THE HAGUE COURT 
 
 JOHN W.FOSTER 
 
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BOUGHT WITH THE INCOME 
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Cornell University Library 
 JX 1919.F75 
 
 Arbitration and the Hague court, 
 
 3 1924 005 213 776 
 
Cornell University 
 Library 
 
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 tine Cornell University Library. 
 
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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924005213776 
 
^p 3ro!)n W> iFoBter. 
 
 AMERICAN DIPLOMACY IN THE ORIENT. 
 8vo, $3.00, fff/. Postag;e 20 cents. 
 
 A CENTURY OF AMERICAN DIPLOMACY: 
 Being a Brief Review of the Foreign Rela- 
 tions of the United States, 1776-1876. 8vo, 
 *3-So. 
 
 HOUGHTON, MIFFLIN & COMPANY, 
 Boston and New York. 
 
ARBITRATION 
 
 AND 
 
 THE HAGUE COURT 
 
ARBITEATION 
 
 AND 
 
 THE HAGUE COURT 
 
 BY 
 
 JOHN W. ROSTER 
 
 President qf the National Arbitration Conference 
 
 BOSTON AND NEW YORK 
 HOUGHTON, MIFFLIN AND COMPANY 
 
 1904 
 
COPYRIGHT 1904 BY JOHN W. FOSTBR 
 ALL RIGHTS RESERVED 
 
 PuUished November 1904 
 
This monograph has been prepared in response 
 to a resolution of the Mohonk Arbitration Confer- 
 ence, asking the writer to present to the pubHc the 
 present phases of the subject of arbitration. 
 
 Washington, November 1, 1904. 
 
CONTENTS 
 
 PAGE 
 
 I. Historical Review 3 
 
 II. The Hague Peace Conference ... 13 
 
 III. Disarmament 24 
 
 IV. The Arbitkation Convention .... 39 
 V. The Hague Court 58 
 
 VI. Suggested Modifications of the Court . 79 
 
 Vn. Special and Joint Commissions ... 87 
 
 VIII. Conclusion 96 
 
 APPENDIX 
 
 A. The Hague Arbitration Convention . . . 107 
 
 B. Anglo-French Treaty of 1903 130 
 
 C. The Netherlands-Denmark Treaty of 1904 . 132 
 
 D. Extract from Treaty between Mexico and 
 
 Spain of 1902 135 
 
 E. Resolution of the Interparliamentary Union . 137 
 
 F. Hon. T. E. Burton's Speech on the Naval 
 
 Appropriation BiU 139 
 
ARBITRATION AND THE 
 HAGUE COURT 
 
ARBITRATION AND THE 
 HAGUE COURT 
 
 HISTORICAL REVIEW 
 
 THE peaceful settlement of disputes 
 among nations by means of arbitration 
 and the prevention of war throughout the 
 world are dependent in great measure upon 
 the acceptability and eflScacy of the Hague 
 Permanent Court of Arbitration. It will be 
 my purpose in the following pages to make 
 this clear to my readers. Having regard 
 to the busy public to whom it is addressed, 
 I shall seek to make the discussion as 
 concise as possible. 
 
 At the outset a seeming embarrassment 
 presents itself in the fact that, while we are 
 considering the subject, two powerful na- 
 
ARBITRATION 
 
 tions are engaged in a sanguinary and waste- 
 ful conflict, which threatens to disturb the 
 peaceful relations of other powers; that 
 the ruler of one of the combatants was the 
 prime mover in the establishment of the 
 Hague Permanent Court ; and that the 
 other combatant was a party to its creation. 
 I trust that, notwithstanding this appar- 
 ently inconsistent and contradictory situa- 
 tion, we shall find in the present state of the 
 aflFairs of the world good foundation of 
 encouragement for the cause of arbitration 
 and for the settlement of international con- 
 troversies by peaceful means, and that the 
 Hague Court has the promise of a wide 
 field of usefulness opening up to it in the 
 relations of the nations with each other. 
 
 For a proper comprehension of the sub- 
 ject, it will be necessary to note briefly the 
 influences leading up to the creation of 
 the Hague Court, and to consider the cir- 
 cumstances under which the Hague Peace 
 Conference was called which framed the 
 4 
 
HISTORICAL REVIEW 
 
 rules by which the Court is governed, the 
 composition and spirit of the Conference, 
 the provisions of the convention estabUsh- 
 ing the Court, and the amendment, if any, 
 required of its present constitution or rules. 
 The sentiment calling for the settlement 
 of international controversies by peaceful 
 methods rather than by the unreasoning 
 and bloody arbitrament of war is not entirely 
 of modern origin. At the diflFerent periods 
 in the past when nations have emerged 
 from barbarism into a more civilized state, 
 there has arisen among men of good-will a 
 desire for peace on earth. In the earliest 
 records of history there are found isolated 
 instances where great political and inter- 
 national questions have been submitted to 
 some arbitrating power. The first attempt 
 at international control for the preserva- 
 tion of peace is found in the Amphicty- 
 onic Council of the Greek States. The 
 prevailing sentiment of that era among men 
 of enlightenment and humane views was 
 5 
 
ARBITRATION 
 
 expressed in the memorable statement of 
 Thucydides, that "it is wicked to proceed 
 against him as a wrongdoer who is ready 
 to refer the question to an arbitrator." 
 
 It must be confessed, however, that the 
 prevailing spirit of the ancients was war- 
 like, but even the triumph of the great war- 
 riors and of the conquering nations was 
 not without benefit to mankind. Under 
 the universal sway of the Roman legions 
 there came times when the doors of the 
 Temple of Janus were closed, and peace 
 was enforced throughout the widespread 
 dominion of the Empire. 
 
 As the nations began to emerge from the 
 Dark Ages, the spirit of peace made feeble 
 efforts to assert itself. During that long 
 night of war and devastation the Pope was 
 the only restraining influence. The earliest 
 advocates for another spirit to control the 
 relations of nations with each other were 
 found among the scholars and writers on 
 international law. Grotius, whose treatise 
 6 
 
HISTORICAL REVIEW 
 
 on the Law of War and Peace has exerted 
 the most profound influence among modern 
 nations, in quoting the statement of Thu- 
 cydides just cited, declared that "espe- 
 cially are Christian Kings and States bound 
 to try this way of avoiding war;" and he 
 proceeded to develop the idea which has 
 had its partial realization in the Hague 
 Conference. He wrote : — 
 
 " Both for this reason and for others it 
 would be useful, and indeed it is almost 
 necessary, that congresses of Christian 
 Powers should be held, in which contro- 
 versies which arise among some of them 
 may be decided by others who are not inter- 
 ested, and in which measures may be taken 
 to compel the parties to accept peace on 
 equitable terms." 
 
 The plan of Henry IV of France for a 
 Council or Congress of European powers 
 to maintain peace among the nations was 
 doubtless inspired by high motives, but it 
 had the defect of a combination of force 
 to bring about the Congress. Later, Wil- 
 7 
 
ARBITRATION 
 
 liam Penn published a scheme "for the 
 Establishment of an European Dyet, Par- 
 liament, or Estates." Likewise, the Abbe 
 Saint Pierre of France, Bentham, Kant, and 
 others in the seventeenth and eighteenth 
 centuries devised and advocated plans for 
 the creation of a congress or tribunal to 
 secure universal and perpetual peace. 
 
 One of the most important events tend- 
 ing to support the project of such a con- 
 gress and tribunal was the adoption by the 
 American Colonies of the Constitution of 
 the United States and the creation of a 
 Supreme Court, before which the States, 
 independent in all that related to their do- 
 mestic government, agreed to bring or to 
 submit all the controversies which might 
 arise between them. A congress or union 
 such as was formed by this Constitution 
 was not one suitable for the civilized na- 
 tions seeking for a combination to preserve 
 universal peace, but the example set by the 
 successful operation of its Supreme Court 
 8 
 
fflSTORICAL REVIEW 
 
 was the cause of much encouragement to 
 the advocates of an international tribunal, 
 before which the nations might submit their 
 controversies for peaceful settlement. 
 
 The nineteenth century was more fruit- 
 ful than any similar era in the submission 
 to the adjudication of special arbitration 
 tribunals of the diflFerences of nations in- 
 solvable by diplomatic methods. The most 
 notable of these, and that which exerted the 
 greatest influence upon the nations, was the 
 arbitration of the bitter controversy between 
 Great Britain and the United States, grow- 
 ing out of the American Civil War and 
 the irritating questions existing with Can- 
 ada, which were peacefully settled by the 
 Treaty of Washington of 1871. Of this the 
 British statesman and writer, John Morley, 
 says : — 
 
 "The Treaty of Washington and the 
 
 Geneva Arbitration stand out as the most 
 
 notable victory in the nineteenth century of 
 
 the noble art of preventive diplomacy and 
 
 9 
 
ARBITRATION 
 
 the most signal exhibition in their history 
 of self-command in two of the three chief 
 democratic powers of the Western World." 
 
 As between these two kindred nations, it 
 came to be the settled policy to adjust their 
 differences which did not yield to diplo- 
 matic methods by a reference of them to 
 special tribunals created for the purpose. 
 In 1890, the Congress of the United States 
 took a long step in advance by the adop- 
 tion of a resolution "that the President be 
 requested to invite from time to time, as 
 fit occasion may arise, negotiations with 
 any government with which the United 
 States has or may have diplomatic relations, 
 to the end that any differences or disputes 
 arising between the two governments, which 
 cannot be adjusted by diplomatic agency, 
 may be referred to arbitration, and be 
 peaceably adjusted by such means." And 
 in 1893, the British House of Commons 
 adopted a resolution approving of this ac- 
 tion of the Congress and expressing "the 
 10 
 
HISTORICAL REVIEW 
 
 hope that Her Majesty's government will 
 lend their ready cooperation to the govern- 
 ment of the United States for the accom- 
 phshment of the object had in view." By 
 this action these two great nations placed 
 themselves on record officially as favoring 
 the most complete submission of unsettled 
 international differences to the peaceful 
 method of arbitration. 
 
