the other hand, are such as affect states in their
external relations, or in relation to their subjects or dependants who
may be in revolt against them. Some of these differences may be slight,
while others may be vital, or (which amounts to the same thing) may seem
to the parties to be so. All differences falling under the first of
these two general heads appear to be suitable for international
arbitration. Differences falling under the second general head are, for
the most part, unsuitable, and may only be adjusted (if at all) through
the mediation of a friendly power.
The interesting problem of the future is--are we to regard this
classification as fixed or as merely transitory? The answer depends on
several considerations which can only be glanced at here. It may be
that, just as the usages of civilized nations have slowly crystallized
into international law, so there may come a time when the political
principles that govern states in relation to each other will be so
clearly defined and so generally accepted as to acquire something of a
legal or quasi-legal character. If they do, they will pass the line
which at present separates arbitrable from non-arbitrable matter. This
is the juridical aspect of the problem. But there is also an economic
side to it by reason of the conditions of modern warfare. Already the
nations are groaning under the burdens of militarism, and are for ever
diverting energies that might be employed in the furtherance of useful
productive work to purposes of an opposite character. The interruption
of maritime intercourse, the stagnation of industry and trade, the rise
in the price of the necessaries of life, the impossibility of adequately
providing for the families of those--call them reservists, "landwehr,"
or what you will--who are torn away from their daily toil to serve in
the tented field,--these are considerations that may well make us pause
before we abandon a peaceful solution and appeal to brute force. Lastly,
there is the moral aspect of the problem. In order that international
arbitration may do its perfect work, it is not enough to set up a
standing tribunal, whether at the Hague or elsewhere, and to equip it
with elaborate rules of procedure. Tribunals and rules are, after all,
only machinery. If this machinery is to act smoothly we must improve our
motive power, the source of which is human passion and sentiment.
Although religious animosities between Christian nations have died out,
although dynasties may now rise and fall without raising half Europe to
arms, the springs of warlike enterprise are still to be found in
commercial jealousies, in imperialistic ambitions and in the doctrine of
the survival of the fittest which lends scientific support to both.
These must one and all be cleared away before we can enter on that era
of universal peace towards the attainment of which the tsar of Russia
declared, in his famous circular of 1898, the efforts of all governments
should be directed. Meanwhile it is legitimate to share the hope
expressed by President Roosevelt in his message to Congress of December
1905 that some future Hague conference may succeed in making arbitration
the customary method of settling international disputes in all save the
few classes of cases indicated above, and that--to quote Mr Roosevelt's
words--"these classes may themselves be as sharply defined and rigidly
limited as the governmental and social development of the world will for
the time being permit."
AUTHORITIES.--Among special treatises are: Kamarowsky, _Le Tribunal
international_ (traduit par Serge de Westman) (Paris, 1887); Rouard de
Card, _Les Destinees de l'arbitrage international, depuis la sentence
rendue par le tribunal de Geneve_ (Paris, 1892); Michel Revon,
_L'Arbitrage international_ (Paris, 1892); Ferdinand Dreyfus,
_L'Arbitrage international_ (Paris, 1894) (where the earlier
authorities are collected); A. Merignhac, _Traite de l'arbitrage
international_ (Paris, 1895); Le Chevalier Descamps, _Essai sur
l'organisation de l'arbitrage international_ (Bruxelles, 1896);
Feraud-Giraud, _Des Traites d'arbitrage international general et
permanent, Revue de droit international_ (Bruxelles. 1897);
_Pasicrisie International_, by Senator H. Lafontaine (Berne, 1902);
_Recueils d'actes et protocols de la cour permanente d'Arbitrage_,
Langenhuysen Freres, the Hague.
