The idea of those who regard arbitration as a universal substitute for war appears to be that the relations between States can be put upon a basis resembling that of the relations between citizens in a settled and civilised country like our own.  In Great Britain we are accustomed to a variety of means for settling disagreements between persons.  There are the law courts, there are the cases in which recourse is had, with the sanction of the law courts, to the inquiry and decision of an arbitrator, and in all our sports we are accustomed to the presence of an umpire whose duty it is impartially to see that the rules of the game are observed and immediately to decide all points that might otherwise be doubtful.

The work of an umpire who sees that the rules of the game are observed is based upon the consent of the players of both sides.  Without that consent there could be no game, and the consent will be found to be based upon the fact that all the players are brought up with similar traditions and with like views of the nature of the game.  Where this unity does not exist, difficulties constantly arise, as is notoriously the case in international sports.  The attempt has been made, with constantly increasing success, to mitigate the evils of war by the creation of institutions in some way analogous to that of the umpire in a game.  The Declaration of London, recently published, is an agreement between the principal Powers to accept a series of rules concerning maritime war, to be administered by an International Prize Court.

The function of an arbitrator, usually to decide questions of fact and to assess compensation for inconvenience, most commonly the inconvenience occasioned to a private person by some necessary act of the State, also rests upon the consent of the parties, though in this case the consent is usually imposed upon them by the State through some legislative enactment or through the decision of a court.  The action of a court of law, on the other hand, does not rest upon the consent of the parties.  In a civil action the defendant may be and very often is unwilling to take any part in the proceedings.  But he has no choice, and, whether he likes it or not, is bound by the decision of the court.  For the court is the State acting in its judicial capacity with a view to insure that justice shall be done.  The plaintiff alleges that the defendant has done him some wrong either by breach of contract or otherwise, and the verdict or judgment determines whether or not this is the case, and, if it is, what compensation is due.  The judgment once given, the whole power of the State will be used to secure its execution.

The business of a criminal court is the punishment of offenders whom it is the function of the State to discover, to bring to trial, and, when convicted, to punish.  The prisoner’s consent is not asked, and the judgment of the court is supported by the whole power of the State.