 At this period a somewhat different state 
 of affairs existed in the relations of the dif- 
 ferent powers of Continental Europe. The 
 warlike policy of Bismarck, which led to 
 the humiliation of France and the consoh- 
 dation of Germany, had converted the Con- 
 tinent into a nuhtary camp. The nations 
 were vying with each other in buUding up 
 their armies and navies. The enormous 
 expenditure to maintain these estabUsh- 
 ments was becoming an intolerable burden, 
 and the countries confronted each other 
 in a state of armed peace, which might 
 be broken by any untoward event. 
 11 
 
ARBITRATION 
 In the last decade of the nineteenth cen- 
 tury, when this state of affairs was realiz- 
 ing its highest development, Bismarck had 
 retired to private life, and a new Emperor 
 ascended the Russian throne. It is very 
 doubtful whether the Rescript of the Em- 
 peror Nicholas, inviting the assembly of 
 the Hague Conference, would have been 
 issued if the Prince of "blood and iron" 
 had still remained in control of govern- 
 mental affairs in Germany. His retirement 
 was followed by a relaxation of the term of 
 service, and his death in 1898 deprived the 
 military party of its greatest champion. 
 The year following was signalized by the 
 issuance of the invitation of the Autocrat 
 of All the Russias to the governments of 
 the world to send delegates to a Conference 
 to consider some means of relieving the 
 nations of the heavy burden of armament 
 which was oppressing them, and devising 
 a method for preserving peace or of re- 
 straining war. 
 
II 
 
 THE HAGUE PEACE CONFERENCE 
 
 THE suggestion of the Hague Peace 
 Conference was one of the most im- 
 portant events which marked the close of 
 the nineteenth century. It gave promise of 
 the culmination of centuries of study and 
 labor and longing for some permanent ar- 
 rangement whereby the world might be 
 delivered from the strife and carnage with 
 which it had been afflicted in all the past 
 ages. The summons came to the nations at 
 a time when peace prevailed, and when it 
 was possible to bring together the most not- 
 able assembly of statesmen, scholars, and 
 soldiers ever held. 
 
 Europe had previously witnessed many 
 
 international congresses or conferences, but 
 
 all of them had been of a very different 
 
 character. Mr. HoUs, the historian of the 
 
 13 
 
ARBITRATION 
 
 Hague Conference/ in noting this fact, 
 
 writes : — 
 
 "The vital distinction between these 
 gatherings and the Peace Conference at 
 The Hague is that all of the former were 
 held at the end of a period of warfare, and 
 their first important object was to restore 
 peace between actual belligerents; whereas 
 the Peace Conference was the first diplo- 
 matic gathering called to discuss guaran- 
 tees of peace without reference to any par- 
 ticular war — past, present, or prospective." 
 
 The call for the Conference was followed 
 by a hearty approval in the United States 
 and much commendation in Great Britain; 
 but the press of Europe was generally skep- 
 tical as to any practical results to flow from 
 it. Even in Russia, whose ruler had initi- 
 ated the Conference, little sympathy was 
 
 * The Peace Conference at The Hague and its Bearings 
 on International Law and Pohcy, by Frederick W. Holls, 
 a member of the Conference. New York and London : 
 Macmillan & Co., 1900 A general reference is made to 
 this work, and acknowledgment given of the use of its 
 material in much of the discussion of this paper. 
 
 14 
 
THE HAGUE PEACE CONFERENCE 
 
 manifested with it. Since the days of Peter 
 the Great the Russians had been led to 
 believe that the army was the glory and 
 bulwark of the empire, and the public 
 mind was hardly prepared to admit that its 
 maintenance was an unwise expenditure of 
 public funds, or that it was an unnecessary 
 burden upon the country. A feeling ex- 
 isted in France that the Conference might 
 be' made an obstacle to the realization of 
 the hope of its people for the recovery of its 
 lost provinces on the Rhine. Many journals 
 in Germany combated the controlling idea 
 in the call for a diminution or limitation of 
 armaments, and maintained that the mili- 
 tary establishment was not impoverishing 
 the state, as the money was expended and 
 redistributed in the country. Mr. Pierce, 
 the American representative at St. Peters- 
 burg, reported to his government that " the 
 general consensus of opinion among the 
 members of the Diplomatic Corps now 
 present appears to be that the proposition 
 15 
 
ARBITRATION 
 
 is visionary and Utopian, if not partaking 
 of Quixotism. Little of value is expected 
 to result from the Conference, and indeed 
 every diplomatic officer with whom I have 
 talked seems to regard the proposition with 
 that technical skepticism which great mea- 
 sures of reform usually encounter." 
 
 The composition of the Conference was 
 a subject of some complexity. Were the 
 South African republics to be invited, while 
 a war was imminent between them and 
 Great Britain, involving, in part, the suze- 
 rain rights of the latter? Was the Pope 
 of Rome to be recognized in his claim as 
 a temporal prince.'' Other embarrassing 
 questions in this connection might be sug- 
 gested. The Czar avoided these questions 
 by confining the invitations to the countries 
 having diplomatic representatives at St. 
 Petersburg. Unfortunately, this omitted 
 all the governments on the American Hem- 
 isphere, except the United States and Mex- 
 ico. While these were thus deprived of the 
 16 
 
THE HAGUE PEACE CONFERENCE 
 
 privilege of participating in the Conference 
 and assisting in shaping its action, they 
 have taken steps to secure adhesion to the 
 conventions framed by it. At the second 
 congress of the American repubUcs, held 
 in the City of Mexico in 1902, a resolution 
 was unanimously passed approving of the 
 conventions, and soliciting the good offices 
 of the United States and Mexico, partici- 
 pants in the Hague Conference, to secure 
 their admission as signatory powers. 
 
 While it is highly desirable that these 
 nations should be admitted to full partici- 
 pation in the conventions adopted by the 
 Conference, there does not seem to be any 
 disposition to deprive them of the most 
 material benefits resulting from these in- 
 struments. As evidence of this, Venezuela 
 was allowed in 1903 to bring her cause 
 against certain of the European Powers 
 before the Hague Court, and that republic, 
 as well as the other governments concerned, 
 have accepted the award of that Tribunal. 
 17 
 
ARBITRATION 
 
 The Rescript of the Emperor of Russia, 
 which constituted the invitation to the 
 Conference, was issued August 24, 1898. 
 From it the following extracts, indicating 
 its scope, are made : — 
 
 "The maintenance of general peace, and 
 a possible reduction of excessive armaments 
 which weigh upon all nations, present 
 themselves in the existing conditions of 
 the world, as the ideals toward which the 
 endeavors of all governments should be 
 directed. . . . 
 
 " Filled with this idea, His Majesty has 
 been pleased to order me to propose to 
 all the Governments whose representatives 
 are accredited to the Imperial Court, the 
 meeting of a conference which would have 
 to occupy itself with this grave problem. 
 
 " This conference should be, by the help 
 of God, a happy presage for the century 
 which is about to open. It would converge 
 in one powerful focus the efforts of all 
 States which are sincerely seeking to make 
 the great idea of universal peace triumph 
 over the elements of trouble and discord." 
 
 The invitation of the Emperor was 
 18 
 
THE HAGUE PEACE CONFERENCE 
 
 promptly accepted by the United States. 
 The British government likewise gave early 
 notice of its intention to "willingly accept," 
 and after some delay, made necessary by 
 the calling of a meeting of the Cabinet, the 
 Prime Minister wrote: "His Majesty's 
 government gladly accepts the invitation 
 for a conference to discuss the best meth- 
 ods of attaining the two objects specified, 
 namely: the diminution of armaments by 
 \land and sea, and the prevention of armed 
 conflicts by pacific, diplomatic procedure." 
 
 i Notwithstanding the apparent skeptical 
 atiment in Continental Europe, all the 
 vernments invited, with more or less 
 promptness, accepted, and the meeting for 
 the Conference was fixed for May 18, 1899, 
 at The Hague. The reason for the selection 
 of the capital of the Netherlands was stated 
 by the Russian Minister of Foreign Affairs 
 to be that " His Imperial Majesty considers 
 it advisable that the Conference should not 
 sit in the capital of one of the Great Powers 
 19 
 
ARBITRATION 
 
 where so many political interests are cen- 
 tred, which might impede the progress 
 of a work in which all the countries are 
 equally interested." And M. de Staal, the 
 Russian Ambassador, in opening the Con- 
 ference, said: — 
 
 "In the quiet surroundings of The Hague, 
 . . . upon the historic ground of the Neth- 
 erlands, the greatest problems of the polit- 
 ical life of States have been discussed; it 
 is here, as we may say, that the cradle of 
 the science of international law has stood; 
 for centuries the important negotiations 
 between European Powers have taken 
 place ; and it is here that the remarkable 
 treaty was signed which imposed a truce 
 during the bloody contest between States. 
 We find ourselves surrounded by great his- 
 toric traditions." 
 
 The edifice also in which the sessions of 
 the Conference were held had special ap- 
 propriateness for the objects to be attained. 
 It assembled in the Oranje Zaal of the fa- 
 mous House in the Wood (Huis ten Bosch), 
 decorated by some of the best known of the 
 20 
 
THE HAGUE PEACE CONFERENCE 
 
 Dutch artists. In welcoming the members 
 to this hall, the Netherlands Minister of 
 Foreign Affairs said : — 
 
 "Among the greatest of the allegorical 
 figures which you will admire here, there 
 is one relating to the peace of Westphalia, 
 which especially merits your attention. It 
 is the one where you see Peace entering this 
 room for the purpose of closing the Tem- 
 ple of Janus. I hope, gentlemen, that this 
 beautiful allegory wiU be a good omen for 
 your labors, and that, after they have been 
 terminated, you will be able to say that 
 Peace, which here is shown to enter this 
 room, has gone out for the purpose of scat- 
 tering its blessings over aU humanity." 
 
 Under such inspiring local surroundings, 
 the members of the Conference entered 
 upon their labors. They were neither 
 dreamers nor theorists, but men of emi- 
 nently practical experience in government, 
 diplomacy, and war. 
 
 The respective nations sent as their re- 
 presentatives their first diplomatists, most 
 erudite jurists, prominent men of affairs, 
 21 
 
ARBITRATION 
 
 and skillful soldiers. The delegation of the 
 United States comprised Ambassador An- 
 drew D. White, Seth Low, Mayor of New 
 York, Minister Newel, General Crozier of 
 the Army, Captain Mahan of the Navy, 
 and F. W. HoUs of the New York Bar ; 
 and the delegations from the other coun- 
 tries embraced equally able and experienced 
 men. An examination of the proceedings 
 will show that throughout the deliberations 
 of the Conference, they were animated by 
 a sincere desire to accomplish its objects, 
 as far as they deemed them practicable of 
 attainment. 
 
 Its assemblage was in marked contrast 
 with the congresses or conferences of the 
 preceding centuries in the complete ab- 
 sence of display or spirit of rivalry. In the 
 Congresses of Westphalia, Ryswick, and 
 Utrecht, for instance, there was an os- 
 tentatious array of "coaches and six," a 
 numerous retinue, and a constant struggle 
 for precedence in processions and in the 
 
THE HAGUE PEACE CONFERENCE 
 
 council chambers. Here there was a quiet 
 meeting of gentlemen, a recognition of the 
 perfect equality of the smallest independ- 
 ent state, and a seating in the assembly 
 hall in the alphabetical order of the names 
 of the nations they represented. 
 