Of works in English there is a singular dearth. The most important is
by an American, J.B. Moore, _History of the International Arbitrations
to which the United States has been a Party_ (Washington, 1898). The
appendices to this work (which is in six volumes) contain, with much
other matter of great value, full historical notes of arbitrations
between other powers. Arbitration and mediation will be found briefly
noticed in Phillimore's _International Law_; in Sir Henry Maine's
_Lectures_, delivered in Cambridge in 1887; in W.E. Hall's
_International Law_, and more at length in an interesting paper
contributed by John Westlake to the _International Journal of Ethics_,
October 1896, which its author has reprinted privately. A London
journal, _The Herald of Peace and International Arbitration_, issued
some years ago a list of instances in which arbitration or mediation
had been successfully resorted to during the 19th century. David
Dudley Field, of New York, subsequently enlarged this list, which has
been continued under the title _International Tribunals_, by Dr W.
Evans Darby, and is published, along with the texts of several
projects for general arbitration, at the offices of the Peace Society,
47 New Broad Street, London. (M. H. C.)
ARBITRATION AND CONCILIATION. The terms "arbitration and conciliation"
as employed in this article, are used to describe a group of methods of
settling disputes between employers and work-people or among two or more
sets of work-people, of which the common feature is the intervention of
some outside party not directly affected by the dispute. If the parties
agree beforehand to abide by the award of the third party, the mode of
settlement is described as "arbitration." If there be no such agreement,
but the offices of the mediator are used to promote an amicable
arrangement between the parties themselves, the process is described as
"conciliation." The third party may be one or more disinterested
individuals, or a joint-board representative of the parties or of other
bodies or persons.
The process here termed "arbitration" is rarely an arbitration in the
strict legal sense of the term (at least in the United Kingdom), because
of the defective legal personality of the associations or groups of
individuals who are usually parties to labour disputes, and the
consequent absence in the great majority of cases of a valid legal
"submission" of the difference to arbitration. Whether or not trade
unions of employers or workmen in the United Kingdom are capable of
entering through their agents into contracts which are legally binding
on their members it is fairly certain that the great majority of the
agreements actually made by the representatives of employers and workmen
to submit a dispute to the decision of a third party are of no legal
force except as regards the actual signatories. Broadly speaking,
therefore, the provisions of the Arbitration Act 1889, which
consolidated the law relating to arbitration in general, would as a rule
have no application to the settlement of collective disputes between
employers and workmen, even if the act had not been expressly excluded
by section 3 of the Conciliation Act of 1896 in the case of disputes to
which that act applies. Besides the absence of a legal "submission,"
labour arbitrations differ from ordinary arbitrations in the fact that
the questions referred often (though by no means always) relate to the
terms on which future contracts shall be made, whereas the vast majority
of ordinary arbitrations relate to questions arising out of existing
contracts. The defective "personality" of the parties to labour disputes
also prevents the enforcement of an award by legal penalties. Since,
however, difficulties of enforcement affect not only settlements arrived
at by arbitration, but all agreements between bodies of employers and
work-people with regard to the terms of employment, they are most
appropriately considered at a later stage of this article.
The term "conciliation" is ordinarily used to cover a large number of
methods of settlement, shading off in the one direction into
"arbitration" and in the other into ordinary direct negotiation between
the parties. In some cases conciliation only differs from arbitration in
the absence of a previous agreement to accept the award. The German
"_Gewerbegerichten_," when dealing with labour disputes, communicate a
decision to both parties, who must notify their acceptance or otherwise
(see below). Some of the state boards in America take similar action.
