Papal Arbitration

An institution almost coeval with the papacy itself. The principle of arbitration presupposes that the individuals or groups of individuals submitting to arbitrament are united in some common bond. As soon therefore as this common bond has come prominently before public opinion, there necessarily results a tendency to settle disputes by reference to it. Thus the growth of law, i.e. the gradual evolution from private revenge or vendetta to the judgment of some public authority, can in the history of any known nation or tribe be traced parallel with the awakening feeling of social solidarity. It was just because men began to realize, however rudely, that they were not single units but members of a society, that they understood how every tort or wrong-doing disturbed not merely the individual directly affected, but the whole body of which he was a member. It was this recognition of the social disadvantages of disorder that led to compromise, to mutual pledges, to trials by combat, to ordeals, and eventually to the regulations of courts of law. This is most patently manifest among the Northern nations in the primitive history of the jury system.

Now this same principle was bound to operate internationally whenever the various groupings of Europe realized their solidarity. The same undoubted advance would be made when men became conscious that the theory into which law had developed as an adjudication between individuals by the society, was applicable also in matters of international dispute. But this consciousness required to be preceded by the recognition of two principles:

• (1) that nations were moral persons
• (2) that they were united in some common organism.

The first principle was too abstract in its nature to be professed explicitly at once (Figgis, "From Gerson to Grotius", vi, 177). The second would be very quickly recognized if only some concrete symbol of it could become evident to public opinion. This concrete symbol was fortunately at hand, and the result was arbitration. For the medieval papacy directing the conscience of Europe, legislating for the newly-converted peoples, drawing to itself the representatives of each national episcopate, constituting a sacred shrine for royal pilgrimages, could not fail to impress on the Christian nations a sense of their common faith. It was the papacy which therefore at one and the same time, by treating each nation as a separate unit, expressed in a primate with his suffragan bishops, and yet by legislating identically in matters of faith and morals for all the nations, expounded the double thesis of nationalism and internationalism. It was a standing concrete expression of the two principles aforesaid, viz, that the nations were separate individuals, yet members of a Christian brotherhood, moral persons yet subject to the common law of Christendom. Hence, owing to the circumstances of Western politics, papal arbitration was a necessary consequence of the very idea of the papacy. In treating of papal arbitration, three points must be set out:

• (A) the principles on which the popes claimed the right to arbitrate, i.e. the papal theory of the relationship between the Holy See and the temporal powers;
• (B) the most important cases of historical arbitration by the popes ;
• (C) the future opportunity for this arbitration.

A. The Papal Theory

It is evident that before the conversion of Constantine there could have been little question of the relations between Church and State. The Church was undeniably conscious of her independence, but up to that date Christianity had practically none but spiritual duties to perform. The Apostolic writings preach submission to authority and do not at all raise the problem of the adjustment of the relationship between pope and Cæsar. The conversion of Constantine therefore opened up a large field of speculation. This begins indeed from the assembling of the General Council of Nicæa (325). Here, according to Rufinus (H. E., I, ii, in P .L., XXI, 470), the emperor himself laid the basis of all development in this direction. He declared that God had given to the priests (i.e. to the whole ecclesiastical corporation ) power to judge even emperors ( et ideo nos a vobis recte judicamur ).

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Hosius of Cordova, who had been president of that council, in his defence of Athanasius has the same thought, noting that God had given to Constantine the empire and to the priesthood He had confided the Church (quoted by St. Athanasius, "History of the Arians", xliv, in P. G., XXV, 717). This entire separation of the two powers, ecclesiastical and lay, is generally laid down with very definite clearness by the earlier writers ( Lucifer of Cagliari , "Pro Athanasio", in P. L., XIII, 826; St. Optatus, "De Schismate Donatistarum", III, iii, in P. L., XI, 999). Not that any slight is put upon the imperial dignity, for to the prince first of all is applied the title which subsequently becomes proper to the popes alone. He is called Vicarius Dei ( Ambrosiaster, "Quæstiones Veteris et Novi Testamenti XCI", in P. L., XXV, 2284; Sedulius Scotus, "De Rectoribus Christianis", 19 in P. L., CXII, 329). Yet he has no jurisdiction over the spiritual functions of his subjects, "for who", says St. Ambrose (Ep., XXI, 4, ad Valentinum, II, in P. L., XVI, 1046), "would venture to deny that in matters of faith, it is the bishops who sit in judgment over emperors, and not the emperors who sit in judgment over bishops ?"; and the two popes who first have any prominent teaching on the matter, Felix III (483) and Gelasius I (492), use precisely the same language, describing the Church and the State as two parallel powers, entirely separate.