 Its members, too, were impressed with 
 the importance of the event. In calUng the 
 Conference to order at its first session, 
 the Dutch Minister said: "The day of the 
 meeting of this Conference wiU, beyond 
 doubt, be one of the days which wiU mark 
 the history of the century which is about to 
 close." In his opening address, the Presi- 
 dent, M. de Staal, asserted that it "marks 
 a great date in the history of humanity." 
 Its historian styled it "the first great Par- 
 liament of Man." 
 
 With such elevated ideas, the Conference 
 entered upon its labors. But at the outset 
 it met with discouragement and failure re- 
 specting one of its principal objects. 
 
Ill 
 
 DISARMAMENT 
 
 IN the circular letter of the Russian Min- 
 ister of Foreign Affairs of January 11, 
 1899, following the Rescript convoking 
 the Conference, the subjects to be sub- 
 mitted for consideration were set forth 
 in detail, and the first of these was as fol- 
 lows : — 
 
 " 1. An understanding not to increase for 
 a fixed period the present effective of the 
 armed military and naval forces, and at the 
 same time not to increase the Budgets per- 
 taining thereto; and a preliminary ex- 
 amination of the means by which reduction 
 might even be effected in future in the 
 forces and Budgets above mentioned." 
 
 The evil effects of the vast armaments 
 oppressing the nations of the earth were 
 most strikingly set forth in the Rescript of 
 the Czar. I quote from that paper: — 
 £4 
 
DISARMAMENT 
 
 " In the course of the last twenty years 
 the longings for a general appeasement have 
 become especially pronounced in the con- 
 science of civilized nations. The preserva- 
 tion of peace has been put forward as the 
 object of international policy; in its name 
 great States have concluded between them- 
 selves powerful alliances ; it is the better to 
 guarantee peace that they have developed, 
 in proportions hitherto unprecedented, their 
 mihtary forces, and still continue to increase 
 them without shrinking from any sacrifice. 
 
 " AU these efforts, nevertheless, have not 
 yet been able to bring about the beneficent 
 results of the desired pacification. The 
 financial charges following an upward 
 march strike at the pubKc prosperity at its 
 very source. 
 
 "The intellectual and physical strength 
 of the nations, labor and capital, are for 
 the major part diverted from their natu- 
 ral application, and unproductively con- 
 sumed. Hundreds of milhons are devoted 
 to acquiring terrible engines of destruction, 
 which, though to-day regarded as the last 
 word of science, are destined to-morrow to 
 lose all value in consequence of some fresh 
 discovery in the same field. 
 25 
 
ARBITRATION 
 
 "National culture, economic progress, 
 and the production of wealth are either par- 
 alyzed or checked in their development. 
 Moreover, in proportion as the armaments 
 of each Power increase, so do they less and 
 less fulfill the object which the Govern- 
 ments have set before themselves. 
 
 " The economic crisis, due in great part 
 to the system of armaments d, I'outrance, 
 and the continual danger which lies in this 
 massing of war material, are transforming 
 the armed peace of our days into a crush- 
 ing burden, which the people have more 
 and more difficulty in bearing. It appears 
 evident, then, that if this state of things 
 were prolonged, it would inevitably lead to 
 the very cataclysm which it is desired to 
 avert, and the horrors of which make every 
 thinking man shudder in advance." 
 
 In a conference with the British Am- 
 bassador, following the Rescript, the Rus- 
 sian Minister of Foreign Affairs said that 
 the Emperor, although deeply impressed 
 with the desirability of a general disarma- 
 ment, did not look for an immediate real- 
 ization of the aims he had so much at heart, 
 
 26 
 
DISARMAMENT 
 
 but he desired to initiate an effort, the 
 effects of which could only be gradual. 
 
 When the Conference came to con- 
 sider the question, while there was much 
 sympathy felt with the noble ideas enter- 
 tained in the Czar's Rescript, it was found 
 that the subject was of a very complex 
 character, and that it would be difficult, 
 if not impossible, to reach any agreement 
 which would meet the Czar's desires. The 
 long discussion which ensued is of much 
 interest, but I can indicate something of 
 its spirit by extracts from the speeches of 
 the representatives of Germany and France. 
 General von Schwarzhoff, in the course of 
 a discourse of some length, said : — 
 
 . . . "I can hardly believe that among 
 my honored colleagues there is a single 
 one ready to state that his Sovereign, his 
 Government, is engaged in working for the 
 inevitable ruin, the slow but sure annihi- 
 lation, of his country. I have no mandate 
 to speak for my honored colleagues, but so 
 far as Germany is concerned, I am able 
 27 
 
ARBITRATION 
 
 to completely reassure her friends and to 
 relieve all well-meant anxiety. The Ger- 
 man people is not crushed under the weight 
 of charges and taxes, — it is not hanging 
 on the brink of an abyss; it is not ap- 
 proaching exhaustion and ruin. Quite 
 the contrary ; public and private wealth 
 is increasing, the general weKare and 
 standard of life are being raised from one 
 year to another. So far as compulsory 
 military service is concerned, which is so 
 closely connected with those questions, the 
 German does not regard this as a heavy 
 burden, but as a sacred and patriotic duty 
 to which he owes his country's existence, 
 its prosperity, and its future. 
 
 " I return to the propositions of Colonel 
 Gilinsky [Russian], and to the arguments 
 which have been advanced, and which to 
 my mind are not quite consistent with 
 each other. On the one hand, it is feared 
 that excessive armaments may bring about 
 war; on the other, that the exhaustion of 
 national wealth will make war impossible. 
 As for me, I have too much confidence in 
 the wisdom of sovereigns and nations to 
 share such fears. On the one hand, it is 
 pretended that nothing is asked but things 
 28 
 
DISARMAMENT 
 
 which have existed for a long time in some 
 countries, and which, therefore, present 
 no technical difficulties ; on the other hand, 
 it is said that this is truly a very difficult 
 question, the solution of which would re- 
 quire a supreme effort. I am entirely of 
 the latter opinion. We shall encounter 
 insurmountable obstacles — those which 
 may be called technical in a somewhat 
 wider sense of the term. I believe that the 
 question of effectives cannot be regarded 
 by itself alone, disconnected from a num- 
 ber of other questions to which it is quite 
 subordinated. Such questions, for instance, 
 as the state of public instruction, the length 
 of time of active military service, the num- 
 ber of established regiments, the effectives 
 of each army unit, the number and dura- 
 tion of the drills or military obligations of 
 the reserves, the location of the different 
 army corps, the railway system, the num- 
 ber and situation of fortified places. In a 
 modern army all of these belong together 
 and form the national defense which each 
 people has organized according to its char- 
 acter, its history, and its traditions, taking 
 into account its economical resources, its 
 geographical situation, and duties incum- 
 
ARBITRATION 
 
 bent upon it. I believe that it would be 
 very difficult to substitute for such an emi- 
 nently national task an international conven- 
 tion. It would be impossible to determine 
 the extent and the force of one single por- 
 tion of this complicated mechanism." . . . 
 
 He then proceeded to amplify the rea- 
 sons mentioned, and to maintain that in 
 order to preserve the equilibrium as to 
 armaments, governments must be left free 
 to choose the means best suited to their 
 requirements. 
 
 M. Bourgeois, the head of the French 
 delegation, said : — 
 
 " I listened with great care in the last 
 session to the remarkable speech of Gen- 
 eral von Schwarzhoff . He presented, with 
 the greatest possible force, the technical 
 objections which, according to his views, 
 prevented the Committee from adopting 
 the propositions of Colonel Gilinsky. It 
 did not, however, seem to me that he 
 at the same time recognized the general 
 ideas in pursuance of which we are here 
 united. He showed us that Germany is 
 30 
 
DISARMAMENT 
 
 easily supporting the expense of its mili- 
 tary organization, and he reminded us that 
 notwithstanding this, his country was en- 
 joying a very great measure of commer- 
 cial prosperity. I belong to a country 
 which also supports readily all personal and 
 financial obligations imposed by national 
 defense upon its citizens, and we have not 
 been hindered in the increase of our finan- 
 cial prosperity. But General von Schwarz- 
 hoff will surely recognize with me that if 
 in his country, as well as in mine, the 
 great resources, which are now devoted to 
 mihtary organization, should, at least in 
 part, be put to the service of peaceful 
 and productive activity, the grand total of 
 the prosperity of each country would not 
 cease to increase at an even more rapid 
 rate. . . . 
 
 Gentlemen, the object of civiKzation 
 seems to us to be to abolish more and 
 more the struggle for life between men, 
 and to put in its stead an accord between 
 them for the struggle against the unrelent- 
 ing forces of matter. This is the same 
 thought which, upon the initiation of the 
 Emperor of Russia, it is proposed that we 
 should promote by international agreement. 
 31 
 
ARBITRATION 
 
 If sad necessity obliges us to renounce for 
 the moment an immediate and positive 
 engagement to carry out this idea, ... we 
 shall not have labored in vain if in a for- 
 mula of general terms we at least indicate 
 the goal to be approached, as we all hope 
 and wish, by all civilized nations." 
 
 Notwithstanding the support given to 
 the Russian proposition by France, one 
 of the most martial of the nations, and by 
 various other governments, the objections 
 voiced by the German delegate were too 
 serious to be overcome. The sentiment of 
 the members was that the Conference 
 should avoid forming majority and mi- 
 nority parties, and hence nothing should 
 be put forth as its action which could not 
 command a practically unanimous sup- 
 port. The most that could be accomplished, 
 therefore, was a general expression of sen- 
 timent on the subject in the following 
 declarations, which were unanimously 
 adopted : — 
 
 32 
 
DISARMAMENT 
 
 " The Conference is of opinion that the 
 restriction of miUtary charges, which are 
 at present a heavy burden on the world, 
 is extremely desirable for the increase of 
 the material and moral welfare of man- 
 kind. 
 
 " The Conference expresses the wish that 
 the Governments, taking into consideration 
 the proposals made at the Conference, 
 may examine the possibility of an agree- 
 ment as to the limitation of armed forces 
 by land and sea, and of our budgets." 
 
 While there was much regret felt at the 
 failure to adopt some initiative for the 
 limitation of armaments, it was something 
 gained that a public declaration by such a 
 body was made, that the present military 
 establishments are a heavy burden on the 
 world which it is extremely desirable in 
 the interest of the material and moral wel- 
 fare of mankind should be restricted, and 
 that it is the duty of the governments of 
 the earth to seek to reach an agreement to 
 that end. 
 