The conciliation boards established under the New Zealand Arbitration
Act of 1894 (see below) make recommendations, though either side may
decline to accept them and may appeal to the court of arbitration, which
in that colony has compulsory powers. Most frequently, however, in Great
Britain, the mediating party abstains from pronouncing a definite
judgment of his own, but confines himself to friendly suggestions with a
view of removing obstacles to an agreement between the parties. On the
other hand, it is not easy to define how far the "outside party" must be
independent of the parties to the dispute, in order that the method of
settlement may be properly described as "conciliation." There is a sense
in which a friendly conversation between an employer or his manager and
a deputation of aggrieved workmen is rightly described as
"conciliation," but such an interview would certainly not be covered by
the term as ordinarily used at the present day. Again, when the parties
are represented by agents (e.g. the officials of an employers'
association and of a trade union) the actual negotiators or some of them
may not personally be affected by the particular dispute, and may often
exercise some of the functions of the mediator or conciliator in a
manner not clearly to be distinguished from the action of an outside
party. It seems best, however, to exclude such negotiations from our
purview so long as those between whom they are carried on merely act as
the authorized agents for the parties affected. In the same way, a
meeting arranged _ad hoc_ between delegates of an employers' association
and a trade union, for the purpose of arranging differences as to the
terms on which the members of the association shall employ members of
the union is not usually classed as "conciliation," unless the meeting
is held in the presence of an independent chairman or conciliator, or in
pursuance of a permanent agreement between the associations laying down
the procedure for the settlement of disputes. If, however, the dispute
is considered and arranged not by a casual meeting between two
committees and deputations appointed _ad hoc_, but by a permanently
organized "joint committee" or board with a constitution, rules of
procedure and officers of its own, the process of settlement is by
ordinary usage described as "conciliation," even though the board be
entirely representative of the persons engaged in the industry. Such
joint boards, as will be seen, play a most important part in
conciliation at the present day, and they almost always have attached to
them some machinery for the ultimate decision by arbitration of
questions on which they fail to agree. Another form of conciliation is
that in which the mediating board represents a wider group of industries
than those affected by the dispute (e.g. the London and other
"district" boards referred to below). Moreover, in some of the most
important cases of settlement of disputes by conciliation, the mediating
party has not been a permanent board but a disinterested individual,
e.g. the mayor, county court judge, government official or member of
parliament. As will be seen below, the Conciliation Act now provides for
the appointment of "conciliators" by the Board of Trade.
Voluntary trade boards, however (i.e. permanent joint boards
representing employers and work-people in particular trades), are at
once the most firmly established and the most important agencies in
Great Britain for the prevention and settlement of labour disputes.
Among the earliest of such bodies was the board of arbitration in the
Macclesfield silk trade, formed in 1849, in imitation of the French
"_Conseils de Prud'hommes_," but which only lasted four years. The first
board, however, which attained any degree of permanent success was that
established for the hosiery and glove trade in Nottingham in 1860,
through the efforts of A.J. Mundella. In 1864 a board was established in
the Wolverhampton building trades, with Rupert Kettle as chairman, and
in 1868 boards were formed for the pottery trade, the Leicester hosiery
trade and the Nottingham lace trade. In 1869 there was formed one of the
most important of the still existing boards, viz. the board of
arbitration and conciliation in the manufactured iron and steel trades
of the north of England, with which the names of Rupert Kettle, David
Dale and others are associated. In 1872 and 1873 joint committees were
formed in the Durham and Northumberland coal trades to deal with local
questions. The Leicester boot and shoe trade board, the first of an
elaborate system of local boards in this trade, was founded in 1875.
From about 1870 onwards there was a great movement for the establishment
of "sliding scales" in the coal and iron and steel trades, which by
regulating wages automatically rendered unnecessary the settlement of
general wages by conciliation or arbitration. These sliding scales,
however, usually had attached to them joint committees for dealing with
disputed questions. A sliding scale arranged by David Dale was attached
to the manufactured iron trade board in 1871. A sliding scale for the
Cleveland blast furnacemen came into force in 1879. Sliding scales were
also adopted in the coal trade in many districts, e.g. South Wales
(1875), Durham (1877) and Northumberland (1879). The movement was,
however, followed by a reaction, and several of the sliding scales in
the coal trade were terminated between 1887 and 1889. In 1902 the last
surviving sliding scale in the coal trade, viz. in South Wales, ceased
to exist and was replaced by a conciliation board.
The formation on a large scale of conciliation boards in the coal trade
to fix the rate of wages dates from the great miners' dispute of 1893,
one of the terms of settlement agreed to at the conference held at the
foreign office under Lord Rosebery being the formation of a conciliation
board covering the districts affected. Northumberland followed in 1894,
Durham in 1895, Scotland in 1900 and South Wales in 1903.