"The emperor", says Gelasius in an epigram (Ep. XV, 95, ad Episcopos Orientales, in P. L., LIX), "is the Church's son, not sovereign" ( Filius est non prœsul ecclesiœ ). This pope has fortunately left us two complete treatises on this question. In his Fourth Tractate and his Eighth Letter (P. L., LIX, 41), he formulates his views, which completely agree with this idea of two different orders, separate, yet in so far interdependent that they both work towards the same purpose, i.e. the salvation of the souls of men. The next step is marked by the forcible and clear doctrine of St. Gregory the Great (590). His relations with the emperors are too well-known to need restatement. It will be sufficient to note that, in his own words, he would go as far as possible to accept every law and statute of the imperial throne. "If what he does is according to the canons, we will follow him; if it be contrary to the canons, then so far as may be without sin, we will bear with him" (Epist., Lib. XI, 47, in P. L., LXXVII, 1167). Indeed, when in actual fact the Emperor Maurice prohibited public officials from entering monasteries, Gregory promulgated the decree, though at the same time warning Maurice that it by no means agreed with the declared will of the Divine Omnipotence. By thus acting he said he had performed his duty of obeying the civil power and yet had kept his faith with God by declaring the matter of that obedience unlawful (Lib. III, 65, in P. L., LXXVII, 663).

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A last example of the papal doctrine of this period may be taken from the writings of this same pope. Maurice had given judgment in some matter, contrary to the sacred laws and canons. The Bishop of Nicopolis, who as Metropolitan of Corcyra happened to be concerned in the affair, appealed to the pope against the imperial rescript. Gregory wrote admitting the bishop's interpretation to be correct and adhering to it, yet declared that he could not dare publicly to censure the emperor lest he should seem in any way to oppose or despise the civil power. (Lib. XIV, 8, in P. L., LXXXII, 1311). His whole idea appears to have been that the prince represented God. Every action therefore of the public authority (whether it tended to the sacred ends for which Government was founded, or was apparently destructive of ecclesiastical liberties) was equally to be respected or at least not publicly to be flouted. This curious position taken up by the popes, of excessive subservience to the civil rulers, was due to a threefold cause:

• (a) The need of correcting a certain anarchical spirit noted by the Apostles (1 Peter 2:15, 16; Galatians 5:1 ; 2 Corinthians 3:17 ; 1 Thessalonians 4:10, 11, 5:4 ).
• (b) The relation in which the protected Church stood to the first Christian emperor, represented by the words of St. Optatus, "De Schismate Donatistarum", III, iii: "Non enim respublica est in Ecclesia, sed Ecclesia in republica est . . . Super Imperatorem non sit nisi solus Deus" (The state is not in the Church, but the Church is in the state . . . Let God alone be above the emperor).
• (c) The influence of the Biblical language as regards the theocratic kingship of Israel.

The teaching of the papacy that civil authority was held independently of any ecclesiastical gift was continued even in the days of Charlemagne, whose father owed so much of his power to papal influence (Decretals, I, 6, 34). Yet even the new line of Cæsars claimed to hold their power of God. Their titles run "Gratia Dei Rex" or "Per misericordiam Dei rex" etc. (cf. Coronation of Charlemagne in "Journal of Theological Studies", April and July, 1901). Thus through the ninth and tenth centuries the separation-theory of Pope Gelasius was generally taught and admitted. Both pope and emperor claimed to hold their power direct from God. He is the sole source of all authority. A new theory, however, was developing. While admitting that civil rulers are of God, the good by God's direct appointment, the wicked by God's permission for the chastisement and correction of the people's sin ( Hincmar, "Ep. xv ad Karolum regem", in P. L., CXXVI, 98), some writers partially broach the idea that without justice the king is no king at all, but a tyrant (Mon. Germ. Hist.: Epp., IV, "Epistola Variæ Karoli Magni Script.", 7 etc.), for he must govern according to the laws which in turn depend on the consent of the people ( Hincmar, "De Ordine Palatii", 8, in M. G. H.: Leg., sect. II, vol. II).