 33 
 
ARBITRATION 
 
 It must be recognized that the restriction 
 or reduction of armaments is a most diffi- 
 cult political problem. The system has 
 grown up in recent years of vast armies 
 and formidable navies on the ground of 
 self-defense. Never has the ancient pro- 
 verb. Si vis pacem, para helium, had 
 greater force than to-day. Under its prac- 
 tice, for instance, France, which has had 
 practically unbroken peace fof more than 
 a generation and is to-day on amicable 
 relations with all the world, supports a 
 much greater military establishment than 
 when Napoleon was at war with almost all 
 the nations of Europe. 
 
 In view of the hearty support given by 
 our Government to the measures proposed 
 by the Emperor of Russia, it may be well 
 to consider the situation in the United 
 States, with reference to this question of 
 the restriction of armaments. It is a sub- 
 ject of congratulation that we have been a 
 peaceful, not a military, people. Our na- 
 34 
 
DISARMAMENT 
 
 tional pride has been mainly in our achieve- 
 ments in the peaceful pursuits of mankind. 
 It has been a source of regret to many 
 of us that the fruits of war have made 
 necessary recently a considerable increase 
 in our standing army. Our boast has been 
 that a visitor to our shores from the mil- 
 itary countries of Europe could traverse 
 the continent from ocean to ocean without 
 meeting a soldier. Law and order have 
 been enforced by the civil oflScia|ls. We 
 desire no change in that condition. 
 
 Our growing navy has justly become the 
 pride of the country, but the burden of its 
 construction and maintenance is awakening 
 public attention. At the last session of 
 Congress, a prominent and conservative 
 member of the ruling party sounded a note 
 of warning that our naval expenditures 
 had reached about one hundred million 
 dollars annually, and that with the vessels 
 now under construction, and those author- 
 ized by Congress, these expenditures would 
 35 
 
ARBITRATION 
 
 go on increasing in a rapid ratio.i It has 
 been reported in the public press that the 
 Secretary of the Navy has announced him- 
 self in favor of a navy equal to that of 
 the greatest naval power in the world. I 
 trust he has been incorrectly reported. 
 
 I cannot believe that such is the senti- 
 ment of our people. We neither wish nor 
 need to enter into competition with the 
 military nations either respecting our army 
 or our navy. We can well await the com- 
 pletion of the naval vessels now in process 
 of construction, to determine whether there 
 is any necessity for a further increase. We 
 should maintain ourselves in the attitude 
 we have held in the past as advocates of 
 peace and peaceful methods of settling 
 international controversies, and our Gov- 
 ernment should keep itself in a position to 
 be ready to respond, without embarrass- 
 
 * See Appendix F, for speech of Hon. Theodore E. 
 Burton, Member of Congress from Ohio, on the Naval 
 Appropriation BUI. 
 
DISARMAMENT 
 
 ment, to the call of the Hague Conference 
 in seeking an agreement to restrict arma- 
 ments. We should bear in mind the senti- 
 ments uttered by Washington : — 
 
 " My jSrst wish is to see this plague to 
 mankind [war] banished from the earth, 
 and the sons and daughters of this world 
 employed in more pleasing and innocent 
 amusements than in preparing implements 
 and exercising them for the destruction of 
 mankind." 
 
 It is somewhat foreign to the subject 
 under consideration to examine in detail 
 other results of the Conference not relating 
 to arbitration, and it may suffice to state 
 that it agreed upon and executed two con- 
 ventions for the regulation of war on land 
 and at sea, which embodied the wisest and 
 most humane principles of military con- 
 duct resulting from a study and discus- 
 sion of these matters during the past half 
 century, and which had their first codifica- 
 tion in the " Instructions for the Guidance 
 37 
 
ARBITRATION 
 
 of the Armies of the United States," issued 
 at the beginning of the Civil War. Had 
 the Conference accompHshed nothing more 
 than these two conventions and the ac- 
 companying declarations, it would have 
 been entitled to the claim of being one of 
 the most useful international assemblies in 
 history. 
 
IV 
 
 THE ARBITRATION CONVENTION 
 
 WE come now to consider the most 
 important and the crowning work 
 of the Hague Conference — the Conven- 
 tion for the Peaceful Adjustment of Inter- 
 national Differences. It was reached not 
 without much diflSculty and discussion, and 
 it was necessary, in order to secure una- 
 nimity of action, to compromise many con- 
 flicting views, and for the friends of arbi- 
 tration to yield some points regarded by 
 them as of much importance. 
 
 The Preamble to the convention, in which 
 all the governments represented in the 
 Conference joined, contains a very im- 
 portant declaration of principles, which 
 shows that in sentiment, at least, the nations 
 of the earth have reached a high standard 
 39 
 
ARBITRATION 
 
 of international justice and humanity. It is 
 as follows : — 
 
 "Animated by a strong desire to con- 
 cert for the maintenance of the general 
 peace; 
 
 " Resolved to second by their best efiForts 
 the friendly settlement of international dis- 
 putes ; 
 
 " Recognizing the solidarity which unites 
 the members of the society of civilized na- 
 tions; 
 
 "Desirous of extending the empire of 
 law, and of strengthening the appreciation 
 of international justice; 
 
 " Convinced that the permanent institu- 
 tion of a Court of Arbitration, accessible 
 to all, in the midst of the independent 
 Powers, will contribute effectively to this 
 result; 
 
 "Having regard to the advantages at- 
 tending the general and regular organiza- 
 tion of arbitral procedure; 
 
 " Sharing the opinion of the august 
 Initiator of the International Peace Con- 
 ference that it is expedient to solemnly 
 establish by an International Agreement 
 the principles of equity and right, on which 
 40 
 
THE ARBITRATION CONVENTION 
 
 repose the security of States and the welfare 
 of peoples;" etc. 
 
 The convention or treaty is divided into 
 four titles, or general provisions. The first 
 consists of one brief paragraph, and is 
 merely declaratory, but it is important 
 because it solemnly commits by distinct 
 agreement the powers joining in the con- 
 vention "to use their best efforts to insure 
 the pacific settlement of international dif- 
 ferences." 
 
 The two following titles contain pro- 
 visions having in view the carrying into 
 effect of the foregoing declaratory agree- 
 ment by means, first, of a resort to Good 
 OflSces and Mediation, and, second, of 
 International Commissions of Inquiry. 
 Thirteen articles of the convention relate 
 to these two measures. That they are ef- 
 fective for the purpose for which they were 
 framed is attested by the recent resort to a 
 Commission of Inquiry by Great Britain 
 41 
 
ARBITRATION 
 
 and Russia, to determine questions of fact 
 about which there arose such a difference 
 as threatened the amicable relations of the 
 two nations. 
 
 But, as the topic under consideration 
 has reference especially to the Permanent 
 Court of Arbitration, I pass to the fourth 
 title, — which in forty-seven articles cre- 
 ates the Court, defines its jurisdiction and 
 the principles which are to guide it, spe- 
 cifies the manner in which its members are 
 chosen, the rules governing its procedure, 
 its awards, and other necessary details. 
 The full text of the convention will be 
 found in Appendix A, to which the reader 
 is referred for the detailed provisions, and 
 I address myself to some of their salient 
 features, or those which have given rise to 
 discussion or criticism. 
 
 The first distinctive feature of the Arbi- 
 tration Convention is that it has no com- 
 pulsory stipulation. It declares specifically 
 in favor of "a pacific settlement of inter- 
 42 
 
THE ARBITRATION CONVENTION 
 
 national controversies," and provides meth- 
 ods for their settlement by means of (1) 
 mediation, (2) good offices, (3) commis- 
 sions of inquiry, and (4) a court of arbitra- 
 tion; but no nation is pledged to resort to 
 any of these methods, and, especially, is 
 none compelled to submit its cause to the 
 Hague Permanent Court. This feature is 
 regarded by the most earnest advocates 
 of arbitration as a serious defect of the 
 treaty, but it was early made apparent in 
 the Conference that there could be no 
 agreement for compulsory stipulations, and 
 it was even found difficult to bring about a 
 concurrence on the convention as it stands. 
 The French delegates, who throughout 
 the Conference were the zealous friends of 
 arbitration, sought to secure the adoption 
 of a provision investing the Bureau created 
 at The Hague to act as the chancellery or 
 clerk's office of the Permanent Court, with 
 an international mandate, in case there 
 should develop between two or more of 
 43 
 
ARBITRATION 
 
 the signatory states one of the differences 
 recognized as being a proper subject for 
 arbitration, to remind the disputing par- 
 ties of the provisions of the convention for 
 arbitration. Even this apparently harmless 
 provision met with the opposition of one of 
 the Great Powers, and had to be omitted. 
 
 The sentiment, however, in favor of 
 compulsory arbitration was so strong that 
 an article was inserted in the convention 
 reserving the right to any of the signatory 
 powers to conclude general or special 
 agreements, extending the obligation to 
 submit controversies to arbitration in all 
 cases which they consider suitable for such 
 submission. It is a happy augury for the 
 eventual recognition of the duty to submit 
 all international disputes to arbitration, 
 to note that treaties of the character in- 
 dicated have been already entered into 
 between a number of the leading powers 
 of Europe. 
 
 France has the honor of taking the 
 44 
 
THE AKBITRATION CONVENTION 
 
 initiative in this new and advanced move- 
 ment. In October of last year its govern- 
 ment entered into a treaty with that of 
 Great Britain, stipulating for a period of 
 five years to submit a certain specified 
 <;lass of cases to the Hague Tribunal; ^ 
 similar conventions have been made by 
 each of them separately with other Euro- 
 pean powers ; and others of these powers 
 have united in identical conventions. It 
 is gratifying to know that as a step in 
 the same direction, the Secretary of State, 
 Mr. Hay, has consulted the Senate, as the 
 coordinate branch of the treaty-making 
 power, on the subject, and it is confidently 
 expected that at the next session of the 
 Senate the President of the United States 
 will submit to that body for approval arbi- 
 tration treaties with a number of nations, 
 with provisions similar to those entered into 
 between the European governments. 
 
 ^ For fall test of tiie Anglo-French treaty, see Appen- 
 dix B. 
 
 45 
 
ARBITRATION 
 
 The Hague convention recognizes two 
 
 classes of controversies as suitable for 
 
 submission to the Hague Court, to wit: 
 
 questions of a judicial character and those 
 
 regarding the interpretation or application 
 
 of international treaties. The article of 
 
 the arbitration treaty between France and 
 
 Great Britain, and, with two exceptions, 
 
 the other European powers just alluded 
 
 to, is as follows : — 
 
 " Differences of a judicial order, or rela- 
 tive to the interpretation of existing treaties 
 between the two Contracting Parties, which 
 may arise, and which it may not have been 
 possible to settle by diplomacy, shall be 
 submitted to the Permanent Court of 
 Arbitration established by the Convention 
 of July 29, 1899, at The Hague, on condi- 
 tion, however, that neither the vital inter- 
 ests, nor the independence or honour of the 
 two Contracting States, nor the interest of 
 any State other than the two Contracting 
 States, are involved." 
 