In 1907 an important scheme for the formation of conciliation boards for
railway companies and their employees was adopted as the result of the
action taken by the president of the Board of Trade to prevent a general
strike of railway servants in that year. Under this scheme separate
boards (sectional and general) were to be formed for the employees of
each railway company which adhered to the scheme, with provision for
reference in case of a deadlock to an umpire.
The first general district board to be formed was that established in
London in 1890, through the London chamber of commerce, as a sequel to
the Mansion House committee which mediated in the great London dock
strike of 1889. The example was followed by several large towns, but the
action taken by the boards in most of these provincial districts has
been very limited.
In addition there are two boards composed of representatives of
co-operators and trade-unionists for the settlement of disputes arising
between co-operative societies and their employees.
Constitution and functions of voluntary conciliation boards.
The most typical form of machinery for the settlement of disputes by
voluntary conciliation is a joint board consisting of equal numbers of
representatives of employers and employed. The members of the board are
usually elected by the associations of employers and workmen, though in
some cases (e.g. in the manufactured iron trade board) the workmen's
representatives are elected not by their trade union but by meetings of
workmen employed at the various works. The chairman may be an
independent person, or, more usually, a representative of the employers,
the vice-chairman being a representative of the workmen. In the
arbitration and conciliation boards in the boot and shoe trade,
provision is made by which the chair may be occupied by representatives
of the employers and workmen in alternate years. An independent chairman
usually has a casting vote, which practically makes him an umpire in
case of equal voting, but where there is no outside chairman there is
often provision for reference of cases on which the board cannot agree
to an umpire, who may either be a permanent officer of the board elected
for a period of time (as in the case of several of the boards in the
boot and shoe trade), or selected _ad hoc_ by the board or appointed by
some outside person or body. Thus the choice of the permanent chairman
or umpire of the miners' conciliation board, formed in pursuance of the
settlement of the coal dispute of 1893 by Lord Rosebery, was left to the
speaker of the House of Commons. The nomination of umpires under the
Railway Agreement of 1907 was left to the speaker and the master of the
rolls. Since the passing of the Conciliation Act, several conciliation
boards have provided in their rules for the appointment of umpires by
the Board of Trade.
Conciliation boards constituted as described above usually have rules
providing that there shall always be equality of voting as between
employer and workmen, in spite of the casual absence of individuals on
one side or the other. In order to expedite business it is sometimes
provided that all questions shall be first considered by a
sub-committee, with power to settle them by agreement before coming
before the full board. Boards of conciliation and arbitration conforming
more or less to the above type exist in the coal, iron and steel, boot
and shoe and other industries in the United Kingdom. A somewhat
different form of organization has prevailed in the cotton-spinning
trade (since the dispute of 1892-1893) and in the engineering trade
(since the engineering dispute of 1897-1898). In these important
industries there are no permanent boards for the settlement of general
questions, but elaborate agreements are in force between the employers'
and workmen's organizations which among other things prescribe the mode
in which questions at issue shall be dealt with and if possible settled.
In the first place, if the question cannot be settled between the
employer and his workmen, it is dealt with by the local associations or
committees or their officials, and failing a settlement in this manner,
is referred to a joint meeting of the executive committees of the two
associations. In neither agreement is there any provision for the
ultimate decision of unsettled questions by arbitration. The agreement
in the cotton trade is known as the "Brooklands Agreement," and a large
number of questions have been amicably settled under its provisions. In
the building trade, it is very customary for the local "working rules,"
agreed to mutually by employers and employed in particular districts, to
contain "conciliation rules" providing for the reference of disputed
questions to a joint committee with or without an ultimate reference to
arbitration. Yet another form of voluntary board is the "district
board," consisting in most cases of representatives elected in equal
numbers by the local chamber of commerce and trades council
respectively. In the case, however, of the London Conciliation Board the
workmen's representatives are elected, twelve by specially summoned
meetings of trade union delegates and two by co-optation. The functions
of district boards are to deal with disputes in any trade which may
occur within their districts, and of course they can only take action
with the consent of both parties to the dispute, in this respect
differing from the majority of "trade" boards, which, as a rule, are
empowered by the agreement under which they are constituted to deal
with questions on the application of either party. Another interesting
type of board is that representing two or more groups of workmen and
sometimes their employers, with the object of settling "demarcation"
disputes between the groups of workmen (i.e. questions as to the limits
of the work which each group may claim to perform). Examples of such
boards are those representing shipwrights and joiners on the Clyde, Tyne
and elsewhere. While the arrangements for voluntary conciliation and
arbitration differ in this way in various industries, there is an
equally wide variation in the character and range of questions which the
boards are empowered to determine. For example, some boards in the coal
trade (e.g. the conciliation boards in Northumberland and the so-called
"Federated Districts") deal solely with the general rate of wages.