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Thus the compact-theory of a mutually binding engagement between sovereign and subjects enters the full stream of European political thought. It is perpetuated in the Old English Coronation oaths (Stubbs, "Select Charters", Oxford, 1900, 64 etc.). The use made of this theory by the popes will appear shortly. So far then the papal political ideals sketched out two authorities, independent, separate; the one supreme in temporal matters, the other in spiritual. Then in the tenth century, the point was raised, at first in a perfectly academic way, as to the relative importance of these two spheres of Government, as to which took precedence of the other. At first, the result of the controversy left things more or less as they had been. The one side asserted that the priesthood was the higher, because, while it was true that the priests had to render obedience to kings in temporal matters and the kings to priests in spiritual matters, yet on the priests rested the further burden of responsibility of seeing that the king performed his temporal duties in a fitting way, i.e. that the king's actions were matters of duty, therefore matters of conscience and therefore matters that lay under the spiritual jurisdiction of the Church.

These arguments may be briefly summarized thus:

• (a) that both powers lay within the physical pale of the Church ;
• (b) that the priest was responsible for seeing that the king did his duty ;
• (c) that the priest consecrated the king and not vice versa.

The others ("Tractatus Eboracensis", in M. G. H.: Libelli de Lite, III, 662 sq.) replied by asserting that the emperor had no less to see that the Church affairs were properly conducted (as much later Sigismund at Council of Constance ; Lodge, "Close of Middle Ages ", London, 1904, 212). Thus Leo III and Leo IV had submitted practically to the interference of Charlemagne (800) and Louis II (853); and the concrete example of the Synod of Ponthiou (853), summoned by the pope and commanded by the emperor, was a standing example of this general responsibility of each for the other (M. G. H.: Leg., II, vol. II, no. 279). It is interesting however to recall a distinction thrown out almost at hazard by a twelfth-century canonist (Rufinus, "Summa Decretorum", D. xxi. c. 1). Commenting on a supposed letter of Nicholas II to the people of Milan, he distinguishes the papal right to interfere in temporal matters by conceding to him not a jus administrationis but a jus jurisdictionis , i.e. the right of consecrating, etc.

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The advent (1073) of Gregory VII to the papal chair greatly affected the policy of the Holy See (Tout, "Empire and Papacy ", London, 1909, 126; Gosselin, "Power of the Pope in the Middle Ages "). But it is not so much his actions as his theories which are here under consideration. He took over the old patristic teaching that all rule and government had its origin in the fall of Adam, that original sin caused the necessity for one man to have command over another. Consequently he had hard things to say of the imperial position. Moreover he claimed more power than his predecessors. Both he and the emperor took extreme views of their respective offices. The pope wished to put himself at the head of the temporal rule, exercising the power described in Jeremias i, 10. The emperor spoke of his traditional right of appointing and deposing popes. Neither can be taken as representing the general sentiment of their time. The story of Canossa with its legendary details is no more representative of public opinion in the eleventh century than is the dramatic surrender of Pascal II in the twelfth. Hildebrand, despite his high courage and noble character, does not really continue the teaching of his predecessors.

Eventually, the Concordat of Worms (23 Sept., 1122) took up and handed down the average medieval political practice, Without satisfying the extreme representatives of papal or imperial claims. Gregory, however, developed the contractual idea of the Coronation oath. This he declared to be, as were all other oaths, under the Church's dominion, and consequently could be annulled by papal authority, thus releasing subjects from obedience to their sovereign (Decretum, causa xv, Q. 6, c. 2; Stephen of Tournai, "Summa Decretorum", causa xv, Q. 6, c. 2. Auctorit. iii). The next great papal ruler, Innocent III (1198-1216), did not take the same attitude toward temporal power, though in personal exercise of authority he exceeded Gregory. He says explicitly: "We do not exercise any temporal jurisdiction except indirectly" (Epistolæ, IV, 17, 13). He interfered, it is true, to annul the election of Philip of Suabia and to confirm Otto in the imperial dignity, but he was at pains to point out that his legate was only a denunciator , or declarer of worthiness, not a cognitor or elector. The pope could not override the electoral system of the empire, he could only judge, confirm, and, in divided elections only, decide on the candidate (Decretals, 1, 6, 34; Carlyle, "History of Mediæval Political Thought", II, 217; Barry, "Papal Monarchy", XVIII, 292).