 While this stipulation is a step in advance 
 of the Hague convention in that it makes 
 46 
 
THE ARBITRATION CONVENTION 
 
 arbitration compulsory, it is a qualifica- 
 tion or limitation of that treaty in that it 
 excepts from the stipulation such of the 
 two classes of cases as, in the judgment of 
 the contracting parties, involve the vital 
 interests, the independence, or the honor 
 of either state. This reservation raises the 
 important, broad, and difficult question of 
 what questions are proper for submission 
 to international arbitration. Questions in- 
 volving the independence of a sovereign 
 state may not be difficult of determination, 
 but the "vital interests" of a state, or its 
 "national honor," may become very vague 
 or elastic, and dependent in great measure 
 upon the temperament or condition of the 
 authority having the right to determine or 
 allege them. 
 
 In the interest of the peace of the nations, 
 it is of the utmost importance that the ex- 
 ceptions to arbitral submission be as few 
 and restricted as possible. It is the aim of 
 the most devoted friends of the cause that 
 47 
 
ARBITRATION 
 
 the nations may ultimately reach the po- 
 sition where they will agree to submit all 
 international controversies, without excep- 
 tion, to a peaceful method of adjustment. 
 There have been some recent treaties and 
 notable declarations emanating from im- 
 portant bodies to that effect. The first 
 conference of the American States, embra- 
 cing all the independent countries of the 
 hemisphere, which assembled in Washing- 
 ton in 1890, framed and recommended the 
 adoption of an arbitration treaty, which 
 contained the stipulation that "the sole 
 question which any nation is at liberty to 
 refuse to arbitrate is a question which 
 may imperil its independence." In closing 
 the deliberations of that conference, its pre- 
 sident, James G. Blaine, who by some 
 has been charged with aggressive states- 
 manship, referring to this arbitration 
 treaty, said: "We hold up this new Magna 
 Charta, which abolishes war and substi- 
 tutes arbitration between the American 
 48 
 
THE ARBITRATION CONVENTION 
 
 republics, as the first and great fruit of the 
 International American Conference." 
 
 The Washington Conference on In- 
 ternational Arbitration, held in January, 
 1904, was a distinguished and representa- 
 tive body of men in public life, in the 
 professions, the industries, and commerce. 
 Its committee on resolutions was composed 
 of two of the American members of the 
 Hague Court, five ex-ambassadors and 
 ministers, three of the first lawyers in the 
 country, and other able men. The subject 
 of the reservations or exceptions proper to 
 be made in arbitration treaties was fully 
 considered, and they reported through 
 their chairman. Judge George Gray, that 
 it was the duty of the United States to enter 
 into treaties with Great Britain and other 
 powers for the submission to the Hague 
 Permanent Court or some special tribunal 
 of "all differences which they may fail to 
 adjust by diplomatic negotiation." 
 
 That this position is not chimerical is 
 49' 
 
ARBITRATION 
 
 shown by the fact that two of the leading 
 nations of South America, Chile and Ar- 
 gentina, have united in a treaty binding 
 themselves to submit all controversies be- 
 tween them, not susceptible of diplomatic 
 settlement, to arbitration, except questions 
 involving their independence. Following 
 the movement of Great Britain and other 
 European countries for compulsory condi- 
 tional arbitration, as already noticed, the 
 kingdoms of the Netherlands and Den- 
 mark, in February, 1904, entered into a 
 treaty pledging themselves "to submit to 
 the Permanent Court of Arbitration [at 
 The Hague] all mutual differences and 
 disputes that cannot be solved by means of 
 a diplomatic channel." ^ 
 
 The arbitration treaties now in process 
 of negotiation by Secretary Hay with 
 European powers are understood to be 
 similar in their terms to the treaty between 
 
 * For full text of the Netherlands-Denmark treaty, see 
 Appendix C. 
 
 50 
 
THE ARBITRATION CONVENTION 
 
 Great Britain and France, containing the 
 exceptions cited. While they do not reach 
 the high ideal fixed by the Washington 
 Conference and attained by Chile and Ar- 
 gentina, and the Netherlands and Den- 
 mark, such treaties are an important step 
 in advance of the Hague arbitration con- 
 vention and in the direction of the ideal of 
 the advocates of universal peace. If, as 
 seems to be the case, the Great Powers of 
 Europe cannot be brought to accept the 
 form of convention entered into between 
 the Netherlands and Denmark, Secretary 
 Hay should be commended and supported 
 in his action in joining the Great Powers 
 in the conditional compulsory treaties to 
 which they have given their assent. These 
 treaties have a duration of only five years, 
 and we may cherish the hope that at the 
 date of their expiration the public sentiment 
 of the world may be such that they may be 
 renewed with a broader scope of arbitration. 
 The national honor is a matter which 
 51 
 
ARBITRATION 
 
 our first impulse of patriotism would decide 
 was beyond the province of arbitration, 
 but a more dispassionate consideration 
 will lead us to see that it is not always so. 
 In the heat of the dispute over what are 
 known as the "Alabama Claims," involving 
 important questions of international law 
 and high state policy, when the American 
 minister in London proposed arbitration. 
 Lord Russell replied : — 
 
 "It appears to her Majesty's government 
 that neither of these questions could be 
 put to a foreign government with any re- 
 gard to the dignity and character of the 
 British Crown and the British nation. 
 Her Majesty's government are the sole 
 guardians of their own honour . . . and 
 must therefore decline either to make 
 reparation and compensation ... or to 
 refer the question to any foreign state." 
 
 When, however, the passions of the hour 
 
 had passed, the British government saw 
 
 how unwise it was to allow an attitude so 
 
 sensitive and unsubstantial as the so-styled 
 
 52 
 
THE ARBITRATION CONVENTION 
 
 "national honor" to obstruct a peaceful 
 settlement of its controversies with a kin- 
 dred nation, and the Treaty of Washington 
 of 1871 brought forth the Geneva Arbi- 
 tration, so beneficent in its results for both 
 nations and the world. A century and less 
 ago, public social sentiment in England 
 and America demanded that a personal 
 affront, supposed or real, should be atoned 
 for by the blood of the aggressor, but the 
 real gentleman of English and American 
 society of to-day leaves the vindication of 
 his honor to the courts of justice or public 
 opinion. There is no reason why the same 
 course should not be pursued by nations. 
 Mr. James Bryce, in discussing the article 
 of the Anglo-French treaty cited by me, 
 says : — 
 
 "The exception of 'honour' made in the 
 treaty just quoted is of very doubtful merit, 
 because questions of so-called national 
 honour are often just the questions which 
 most need to be referred to arbitration, 
 53 
 
ARBITRATION 
 
 inasmuch as they are those which a nation 
 finds it hardest to recede from when it has 
 once taken up a position, so that the friendly 
 intervention of a third party is especially 
 valuable. . . . 
 
 "The value of arbitration, or of con- 
 ciliation by a third party, lies not merely 
 in its providing a means of determining a 
 difficult issue of law or fact, but in its 
 making it easy for the contracting parties 
 to abate their respective pretensions with- 
 out any loss of dignity." 
 
 In the treaty of compulsory arbitration 
 between Mexico and Spain of 1902, "na- 
 tional independence and honor" were 
 excepted; but an article of the treaty set 
 forth what are not to be held as embracing 
 these exceptions.^ 
 
 It is asserted that many political ques- 
 tions are not suitable subjects for submis- 
 sion to arbitration. The questions which 
 brought on the Russo-Japanese war have 
 been cited among those which are not 
 arbitrable, and likewise the Monroe Doc- 
 
 * For the Mexican-Spanish treaty, see Appendix D. 
 54 
 
THE ARBITRATION CONVENTION 
 
 trine. None of the leading nations are pre- 
 pared to-day to enter into a treaty of un- 
 conditional arbitration, but the oftener they 
 submit their differences to arbitration, the 
 nearer they approach that goal. Great 
 Britain and the United States have since 
 the War of 1812 submitted all their many 
 matters of dispute to a peaceful method 
 of adjustment. An examination of their 
 numerous arbitration treaties, embracing 
 a great variety of subjects, will show that 
 no question can in the future arise between 
 them which will more seriously involve 
 their territory, the honor of the countries, 
 their vital interests, or their independence, 
 than those which have already been sub- 
 mitted to arbitration. 
 
 Hence, so far as Great Britain is con- 
 cerned, it may be safely asserted that the 
 Washington Conference committed no error 
 in recommending that the United States 
 enter with that power into a treaty of 
 unconditional arbitration. If, after nearly 
 55 
 
ARBITRATION 
 
 a century of peaceful settlement of their 
 disputes, these two countries can make 
 such a convention, they should hardly be 
 styled dreamers or enthusiasts who look 
 forward to the time when all nations of the 
 earth, through peaceful intercourse and 
 forbearance, will find a better method of 
 adjusting their differences than by the 
 arbitrament of war. 
 
 In the Hague Conference the question 
 arose as to what stipulation should be 
 inserted in the treaty guaranteeing the 
 enforcement of the award of a court of 
 arbitration. In this instance, as when the 
 subject of compulsory arbitration was 
 under discussion, it was found that if con- 
 straint was to be applied to a recalcitrant 
 power, it would have to be through some 
 kind of international military force, and 
 the delegates were in no frame of mind to 
 consider such an alternative. Besides, it 
 was cited that during the many arbitration 
 cases of the past century, a sense of equity 
 56 
 
THE ARBITRATION CONVENTION 
 
 and the force of public opinion had been 
 suflScient to secure acceptance of the award; 
 and the Conference regarded it as suffi- 
 ciently effective to insert an article declar- 
 ing that "the agreement of arbitration 
 implies the obligation to submit in good 
 faith to the decision of the arbitral tribu- 
 nal." 
 
THE HAGUE COURT 
 
 ONE of the most important questions 
 discussed by the Peace Conference, 
 in connection with the arbitration con- 
 vention, was whether its provisions should 
 be carried out through provisional or special 
 tribunals, or whether a permanent court 
 should be created for that purpose. 
 