Others, e.g. the "joint committee" in Northumberland and Durham, confine
their attention solely to local questions not affecting the counties as
a whole. The Durham conciliation board deals with any general or county
questions. This distinction between "general" and "local" questions
corresponds nearly, though not entirely, to the distinction often drawn
between questions of the terms of future employment and of the
interpretation of existing agreements. Some conciliation boards are
unlimited as regards the scope of the questions which they may consider.
This was formerly the case with the boards in the boot and shoe trade,
but under the "terms of settlement" of the dispute in 1895 drawn up at
the Board of Trade, certain classes of questions (e.g. the employment of
particular individuals, the adoption of piece-work or time-work, &c.)
were wholly or partially withdrawn from their consideration, and any
decision of a board contravening the "terms of settlement" is null and
void. A special feature in the procedure for conciliation and
arbitration in the boot and shoe trade, is the deposit by each party of
L1000 with trustees, as a financial guarantee for the performance of
agreements and awards. A certain class of conciliation boards, mostly in
the Midland metal trades, were attached to "alliances" of employers and
employed, having for their object the regulation of production and of
prices (e.g. the Bedstead Trade Wages Board). None of these alliances,
however, have survived.
Legislation in the United Kingdom.
At all events up to the year 1896, the development of arbitration and
conciliation as methods of settling labour disputes in the United
Kingdom was entirely independent of any legislation. Previously to the
Conciliation Act of 1896 several attempts had been made by parliament to
promote arbitration and conciliation, but with little or no practical
result, and the act of 1896 repealed all previous legislation on the
subject, at the same time excluding the operation of the Arbitration Act
of 1889 from the settlement of "any difference or dispute to which this
act applies." The laws repealed by the Conciliation Act need only a few
words of mention. During the 18th century the fixing of wages by
magistrates under the Elizabethan legislation gradually decayed, and
acts of 1745 and 1757 gave summary jurisdiction to justices of the peace
to determine disputes between masters and servants in certain
circumstances, although no rate of wages had been fixed that year by the
justices of the peace of the shire. These and other laws, relating
specially to disputes in the cotton-weaving trade, were consolidated and
amended by the Arbitration Act of 1824. This act seems chiefly to have
been aimed at disputes relating to piece-work in the textile trades,
though applicable to other disputes arising out of a wages contract. It
expressly excluded, however, the fixing of a rate of wages or price of
labour or workmanship at which the workmen should in future be paid
unless with the mutual consent of both master and workmen. The act gave
compulsory powers of settling the disputes to which it relates on
application of either party to a court of arbitrators representing
employers and workmen nominated by a magistrate. The award could be
enforced by distress or imprisonment. The act was subsequently amended
in detail, and by the "Councils of Conciliation" Act of 1867 power was
given to the home secretary to license "equitable councils of
conciliation and arbitration" equally representative of masters and
workmen, who should thereupon have the powers conferred by the act of
1824. The act contains provisions for the appointment of conciliation
committees, and other details which are of little interest seeing that
the act was never put into operation. Another amendment of the act of
1824 was made by the Arbitration (Masters and Workmen) Act of 1872,
which contemplated the conclusion of agreements between employers and
employed, designating some board of arbitration by which disputes
included within the scope of the former acts should be determined. A
master or workman should be deemed to be bound by an agreement under the
act, if he accepted a printed copy of the agreement and did not
repudiate it within forty-eight hours. Like the previous legislation,
however, the act of 1872 was inoperative. The evidence given before the
Royal Commission on Labour (1891-1894) disclosed the existence of a
considerable body of opinion in favour of some further action by the
state for the prevention or settlement of labour disputes, and some
impetus was given to the movement by the settlement through official
mediation of several important disputes, e.g. the great coal-miners'
dispute of 1893 by a conference presided over by Lord Rosebery, the
cab-drivers' dispute of 1894 by the mediation of the home secretary
(H.H. Asquith), and the boot and shoe trade dispute of 1895 by a Board
of Trade conference under the chairmanship of Sir Courtenay Boyle. In
these, and a few other less important cases, the intervention of the
Board of Trade or other department took place without any special
statutory sanction. The Conciliation Act passed in 1896 was framed with
a view to giving express authorization to such action in the future.