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Again in the dispute between the French and English Kings, Innocent III distinctly declares that he makes no claim to settle matters of fiefs ( non enim intendimus judicare de feudo cujus ad ipsum spectat judicium , Decretals, ii, I, 13). Nor had he any intention of diminishing the royal authority. His whole justification rests on three grounds:

• (a) the English king had appealed to him against his brother-king on the Gospel principle, for it was a matter of sin, i.e. against peace;
• (b) Philip had himself appealed earlier against Richard I ;
• (c) A treaty had been made, confirmed by oaths, then broken.

This therefore lay within the pope's jurisdiction. On another occasion, he even went so far as to order the Bishop of Vercelli to declare null and void any letters produced from the Holy See dealing with matters that belonged to the secular courts of Vercelli, as he would only interfere on appeal, especially since the imperial dignity was at the moment vacant (Decretals, ii, 2, 10; cf. Alexander III's action in a similar case, Decretals, ii, 2, 6). Even excommunication was in his hands no arbitrary power, for, if it were applied unjustly or even unreasonably, he protested that it would be null and void (Decretals, v, 39, 28). He retained of course in his own hands the right to decide whether a particular matter came within the cognizance of the spiritual courts or not (Ibid., iv, 17, 13).

After Innocent's death, the attitude of Gregory VII was revived by Boniface VIII (1294-1303) and John XXII (1316-34). Though some twenty years separate their reigns, these two pontiffs held practically the same attitude towards temporal rulers and gave rise to a large polemical literature, which is practically continuous for some fifty years (see Scholz and Riezler, infra , bibliography). It seemed to those times that either pope or emperor must be supreme. The writers who defend the lay side are of many shades of feeling: Pierre du Bois (Wailly, "Summaria Brevis", 1849, "Mémoires de l'Académie des Inscriptions" etc., 435-94); Marsilius of Padua (Poole, "Illustrations of the History of Mediæval Thought", 276 et passim ); William of Ockham (ibid. 260); John Wycliff (De civili dominio, 1 cap., 17 fol., 40, c., ibid. 284). Not merely do they protest against papal interference, but, as a counterblast, endeavour to make the king or emperor — according as they defend Philip the Fair , Edward I, or Louis of Bavaria — take the most important place in the working of the Church's internal organism (cf. Baldus de Ubaldis, 1327-1400, in his "Consilia", 228, n. 7: Imperator est dominus totius mundi et Deus in terra , i.e. the emperor is lord of the whole world and God on earth).

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Certain defenders of the Holy See are no less vehement. They rightly forbid Cæsar to meddle with matters within the spiritual sphere of life; but, not content with this, they endeavour to put the emperor directly under the pope. Augustinus Triumphus (De potestate ecclesiastica XXXVIII, 1, 224), and Ægidius Colonna (De ecclesiastica potestate, II, 4) assert that all temporal rule comes ultimately from the pope, that he alone has the supreme plenitude of power, and that none can be absolved from his high jurisdiction. While these high claims, the inheritance of ages of universal faith when the popes were really the saviours of popular liberties, were being thus set forth, the power of the civil authority had de facto enormously increased. The theorizing of Marsilius of Padua, Ockham, and others led to the doctrine of unrestrained royal absolutism (Poole, loc. cit., 259). The German princes with their territorializing ideals, the French kings with their strong and efficient monarchy, and the English Tudor sovereigns no longer brooked interference from Rome even in purely spiritual matters. The phrase of the Treaty of Westphalia (1648) cujus regio ejus religio , i.e. the religion of the prince is the religion of the land, sums up the secular reply to the ecclesiastical order.