 The Interparhamentary Union, a vol- 
 untary organization of members of the 
 national legislative bodies of the nations, 
 having for its object the promotion of 
 international arbitration, at its meeting in 
 Holland in 1894, adopted a declaration in 
 favor of a permanent court of arbitration. 
 In 1895, at the first meeting of the Mohonk 
 Conference on international arbitration, a 
 body which has exercised a most salutary 
 influence upon public sentiment, Dr. Ed- 
 58 
 
THE HAGUE COURT 
 
 ward Everett Hale introduced a resolution 
 in favor of the establishment of a perma- 
 nent international court of arbitration. 
 The resolution was referred to a committee 
 of prominent lawyers to study and report 
 upon the subject; and at the next annual 
 meeting of the Conference, the resolution 
 was unanimously adopted.^ 
 
 When the Hague Peace Conference 
 was called, the United States was from 
 the beginning in favor of the creation of 
 a permanent court. In 1896, in addition 
 to the declaration of the Mohonk Confer- 
 ence, the New York State Bar Association 
 
 ^ The Conference in its public declaration said: " We 
 earnestly call upon statesmen, ministers of every faith, 
 the newspapers and periodical press, colleges and schools, 
 chambers of commerce and boards of trade, organizations 
 of workingmen, and upon all good men and women, to 
 exert their influence in favor of this movement, both in 
 making known to the President of the United States their 
 desire for a permanent tribunal, and in helping to create 
 a larger public sentiment against war, which shall be an 
 efficient and constant support of the new judicial system 
 thus to be founded." 
 
 59 
 
ARBITRATION 
 
 laid before the President a memorial set- 
 ting forth a permanent tribunal as the 
 essential feature of any general scheme 
 of arbitration, and the delegates of the 
 United States to the Conference had been 
 instructed to make this a cardinal point in 
 their propositions. But the honor fell to 
 the chairman of the British delegation, 
 Lord Pauncefote, to become its special 
 champion in the deliberations. At one of 
 the early sessions of the Conference he 
 introduced the subject with the following 
 remarks : — 
 
 " Mb. Pbesident: Permit me to inquire 
 whether, before entering in a more detailed 
 manner upon our duties, it would not be 
 useful and opportune to sound the Com- 
 mittee on the subject of a question which 
 in my opinion is the most important of all, 
 namely: the establishment of a permanent 
 international tribunal of arbitration, such 
 as you have mentioned in your address. 
 Many proposed codes of arbitration and 
 rules of procedure have been made, but 
 60 
 
THE HAGUE COURT 
 
 up to the present time the procedure has 
 been regulated by the arbitrators, or by 
 general or special treaties. Now it seems 
 to me that new codes and regulations of 
 arbitration, whatever may be their merit, 
 do not greatly advance the grand cause 
 for which we are gathered here. If it is 
 desired to take a step in advance, I am of 
 the opinion that it is absolutely necessary 
 to organize a permanent international 
 tribunal, which can be called together at 
 the request of contending nations. This 
 principle once established, I believe we 
 shall not have any difficulty in agreeing 
 upon details. The necessity for such a 
 tribunal and the advantages which it con- 
 fers, as well as the encouragement and in 
 fact the prestige which it will give to the 
 cause of arbitration, have been demon- 
 strated with as much eloquence as force 
 and clearness by our distinguished col- 
 league, M. Descamps. ... I have no 
 more to say upon this subject, but I would 
 be very grateful to you, Mr. President, 
 if before proceeding any further you would 
 consent to elicit the ideas and sentiments 
 of the Committee upon the proposition 
 which I have the honor of submitting to 
 61 
 
ARBITRATION 
 
 you, touching the establishment of a per- 
 manent international tribunal of arbitra- 
 tion." 
 
 This brief speech, it is recorded, struck 
 the keynote of the subsequent discussion. 
 It was antagonized by Germany, but the 
 sentiment was so strongly in its favor that 
 the German delegates were induced to 
 withdraw their objection, and provision 
 was made in the convention for a Perma- 
 nent International Court. This action was 
 a source of much gratification to the 
 advocates of international arbitration, who 
 for centuries had looked forward with 
 hope to the establishment by the nations 
 of the earth of some form of congress or 
 court, which should have a continuous 
 existence and be clothed with functions for 
 the preservation of peace. 
 
 The provisions of the convention are 
 
 that each of the signatory powers shall 
 
 appoint for a term of six years as members 
 
 of the Permanent Court not more than 
 
 62 
 
THE HAGUE COURT 
 
 four persons, "of recognized competence 
 in questions of international law, enjoying 
 the highest moral reputation." These 
 persons constitute a Permanent Court of 
 Arbitration, accessible at all times and act- 
 ing in accordance with the prescribed 
 rules of procedure. 
 
 The members of the Court thus con- 
 stituted do not sit, however, as a collective 
 body, but when two or more nations have 
 a case to submit to arbitration, they select 
 by mutual agreement one, three, or five 
 members, as may be stipulated, from the 
 persons constituting the Court, who will 
 act as the tribunal to try the case. So that 
 it may happen that some members of the 
 Court may never be called upon to dis- 
 charge the functions of a judge. 
 
 It was thought wise not to restrict the 
 liberty of action of the arbitrating nations, 
 and they have been left free to select the 
 judges from the permanent panel, so to 
 speak, of the Court. Likewise, though The 
 63 
 
ARBITRATION 
 
 Hague is designated as the place where 
 the Court shall hold its sessions, another 
 place may be designated by agreement of 
 parties litigant. Also, while detailed rules 
 of procedure are provided in the conven- 
 tion, these may be varied by special agree- 
 ment of the parties. 
 
 The convention contains a provision 
 (Article 52) that the award of the Tribunal 
 shall be accompanied by a statement of the 
 reasons upon which it is based, but this 
 article was not adopted without serious 
 objection in the Conference. It was recog- 
 nized that much advantage would be de- 
 rived from the opinions of judges of such 
 high authority in the creation of a body 
 of international jurisprudence, but it was 
 urged that the opinions might contain 
 criticism of the litigating parties, or other 
 powers, harmful and unnecessary. This 
 surmise became a reality when, during 
 the present year, the president of the Tri- 
 bunal in the Venezuela arbitration, who 
 64 
 
THE HAGUE COURT 
 
 was a Russian, made some utterances 
 whicli were seriously resented by the Jap- 
 anese. 
 
 The question of the finahty of the award 
 was much debated in the Conference. It 
 was contended that a rehearing of a case 
 once decided would diminish the moral 
 authority of the Tribunal and the weight 
 otherwise given to its first decision. The 
 American proposition was that a hearing 
 should be granted "upon presentation of 
 evidence that the judgment contained a 
 substantial error of fact or of law." The 
 practice in the United States sustained 
 such a provision, and its government had 
 had experience which showed that some 
 provision for rehearing was desirable. For 
 instance, in the Mexican claims commis- 
 sion, the umpire, Sir Edward Thornton, 
 had decided that when his decision was 
 once rendered, his relation to the case 
 was terminated, and that even if fraud 
 was shown to have been practiced upon 
 65 
 
ARBITRATION 
 
 the commission, the award could not be re- 
 opened, but relief would have to be sought 
 by a direct appeal to the government con- 
 cerned. The Conference finally agreed 
 upon a provision that a rehearing should 
 be had "only on the discovery of new facts 
 of such a character as to exercise a decisive 
 influence upon the judgment, and which 
 at the time of the judgment were unknown 
 to the Tribunal itself and to the parties 
 demanding the rehearing." 
 
 The convention contains a stipulation 
 that the proceedings in a case should 
 embrace oral argument of counsel before 
 the Tribunal. The prevaihng practice in 
 arbitration during the last century was to 
 accompany the documentary evidence in 
 the case with a printed or written argument 
 only. The Geneva arbitration of 1872 gave 
 the right to the tribunal to call for oral 
 argument on any specific question, and a 
 brief oral discussion was accordingly had. 
 In the Fur Seal arbitration at Paris in 1893, 
 66 
 
THE HAGUE COURT 
 
 the treaty stipulated for general oral argu- 
 ment, and several weeks were occupied by 
 counsel; and a similar practice was ob- 
 served in the Venezuela boundary arbitra- 
 tion at Paris in 1899. The Hague conven- 
 tion recognizes this as the proper practice. 
 Its effect is to considerably prolong the 
 sessions of the Tribunal, but it affords the 
 litigating parties a more satisfactory eluci- 
 dation of the questions at issue. 
 
 Having reviewed the more important 
 provisions of the Hague arbitration con- 
 vention, I pass to a consideration of the 
 practical working of the Permanent Court 
 organized under it. 
 
 When the Hague Conference adjourned, 
 there was a widespread belief that it had 
 accomplished little towards the prevention 
 of war. It had failed to agree upon either 
 the restriction or the diminution of the vast 
 armaments which were oppressing the 
 nations and threatening the peace of the 
 world. The arbitration convention, which 
 67 
 
ARBITRATION 
 
 left it purely optional with the nations to 
 observe its provisions, did not impress the 
 general public as of much practical value; 
 and there was a skeptical feeling that no 
 powerful nation would ever invoke the 
 services of the Permanent Court to save 
 it from an armed conflict with another 
 state. 
 
 However, when the convention was sub- 
 mitted to the governments to ratify the 
 action of the delegates, no one of them 
 cared to reject it. The friends of arbitration 
 were reassured when the intelligence flashed 
 across the Atlantic that the Senate of the 
 United States had unanimously approved 
 it, and that the President had promptly 
 proclaimed it to the world. The other 
 signatory nations took similar action. The 
 convention thus becoming a completed 
 instrument, the respective governments 
 appointed from their most distinguished 
 public men and able jurists the members of 
 the Permanent Court. The world's query 
 68 
 
THE HAGUE COURT 
 
 then was — What nations will now come 
 forward to submit to the Court a contro- 
 versy insolvable by diplomacy ? 
 
 It is a matter of pride for this Continent 
 that the two greatest republics of America 
 should be the first to invoke the services 
 of the Hague Court. The Supreme Court 
 of the United States, which is the nearest 
 approach to that Tribunal, had to wait a 
 longer time after its creation before it 
 heard its first case. The Pious Fund claim 
 was one which had vexed the govern- 
 ments of the United States and Mexico 
 for nearly haK a century, and had baffled 
 the efforts of well-disposed diplomacy. 
 Having faith in the efficacy of the Court, 
 and obedient to the spirit of the arbitration 
 convention of which they were signatory 
 parties, they entered into an agreement to 
 submit the claim to that Court. The case 
 was heard under satisfactory conditions, 
 a decision rendered, which has been ac- 
 cepted by both parties, and that source of 
 69 
 
ARBITRATION 
 
 difference between the neighboring repub- 
 lics has been forever removed. 
 