This act is of a purely voluntary character. Its most important
provisions are those of section 2, empowering the Board of Trade in
cases "where a difference exists or is apprehended between any employer,
or any class of employers, and workmen, or between different classes of
workmen," to take certain steps to promote a settlement of the
difference. They may of their own initiative hold an inquiry or
endeavour to arrange a meeting between the parties under a chairman
mutually agreed on or appointed from the outside, and on the application
of either party they may appoint a conciliator or a board of
conciliation who shall communicate with the parties and endeavour to
bring about a settlement and report their proceedings to the Board of
Trade. On the application of both parties the Board of Trade may appoint
an arbitrator. In all cases the Board of Trade has discretion as to the
action to be taken, and there is no provision either for compelling the
parties to accept their mediation or to abide by any agreement effected
through their intervention. There are other provisions in the act
providing for the registration of voluntary conciliation boards, and for
the promotion by the Board of Trade of the formation of such boards in
districts and trades in which they are deficient. During the first
eleven years after the passage of the act the number of cases arising
under section 2 (providing for action by the Board of Trade for the
settlement of actual or apprehended disputes) averaged twenty-one per
annum, and the number of settlements effected fifteen. In the remaining
cases the Board of Trade either refused to entertain the application or
failed to effect a settlement, or the disputes were settled between the
parties during the negotiations. About three-quarters of the settlements
were effected by arbitration and one-quarter by conciliation. A number
of voluntary conciliation boards formed or reorganized since the passing
of the act provide in their rules for an appeal to the Board of Trade to
appoint an umpire in case of a deadlock. At least thirty-six trade
boards are known to have already adopted this course. The figures given
above show that the Conciliation Act of 1896 has not, like previous
legislation, been a dead letter, though the number of actual disputes
settled is small compared with the total number annually recorded.
Proposals for compulsion.
Arbitration and conciliation in labour disputes as practised in the
United Kingdom are entirely voluntary, both as regards the initiation
and conduct of the negotiations and the carrying out of the agreement
resulting therefrom, In all these respects arbitration, though
terminating in what is called a binding award, is on precisely the same
legal footing as conciliation, which results in a mutual agreement.