After the Reformation had served, even in countries like France and Spain which did not adopt the new religion, the purpose of fettering conscience even more than before, the State had in actual practice put the Church under its heel. The State continued to claim, because it exercised, the power to interfere and rule in all matters, whether spiritual or temporal. The Church claimed, though it no longer freely exercised, the right to independence, nay supremacy, in all matters affecting religion, and to be in some way the fountain of all temporal dominion (St. Thomas, "Quodlibet", 12, Q. xiii, a. 19, ad 2um: Reges sunt vasalli Ecciesiœ ). Francisco Suárez and later theologians certainly moderate the vehemence of Augustinus Tnumphus and his companions. It is true of course that the post-Tridentine writers expound what has been called "the indirect power" of the pope in civil affairs, while they curb in various ways the growing civil absolutism of the times. The name of sovereignty was withdrawn, but its substitute was suzerainty, which meant little less than the other (Figgis, "From Gerson to Grotius", VI, 181). Hence the undeniable tendency of Catholic theologians to repeat in clear language the cases in which rulers may lawfully be put to death. Hence also their unqualified defence of popular rights. Says Filmer ("Patriarcha", I, i, 2, 1880) concerning the power of the people to deprive or correct the sovereign. "Cardinal Bellarmine and Calvin both look asquint this way".

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No doubt in this long controversy both ecclesiastical and secular writers went too often to extremes. It is in the rights that each allows the other, that we must look for the more workable hypothesis. Thus when the lay writers describe the spiritual rule of the Papacy ( Dante, "De Monarchia"; Ockham, "Octo Questiones", q. 1, c. 6, ad 2), they depict almost literally the position of a Leo XIII or a Pius X, prophesying the greatness of such an office. And when the ecclesiastico-political writers sketch their theory of a state (Nicolas of Cusa, "Concordantia Catholica"; Schardius, "Syntagma"), directing, ordering, educating the free lives of free citizens, they are no less prophets of a desirable order. Moreover Pius IX expressly declared that, for their execution in the temporal sphere, the ecclesiastical ideals depended no less than the lay ideals on the consent and custom of the people, in the absence of which the papacy no longer claims to exercise power and rights, that public law and common consent once accorded to the Supreme Judge of Christendom for the common welfare (Discorso agli Accademici di Religione Catholica, 20 July, 1871).

It appears, therefore, that in the past all papal attempts to end wars and decide between contending rights of disputing sovereigns, were really in the nature of arbitration. Popes like Innocent III never claimed to be the sources of temporal rule, or that whatever they did for the peace of Europe was done by them as supreme temporal rulers; but only on the invitation or acceptance of the princes interested. Even popes like Gregory VII, Boniface VIII, and others, who exercised most fully their spiritual prerogatives, were unable to act efficiently as peacemakers, until they were called in by those at war.

B. Historical Cases of Papal Arbitration

The various interpositions of Innocent III to allay the differences in European diplomacy, such as it then was, have been already alluded to. It will be better to pass at once to later historical examples.

The popes made frequent efforts to negotiate between the Kings of France and England during the Hundred Years' War, but the most famous attempt is that of Boniface VIII in 1297. It came just after the controversy between Philip the Fair and the pope concerning the Bull "Clericis laicos". Eventually Boniface gave up many of his earlier demands, partly through pressure from the French king, partly because he found that he had gone too far, partly in the interests of European peace. The more fully to achieve the latter purpose, he offered to arbitrate in the quarrel that had been further complicated by the alliance formed between the Flemish and the English. The Cardinal of Albano and Præneste was sent to Creil on 20 April, 1297. But the temper of French thought is expressed in the protest of King Philip that he would submit to arbitration as did Edward I and the Count of Flanders, but that he looked for nothing more than arbitration, not for recourse to the pope as to a higher feudal court. He laid down three propositions and completed them by a practical conclusion:

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• (a) The government of France belonged solely to the king;
• (b) the king recognized no temporal superior;
• (c) he submitted his temporal affairs to no man living.

Therefore he came to the Roman Court for arbitration, not as to Boniface VIII the supreme sovereign pontiff, but as to the lawyer Benedetto Gaetani. The terms of the arbitrament are not of present interest; this only should be noted, that Boniface placated the French king by deciding largely in his favour, to the disgust of the Count of Flanders, but issued his award in a Bull (Lavisse, "Hist. de France" (Paris, 1901).

