swer to the protest lodged by Austria against Captain Ingraham's action. The links in Marcy's chain of reasoning, in this celebrated paper, were that, as the seizure and rescue of Koszta took place within the jurisdiction of a third power, the respective rights of the United States and of Austria, as parties to the controversy that had arisen concerning that transaction, could not be determined by the municipal law of either country, but must be determined by international law; that, as the previous political connection between Koszta and the Austrian government had, by reason of the circumstances of his emigration and banishment, been, even under the laws of Austria, dissolved, he could not at the time of his seizure be claimed as an Austrian subject, nor could his seizure as such be justified by Austria, either under international law or her treaties with Turkey; that the seizure in its method and circumstances constituted an outrage so palpable that any by-stander would have been justified, on elementary principles of justice and humanity, in interposing to prevent its consummation; that there were, however, special grounds on which the United States might, under international law that being under the circumstances the only criterion assert a right to protect Koszta; that, although he had ceased to be a subject of Austria, and had not become a citizen of the United States, and therefore could not claim the rights of a citizen

under the municipal laws of either country, he might under international law derive a national character from domicil; that even if Koszta was not by reason of his domicil invested with the nationality of the United States, he undoubtedly possessed, under the usage prevailing in Turkey, which was recognized and sanctioned by international law, the nationality of the United States from the moment when he was placed under the protection of the American diplomatic and consular agents and received from them his tezkereh; that, as he was clothed with the nationality of the United States, and as the first aggressive act was committed by the procurement of the Austrian functionaries, Austria, if she upheld what was done, became in fact the first aggressor, and was not entitled to an apology for the measures adopted by Captain Ingraham to secure his release; that Captain Ingraham's action was further justified by the information which he received of a plot to remove Koszta clandestinely, in violation of the amicable arrangement under which he was to be retained at Smyrna while the question of his nationality was pending; and finally, that, as the seizure of Koszta was illegal and unjustifiable, the President could not consent to his delivery to the Austrian consul-general at Smyrna, but expected that measures would be taken to cause him to be restored to the condition he was in before he was seized.

On October 14, 1853, the American consul and the Austrian consul-general at Smyrna, acting under instructions from the American and Austrian ministers at Constantinople, requested the French consul-general to deliver Koszta over into the custody of the United States; and on the same day Koszta took passage on the bark Sultana for Boston.

VIII

INTERNATIONAL ARBITRATION

ALTHOUGH the independence of the United States was won by the sword, the founders of the American Republic were accustomed to look upon war as a measure that could be justified only as a choice of evils. Standing armies and elaborate preparations for war they deprecated as a menace to liberty. Having proclaimed as the basis of their political system the consent of the governed, they cherished as their ideal a peaceful nation, always guided by reason and justice. In order that this ideal might be attained, they perceived the necessity of establishing international relations on definite and sure foundations. To that end they became ardent expounders of the law of nations; and their predilection for legal methods naturally found expression in the employment of arbitration for the settlement of international differences.

By arbitration we mean the determination of controversies by international tribunals judicial in their constitution and powers. Arbitration is not to be confounded with mediation. Mediation is an

advisory, arbitration a judicial, process. Mediation recommends, arbitration decides. And while it may be true that nations have for this reason sometimes accepted mediation when they were unwilling or reluctant to arbitrate, yet it is also true that they have settled by arbitration questions which mediation could not have adjusted. It is, for instance, hardly conceivable that the question of the Alabama claims could have been settled by mediation. The same thing may be said of many boundary disputes. The importance of mediation, as one of the forms of amicable negotiation, should not, indeed, be minimized. A plan of mediation even may, as in the case of The Hague convention for the peaceful settlement of international disputes, form a useful auxiliary to a system of arbitration; but the fact should nevertheless be understood that the two processes are fundamentally different, and that, while mediation is only a form of diplomacy, arbitration consists in the application of law and of judicial methods to the determination of international disputes.

The government of the United States had been in existence only five years, when it found occasion to employ arbitration for the settlement of serious differences with the mother-country. Important provisions of the treaty of peace remained unexecuted. Various posts along the northern frontier were still held by the British forces, and the British govern