Various proposals have been made (and in some cases carried into effect
in certain countries) for introducing an element of compulsion into this
class of proceeding. There are three stages at which compulsion may
conceivably be introduced, (1) The parties may be compelled by law to
submit their dispute to some tribunal or board of conciliation; (2) the
board of conciliation or arbitration may have power to compel the
attendance of witnesses and the production of documents; (3) the parties
may be compelled to observe the award of the board of arbitration. The
most far-reaching schemes of compulsory arbitration in force in any
country are those in force in New Zealand and certain states in
Australia. Bills have been introduced into the British House of Commons
for clothing voluntary boards of conciliation and arbitration, under
certain conditions, with powers to require attendance of witnesses and
production of documents, without, however, compelling the parties to
submit their disputes to these boards or to abide by their decisions. In
the United Kingdom, however, more attention has recently been given to
the question of strengthening the sanction for the carrying out of
awards and agreements than of compelling the parties to enter into such
arrangements. An interesting step towards the solution of the difficulty
of enforcement in certain cases is perhaps afforded by the provisions of
the terms of settlement of the dispute in the boot and shoe trade drawn
up at the Board of Trade in 1895. Under this agreement L1000 was
deposited by each party with trustees, who were directed by the
trust-deed to pay over to either party, out of the money deposited by
the other, any sum which might be awarded as damages by the umpire named
in the deed, for the breach of the agreement or of any award made by an
arbitration board in consonance with it. Very few claims for damages
have been sustained under this agreement. Nevertheless it cannot be
doubted that the pecuniary liability of the parties has given stability
to the work of the local arbitration boards, and the satisfaction of
both sides with the arrangement is shown by the fact that the trust-deed
which lapsed in 1900 has been several times renewed by common agreement
for successive periods of two years, and is now in force for an
indefinite period subject to six months' notice from either side.
Theoretically a trust-deed of this kind can only offer a guarantee up to
the point at which the original deposit on one side or the other is
exhausted, as it is impossible to compel either party to renew the
deposit. A proposal was made by the duke of Devonshire and certain of
his colleagues on the Royal Commission on Labour for empowering
associations of employers and employed to acquire, if they desired it,
sufficient legal personality and corporate character to enable them to
sue each other or their own members for breach of agreement. This would
give the association aggrieved by a breach of award the power of suing
the defaulting organization to recover damages out of their corporate
funds, while each association could exact penalties from its members for
such a breach. For this reason the suggestion has met with a good deal
of support by many interested in arbitration and conciliation, but has
been steadily opposed by representatives of the trade unions.
The question is not free from difficulties. The object of the change
would be to convert what are at present only morally binding
understandings into legally enforceable contracts. But apart from the
possibility that some of such contracts would be held by the courts to
be void as being "in restraint of trade," the tendency might be to give
a strict legal interpretation to working agreements which might deprive
them of some of their effectiveness for the settlement of the conditions
of future contracts between employers and workmen, while possibly
deterring associations from entering into such agreements for fear of
litigation. Individuals, moreover, could avoid liability by leaving
their associations. In practice the cases of repudiation or breach of an
award or agreement are not common. In countries like New Zealand, where
the parties are compelled to submit their differences to arbitration,
some of the above objections do not apply.
Statistics of existing agencies.
The following statistics are based on the reports of the Labour
department of the Board of Trade. The number of boards of conciliation
and arbitration known to be in existence in the United Kingdom is nearly
200, but a good many of these do little or no active work. Only about
one-third of these boards deal with actual cases in any one year, the
active boards being mainly connected with mining, iron and steel,
engineering and shipbuilding, boot and shoe and building trades. During
the ten years 1897-1906 the total number of cases considered by these
boards averaged about 1500 annually, of which they have settled about
half, the remainder having been withdrawn, referred back or otherwise
settled. About three-quarters of the cases settled were determined by
the boards themselves and only one-quarter by umpires. The great
majority of the cases settled were purely local questions. Thus more
than half the total were dealt with by the "joint committees" in the
Northumberland and Durham coal trades, which confine their action to
local questions, such as fixing the "hewing prices" for new seams. The
great majority of the cases settled did not actually involve stoppage of
work, the most useful work of these permanent boards being the
prevention rather than the settlement of strikes and lockouts. A certain
number of disputes are settled every year by the mediation or
arbitration of disinterested individuals, e.g. the local mayor or county
court judge.
Future scope and limits.