One of the first public acts of Alexander VI was to effect a settlement between Spain and Portugal. These two nations had been foremost in underdertaking voyages of discovery in the East and West. The result was, that as each expedition on landing annexed the new-found territories to its own home government, there was continual friction between the rival nations. In the interests of peace, Alexander VI offered to arbitrate between the two countries. He issued his Bull "Inter Cætera," 14 May, 1493, fixing the line at meridian of 100 leagues west of the Azores and Cape Verde Islands — assumed to be practically of the same longitude — Spain to have the western, Portugal the eastern division. The following year (7 June) by the treaty of Tordesillas the imaginary line was moved to 370 leagues west of Cape Verde. To this the pope as arbitrator assented, and thus averted war between the two countries ("Civiltà Cattolica", 1865, I, 665-80; Winsor, "History of America", 1886, I, 13, 592; "Cambridge Modern History", I, 23-24).

More curious examples are found in the invitation given to Leo X and later to Clement VII to arbitrate between Russia and Poland over Lithuania (Rombaud, "History of Russia ", London, 1885). The success of this led to Gregory XIII being asked to settle the difference between Bathory of Poland and Ivan the Terrible. Gregory between 1572 and 1583 sent to Moscow the Jesuit Antonio Possevino , who arranged peace between them. Ivan ceded Polotsk and all Livonia to the Poles ("Revue des Questions Historiques," Jan., 1885).

Perhaps the best-remembered case is that of 1885, when war was averted between Germany and Spain by the arbitration of Leo XIII. It was over the question of the Caroline Islands, which though discovered by Spain had been practically abandoned for many years. England and Germany had presented a joint note to Spain, refusing to acknowledge her sovereignty over the Caroline and Palao group of islands. German colonists had been established there. But the climax was reached when on 25 August, 1885, both Spanish and German war vessels planted the flags of their respective countries and took solemn possession of Yap. On 24 September, Bismarck, out of compliment to Spain and to propitiate the pope (Busch, "Life of Bismarck ", 469-70, London, 1899), referred the matter to Leo XIII. The pope gave his award on 22 October, succeeding perfectly in adjusting the conflicting claims of Spanish sovereignty and German interests. Finally the whole matter was amicably accepted and signed at the Vatican by both powers on 17 December of the same year ( O'Reilly, "Life of Leo XIII", xxxiii, 537-54).

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Lastly, in 1897, the same pontiff arbitrated between Hayti and San Domingo. But the terms of his arbitration do not appear to have been published (Darby, "Proved Practicability of International Arbitration ", London, 1904, 19). For the celebrated case of Adrian IV and his gift of Ireland to Henry II, see ADRIAN IV.

C. Future

The increasing movement of arbitration, growing stronger with each fresh exercise of it, together with the fact that owing to the action of Italy the popes have been excluded from the Hague Conference, makes the thought suggest itself of how far the papacy is situated today to act as a general arbitrator:

• (1) It has ceased to hold any territorial dominion and can therefore stand forward as an impartial judge unlikely to be affected by temporal interests.
• (2) It has interests in too many lands to be likely to favour any one country at the expense of others.
• (3) It is wholly international, and adaptable, because alive, to the various environments of temperament, customs, laws languages, political constitutions, social organizations, in which it finds itself. The clergy of each country are national in the sense of being patriotic ; not in the sense of being separated in matters of faith from Catholics elsewhere.
• (4) It is ruled by a pontiff, ordinarily indeed Italian; but his group of advisers is a privy council drawn from every continent, race, and nation. So detached has he been, that it is precisely three Italian popes who have refused to acknowledge the Italian spoliation of the Patrimony of St. Peter .
• (5) As the greatest Christian force in the modern world its whole influence must be heavily thrown into the scale of peace.
• (6) It has about it a halo of past usefulness, touched about with the mellow hue of time.

It has seemed to men so different as Leibniz (Opera, V, 65), Voltaire (Essais, II, ix), Ancillon (Tableau des Revolutions, I, 79, 106, Berlin, 1803), to have been set in a position not to dictate to, but to arbitrate for, the world. And because it has gone back to the older, simpler, more spiritual theories of Gelasius I, Gregory I, and Innocent III it has now opportunities which were denied it, so long as it claimed the more showy rights of Gregory VII, Boniface VIII, and John XXII. Just as under Pius II the Church created the idea of a European Congress (Boulting, "Æneas Sylvius," 279, 350-51, London, 1908), so it is to be hoped that under her presidency the practice of arbitration by a permanent tribunal may be made more universal, more practicable, and of greater sanction.