 But, said the skeptics, the case of Mexico 
 was one involving merely a money claim; 
 the test will come when nations heated 
 to the point of war are called upon to 
 yield their pretensions to the decision of 
 the Hague Court. Such a case was not 
 long delayed. Three of the most powerful 
 nations of Europe were soon engaged in 
 flagrant hostihties against a weak American 
 state. Venezuela, though not a party to 
 the Hague convention, appealed to it for 
 the determination of the question at issue. 
 The allied powers, Great Britain, Germany, 
 and Italy, in disregard of the Hague 
 arbitration convention, to which they were 
 parties, turned to the President of the 
 United States and asked him to become 
 the sole arbiter of the controversy. It was 
 a high mark of confidence in the American 
 chief magistrate, and very flattering to 
 him personally, but his sense of duty to the 
 70 
 
THE HAGUE COURT 
 
 world was greater than his pride of person, 
 and he pointed to the Hague Court and 
 declined the offer. In that act President 
 Roosevelt rendered a greater service to the 
 cause of peace and international arbitra- 
 tion than any other man of his generation. 
 The motive which animated his conduct is 
 well stated in his annual message of 1903 
 to the Congress of the United States : — 
 
 " It seemed to me to offer an admirable 
 opportunity to advance the practice of the 
 peaceful settlement oi disputes between 
 nations, and to secure for the Hague Tribu- 
 nal a memorable increase of its practical im- 
 portance. The nations interested in the con- 
 troversy were so numerous, and, in many 
 instances, so powerful, as to make it evident 
 that beneficent results would follow from 
 their appearance at the same time before 
 the bar of that august tribunal of peace." 
 
 The action of President Roosevelt led 
 to the appearance at The Hague of a dis- 
 tinguished array of nations. Russia and 
 Austria were represented in the Tribu- 
 71 
 
ARBITRATION 
 
 nal,^ while Venezuela, Great Britain, Ger- 
 many, Italy, France, Spain, Belgium, the 
 Netherlands, Sweden and Norway, the 
 United States, and Mexico appeared as in- 
 terested parties. 
 
 The decision of the Tribunal, conceding 
 preferential treatment to the allied powers 
 who sought to enforce by war their claims 
 against Venezuela, has been severely criti- 
 cised, but the general results are recognized 
 as of great value. Mr. MacVeagh, of the 
 American counsel, while questioning the 
 soundness of the decision, has said : — 
 
 " There can, however, be no manner of 
 doubt that the arbitrators acted according 
 to the best light they had, nor can there be 
 any doubt that the presence for the first 
 time of so many great nations at the bar 
 of the Tribunal outweighs in usefulness 
 any adverse result of the decision itseK." 
 
 ^ The terms " Court " and " Tribunal " seem to be 
 used interchangeably in the convention, but " Tribunal " 
 is usually applied to the body selected from the panel of 
 the Court to hear and determine a particular case. 
 
 72 
 
THE HAGUE COURT 
 
 It appears that the Tribunal based its 
 decision upon the finding that Venezuela 
 promised the allies that if they would 
 cease their hostile operations, they should 
 have a priority of claim upon the customs 
 receipts, and it did not pass upon the 
 ethical question urged by the interested 
 peaceful powers. Hon. J. M. Dickinson, 
 whose views are of special value because 
 of his experience as senior counsel at 
 London before the Alaskan Boundary 
 Commission and his active practice in the 
 highest courts of the United States, in 
 discussing this matter has said : — 
 
 "If the decision were wrong, this fur- 
 nishes no just ground for saying that the 
 future usefulness of the Court is impaired. 
 No one ever expected infallibility from any 
 human court, and we do not think of abol- 
 ishing our courts because they err, as all of 
 them at times do. 
 
 " Under the corrective influence of inter- 
 national jurists, unsound doctrine will be 
 repudiated. This is more easy of accom- 
 73 
 
ARBITRATION 
 
 plishment by the Hague Court than by 
 any other. The same members are rarely 
 chosen to sit again. There will be a con- 
 stant change in judges. As new cases arise, 
 not having any pride of opinion in the 
 decision of others, they will the more 
 promptly expound as the law that which 
 the enlightenment of the time shall de- 
 mand, for international law wiU always 
 develop and stand as the exponent of such 
 international justice and morality as the 
 consensus of nations shall approve." ^ 
 
 The importance of the Venezuela case 
 at The Hague can scarcely be exaggerated. 
 The thirteen nations there represented, 
 embracing a population of more than four 
 hundred and fifty millions, the most en- 
 lightened as well as the most powerful of 
 the world in military establishment, are a 
 striking object lesson of the wisdom and 
 eflBcacy of arbitration. President Roose- 
 velt has anticipated those results in such 
 
 ■" International Arbitration, an Address delivered at 
 Vanderbilt University, by Hon. J. M. Dickinson, 1904, 
 page 23. 
 
 74 
 
THE HAGUE COURT 
 
 happy language that I quote again from 
 his message to Congress : — 
 
 "Such an imposing concourse of nations 
 presenting their arguments to and invoking 
 the decision of that high court of inter- 
 national justice and international peace 
 can hardly fail to secure a like submission 
 of many future controversies. The nations 
 appearing there will find it far easier to 
 appear there a second time, while no na- 
 tion can imagine its just pride will be 
 lessened by following the example now 
 presented. This triumph of the principle 
 of international arbitration is a subject 
 of warm congratulation, and offers a happy 
 augury for the peace of the world." 
 
 The President's anticipation is being 
 realized, as three of the Powers represented 
 in the Venezuelan arbitration — Great 
 Britain, France, and Germany — have 
 united in an agreement with Japan, a 
 signatory party to the Hague convention, 
 to submit to the Permanent Arbitration 
 Court a controversy between them which 
 has not yielded to diplomatic negotiation; 
 75 
 
ARBITRATION 
 
 and the case is now in process of submis- 
 sion. As already noted. Great Britain 
 and Russia have just invoked another 
 provision of that convention, in their mu- 
 tual desire to avoid threatened hostilities. 
 Other nations will, with greater frequency, 
 carry their diflFerences to The Hague; and 
 the Temple, for the construction of which 
 the generous American citizen, Mr. Car- 
 negie, has provided the means, bids fair 
 to be thronged with suitors appeaUng to 
 reason and international justice for the 
 protection of their national rights. 
 
 The only dark cloud which obscures the 
 otherwise brilliant prospect is the gigantic 
 and terrible conflict now going on between 
 Russia and Japan, and the sad fact that 
 although they were both signatories of the 
 Hague convention, that agreement was not 
 efficacious for the preservation of peace. 
 The convention contains an article which 
 makes it the duty of the signatory powers, 
 "in case a serious dispute threatens to 
 76 
 
THE HAGUE COURT 
 
 break out between two or more of them, 
 to remind these latter that the Permanent 
 Court of Arbitration is open to them," and 
 that "the advice given to them, in the 
 highest interests of peace, to have recourse 
 to the Permanent Court, can only be con- 
 sidered as an exercise of good offices," and 
 not as an offensive act. Although France 
 and England, two of the most influential 
 powers in the creation of the Hague 
 Court, were connected with the belligerents 
 by more than friendly ties, yet neither of 
 them, nor any other of the powers so deeply 
 interested in the peace of the Orient, dis- 
 charged their duty under Article 27 of the 
 convention and reminded them that the 
 Hague Court was open for the settlement 
 of their controversy. 
 
 This is a discouraging fact, but only 
 emphasizes the position to which I have 
 already referred, that there are some 
 questions of policy and high politics which, 
 in the present temper of the nations, can- 
 77 
 
ARBITRATION 
 
 not be adjusted by peaceful methods. This 
 terrible conflict, however, by its very hor- 
 rors and evil consequences for both belli- 
 gerents, makes the world stand aghast and 
 the great heart of humanity demand a 
 better method for the settlement of inter- 
 national differences than by the cruel and 
 destructive methods of war. If this terri- 
 ble conflict shall bring the nations to see 
 the uselessness of war, the frightful loss of 
 life and exhaustion of the resources of two 
 great peoples will not have been entirely 
 without benefit. Let us hope, also, that 
 even yet the contending nations which are 
 engaged in this unreasoning strife of arms 
 may awake to their duty under the Hague 
 convention, and leave to the Permanent 
 Arbitration Court the final adjustment of 
 their differences. 
 
VI 
 
 SUGGESTED MODIFICATIONS OF THE 
 COURT 
 
 THE practical working of the provisions 
 of the Hague convention, as shown 
 in the two cases which have been akeady 
 dispatched by the Court, has given rise to 
 various suggestions for some modification 
 of, or addition to, these provisions. Hon. 
 W. L. Penfield, SoUcitor of the United 
 States Department of State, who was of 
 counsel for the United States in the hearing 
 of both the Pious Fund and Venezuela 
 cases, has made some valuable suggestions 
 in that direction,^ as well as other experi- 
 enced jurists. I have space to notice these 
 only very briefly. ' 
 
 * Some Problems of International Arbitration, an Ad- 
 dress delivered before the New York State Bar Associa- 
 tion, by Hon. William L. Penfield, 1904. 
 79 
 
ARBITRATION 
 
 The convention provided that the con- 
 ditions under which powers not represented 
 in the Conference might become adher- 
 ents to it should be determined hereafter 
 by the powers which had already signed it. 
 No action has yet been taken in that di- 
 rection. For this reason, all the Ameri- 
 can republics, except the United States 
 and Mexico, have no representation in the 
 Hague Court, and the result is that it is prac- 
 tically a European tribunal. When these 
 two last-mentioned nations came to select 
 the judges to try the Pious Fund case, they 
 were forced either to select judges from 
 among their own citizens, or to choose 
 those of European or Oriental nationali- 
 ties. It is a serious defect in the organiza- 
 tion of that Court that these numerous 
 American republics should be excluded 
 from furnishing their quota for the perma- 
 nent panel. The Conference contemplated 
 the desirability of calling another similar 
 conference at no distant day. Should such 
 80 
 
MODIFICATIONS OF THE COURT 
 
 further conference be held, it would doubt- 
 less heal this defect in the existing con- 
 vention. 
 
 There is nothing in the convention which 
 prevents one of the litigants from selecting 
 as a judge to hear his case one of the mem- 
 bers named by it for the permanent panel. 
 It has been a much disputed question 
 whether an interested party should be 
 represented on the Court by a judge of 
 its own nationality. In the two cases thus 
 far heard by the Court, the judges were 
 taken from non-interested countries, and 
 the weight of opinion seems to be in that 
 direction. 
 
 The propriety of a member of the per- 
 manent panel of the Court appearing as 
 counsel for a litigating party has been 
 seriously questioned. Two of its members 
 appeared as opposing counsel in the Pious 
 Fund case, and other members appeared 
 in like capacity in the Venezuela case. In 
 the latter instance, protests against the 
 81 
 
ARBITRATION 
 
 practice were filed in the Court by both 
 Venezuela and Great Britain. This sub- 
 ject was fully discussed in the Conference, 
 and an effort was made to place in the con- 
 vention a prohibition against the practice; 
 but while the general sentiment was against 
 the assumption of the functions of counsel 
 by a member of the Court, it was deemed 
 best to take no definite action, trusting 
 that the good sense and propriety of the 
 members of the Court would finally evolve 
 a rule which would safeguard the reputa- 
 tion of the bench. The experience in the 
 two cases heard seems to call for a pro- 
 hibitive rule on the subject. 
 