The extent to which the methods of arbitration and conciliation can be
expected to afford a substitute for strikes and lockouts is one on which
opinions differ very widely. The difficulties arising from the
impossibility of enforcing agreements or awards by legal process have
already been discussed. Apart from these, however, it is evident that
both methods imply that the parties, especially the work-people, are
organized at least to the extent of being capable of negotiating through
agents. In some industries (e.g. agriculture or domestic service) this
preliminary condition is not satisfied; in others the men's leaders
possess little more than consultative powers, and employers may hesitate
to deal either directly or through a third party with individuals or
committees who have so little authority over those whom they claim to
represent. And even where the trade organizations are strong, some
employers refuse in any way to recognize the representative character of
the men's officials. The question of the "recognition" of trade unions
by employers is a frequent cause of disputes (see STRIKES AND
LOCK-OUTS.) It may be observed, however, that it often occurs that in
cases in which both employers and employed are organized into
associations which are accustomed to deal with each other, one or both
parties entertain a strong objection to the intervention of any outside
mediator, or to the submission of differences to an arbitrator. Thus the
engineering employers in 1897 were opposed to any outside intervention,
though ready to negotiate with the delegates chosen by the men. On the
other hand, the cotton operatives have more than once opposed the
proposal of the employers to refer the rate of wages to arbitration, and
throughout the great miners' dispute of 1893 the opposition to
arbitration came from the men. Naturally, the party whose organization
is the stronger is usually the less inclined to admit outside
intervention. But there have also been cases in which employers, who
refused to deal directly with trade union officials, have been willing
to negotiate with a mediator who was well known to be in communication
with these officials, e.g. in the case of the Railway Settlement of
1907.
Apart, however, from the disinclination of one or both parties to allow
of any outside intervention, we have to consider how far the nature of
the questions in dispute may in any particular case put limits to the
applicability of conciliation or arbitration as a method of settlement.
Since conciliation is only a general term for the action of a third
party in overcoming the obstacles to the conclusion of an agreement by
the parties themselves, there is no class of questions which admit of
settlement by direct negotiation which may not equally be settled by
this method, provided of course that there is an adequate supply of
sufficiently skilful mediators. As regards arbitration the case is
somewhat different, seeing that in this case the parties agree to be
bound by the award of a third party. For the success of arbitration,
therefore, it is important that the general principles which should
govern the settlement of the particular question at issue should be
admitted by both sides. Thus in the manufactured iron trade in the north
of England, it has throughout been understood that wages should depend
on the prices realized, and the only question which an arbitrator has
usually had to decide has been how far the state of prices at the time
warranted a particular change of wage. On the other hand, there are many
questions on which disputes arise (e.g. the employment of non-union
labour, the restriction of piece-work, &c.) on which there is frequently
no common agreement as to principles, and an arbitrator may be at a loss
to know what considerations he is to take into account in determining
his award. Generally speaking, employers are averse from submitting to a
third party questions involving discipline and the management of their
business, while in some trades workmen have shown themselves opposed to
allowing an arbitrator to reduce wages beyond a certain point which they
wish to regard as a guaranteed "minimum."
Another objection on the part of some employers and workmen to
unrestricted arbitration is its alleged tendency to multiply disputes by
providing an easy way of solving them without recourse to strikes or
lock-outs, and so diminishing the sense of responsibility in the party
advancing the claims. It is also sometimes contended that arbitrators,
not being governed in their decisions by a definite code of principles,
may tend to "split the difference," so as to satisfy both sides even
when the demands on one side or the other are wholly unwarranted. This,
it is said, encourages the formulation of demands purposely put high in
order to admit of being cut down by an arbitrator. One of the chief
practical difficulties in the way of the successful working of permanent
boards of conciliation, consisting of equal numbers of employers and
employed, with an umpire in case of deadlock, is the difficulty of
inducing business men whose time is fully occupied to devote the
necessary time to the work of the boards, especially when either side
has it in its power to compel recourse to the umpire, and so render the
work of the conciliation board fruitless. In spite of all these
difficulties the practice of arranging differences by conciliation and
arbitration is undoubtedly spreading, and it is to be remembered that
even in cases in which theoretically a basis for arbitration can
scarcely be said to exist, recourse to that method may often serve a
useful purpose in putting an end to a deadlock of which both parties are
tired, though neither cares to own itself beaten.
_New Zealand._--The New Zealand Industrial Conciliation and Arbitration