 Attention has been directed to the fact 
 that the organization of the Court is a 
 loose one. The persons are named by the 
 respective governments and they are en- 
 rolled as members of the Court, but, as 
 has been seen, they may never be called 
 upon to serve as judges. Yet their ac- 
 ceptance of the appointment imphes a 
 82 
 
MODIFICATIONS OF THE COURT 
 
 readiness to serve whenever chosen. No 
 provision is made for compensation, ex- 
 cept when the judges are actually called 
 to duty. As the members are expected to 
 serve whenever invited, without regard to 
 the importance of the case, it has been 
 suggested that some arrangement should 
 be made to pay them a reasonable retainer. 
 When this matter was before the Con- 
 ference, it was considered the province of 
 each government to determine the subject 
 with its own appointees. 
 
 An argument used against a resort to 
 the Hague Court is the matter of expense. 
 In the Pious Fund case, the five judges 
 were paid $5000 each. To this expense 
 was added that for counsel, a staff of clerks, 
 French and English stenographers, and 
 printing the evidence and arguments. The 
 objection might not be weighty with the 
 great nations, but the expense would press 
 heavily against the smaller states with 
 limited resources. It is a matter which 
 
 83 
 
ARBITRATION 
 
 commends itself to the consideration of the 
 Great Powers. 
 
 The language to be used in the pro- 
 ceedings and records of the Tribunal has 
 been wisely left by the convention to be 
 fixed by the parties resorting to the Tribu- 
 nal. The experience of the Court has shown 
 that it is of much importance that in the 
 special agreement of arbitration in each 
 case the language to be used should be 
 explicitly fixed. French is the prevailing 
 tongue used in the international assemblies 
 in Europe and in diplomacy, but its com- 
 pulsory use would, in many cases, work 
 inconvenience and sometimes serious hard- 
 ship. Its enforcement in the Hague Tri- 
 bunal would debar the great majority of 
 American lawyers, and would discourage 
 the resort by American States to the Court. 
 English is now the language most largely 
 prevalent among the Christian nations. 
 
 In the Pious Fund case, the minutes of 
 the proceedings and the award were in 
 84 
 
MODIFICATIONS OF THE COURT 
 
 French, the oral language of the Tribunal 
 was English, and both French and English 
 were used in the oral arguments ; the 
 Parisian stenographer, however, confessed 
 his inability to accurately report some of 
 the arguments spoken in French with a 
 Spanish accent. In the Venezuela case, it 
 was agreed that the EngUsh language 
 should be used in the proceedings, but that 
 the arguments might be made in any other 
 language. No stipulation was made that 
 the judges should be familiar with the 
 English language, as it seemed unnecessary, 
 in view of the provision as to the language 
 of the proceedings ; but it resulted that 
 some of the members of the Tribunal were 
 not able to speak EngUsh fluently, and 
 out of consideration for them it was agreed 
 that the language used orally by the Tri- 
 bunal should be the French. 
 
 Notwithstanding the defects which have 
 been developed in the condition and prac- 
 tice of the Hague Court, some of which I 
 85 
 
ARBITRATION 
 
 have briefly noted, it is gratifying to see 
 that it has proved so well adapted for the 
 exalted purpose for which it was created, 
 and that its imperfections, which are not 
 serious, may easily be cured. 
 
VII 
 SPECIAL AND JOINT COMMISSIONS 
 
 UP to this point we have been consider- 
 ing the adjustment of international 
 differences by a resort to the Hague 
 Court. But the nations which are parties 
 to the Hague arbitration convention are 
 not precluded from the adoption of some 
 other method for the amicable adjustment 
 of their controversies. It may be found less 
 expensive and more expeditious, in cases of 
 minor importance, to resort to other chan- 
 nels than the Hague Court. So also there 
 may be exceptional reasons why appeal to 
 this Court may not seem best. The fact 
 already discussed, of questions which gov- 
 ernments are not willing to put to the 
 hazard of arbitration, leads to a considera- 
 tion of some other course of action to avoid 
 hostilities. 
 
 87 
 
ARBITRATION 
 
 The method suggested is either by the 
 creation of a special international tribu- 
 nal, composed of an uneven number of 
 judges, or, as in some cases in the past, 
 by a joint commission, composed of an 
 equal number of citizens or subjects of the 
 interested parties. The special arbitration 
 tribunal involves questions so similar to 
 those already discussed as to the Hague 
 Court, that I deem it unnecessary to give 
 further attention to it. I therefore invite a 
 consideration of joint commissions of the 
 interested nations. 
 
 It has been seen that there is a class 
 of controversies which, in the present state 
 of public sentiment, it does not seem pos- 
 sible to submit to arbitration. We have 
 seen that the Hague convention recognizes 
 only two classes of cases as within its pur- 
 view — questions of a judicial character 
 and regarding the interpretation of trea- 
 ties; and that the Anglo-French and other 
 recent conventions, in seeking to make 
 88 
 
SPECIAL AND JOINT COMMISSIONS 
 
 arbitration compulsory in these two classes, 
 have still further limited its scope by ex- 
 empting such of those questions as affect 
 the vital interests, the independence, and 
 the honor of the state. Hence, until the 
 intelligence and conscience of mankind are 
 awakened to demand a higher standard 
 of international justice, there are a large 
 number of questions, especially of a politi- 
 cal character, which remain outside of the 
 pale of arbitration. 
 
 Is it not possible to control controversies 
 belonging to these classes in such a way as 
 to bring about an adjustment in aggravated 
 cases by some other method than the ar- 
 bitrament of war. J* The Washington Con- 
 ference, while it recommended uncondi- 
 tional arbitration, recognized the existence 
 of the sentiment alluded to; and it further 
 recommended that : — 
 
 " Governments should agree not to resort 
 in any case to hostile measures of any de- 
 scription till an effort had been made to 
 89 
 
ARBITRATION 
 
 settle any matter in dispute by submitting 
 the same either to the Permanent Court at 
 The Hague, or to a commission composed 
 of an equal number of persons from each 
 country, of recognized competence in ques- 
 tions of international law." 
 
 Ex-President Harrison, in his argument 
 before the Venezuela tribunal at Paris in 
 1899, referred to the work of the Hague 
 Conference, then in session, in the following 
 forcible language : — 
 
 " Mr. President : It has been to me a 
 matter of special interest that the Presi- 
 dent of this tribunal [Professor F. de Mar- 
 tens], after his designation by these two 
 contending nations for that high place 
 which assigned to him the duty of partici- 
 pating in practical arbitration between na- 
 tions, was called by his great Sovereign to 
 take part in a conference which I believe will 
 be counted to be one of the greatest assem- 
 blies of the nations that the world has yet 
 seen, not only in the personnel of those who 
 are gathered together, but in the wide and 
 widening effect which its resolutions are 
 to have upon the intercourse between na- 
 90 
 
SPECIAL AND JOINT COMMISSIONS 
 
 tions in the centuries to come. There was 
 nothing, Mr. President, in your proceedings 
 at The Hague that so much attracted my 
 attention and interest as the proposition to 
 constitute a permanent court of arbitration. 
 It seems to me that if this process of settKng 
 international differences is to commend 
 itself to the nations, it can only hope to set 
 up for the trial of such questions an abso- 
 lutely impartial judicial tribunal. If con- 
 ventions, if accommodation, and if the rule 
 of "give and take" are to be used, then let 
 the diplomatists settle the question ; but 
 when they have failed in their work, and 
 the question between two great nations 
 is submitted for judgment, it seems to me 
 necessarily to imply the introduction of a 
 judicial element into the controversy." 
 
 President Harrison was addressing his 
 remarks to a tribunal which he was seeking 
 to impress with the judicial character of 
 the question before it, but which failed to 
 take that view of it in their decision, and 
 did just what he said a judicial tribunal 
 should not do — compromise the conflict- 
 ing territorial claims of the litigants. The 
 91 
 
ARBITRATION 
 
 case he had in hand illustrates the fact that 
 arbitration tribunals often have to reach a 
 mean course between the contending claims 
 submitted to them. With the instincts of 
 a highly trained judicial mind, with the 
 ardent devotion which many of my readers 
 know he had for his profession, the Ameri- 
 can lawyer in Paris pleaded with good 
 reason for a high ideal for the tribunal 
 about to be created at The Hague. It may 
 not always be realized there, but it is pos- 
 sible in such commissions as seem to be 
 contemplated by the Washington resolu- 
 tion just quoted. 
 
 Allusion has been made to the fact that 
 questions often arise between nations which 
 they are not willing to hazard by the award 
 of foreign judges, and about which, with 
 the most friendly intentions, they cannot 
 agree. The controversy may involve ques- 
 tions of law, or mixed questions of law and 
 fact. It is often quite possible to reach a 
 solution by reference to a commission of 
 
SPECIAL AND JOINT COMMISSIONS 
 
 impartial jurists composed of an equal 
 number from both countries. The Alaskan 
 boundary dispute is a happy illustration of 
 this. 
 
 The Alaskan boundary had become an 
 irritating controversy, which threatened the 
 peace of the two countries. Great Britain 
 was willing to submit the question to ar- 
 bitration, but in view of the fact that the 
 United States had had uninterrupted pos- 
 session of the territory in dispute for many 
 years, the public sentiment of the country 
 would not permit its rulers to accept the 
 British proposition. After much discussion, 
 it was agreed that the questions involved 
 should be submitted to a commission of 
 six jurists, composed of three citizens or 
 subjects from each country. The com- 
 mission met in London to examine the 
 evidence and hear argument of counsel. It 
 was conceded that all questions turned 
 upon the interpretation of a treaty, a duty 
 eminently suited to the determination of 
 93 
 
ARBITRATION 
 
 jurists. A decision on all the questions was 
 made, and in accordance with that decision, 
 the two governments have directed their 
 survey officials to lay oJBf and mark the 
 boundary, and that work has been com- 
 pleted. A dispute which could not go to 
 arbitration was thus adjusted by a judicial 
 commission. Such a procedure will com- 
 mend itself especially to lawyers, whose 
 province it is to aid in the settlement of 
 controversies by law and reason, and not 
 by force. 
 
 Special commissions for the consider- 
 ation of matters which cannot secure a 
 reference to arbitration may serve other 
 useful purposes. The finding of a body of 
 jurists who look dispassionately and judi- 
 cially at the question, unembarrassed by 
 policy or politics, may so elucidate the law 
 and the facts as to enable the disputing 
 governments to reach a basis of settlement 
 which had not been possible through di- 
 plomacy. 
 
 94 
 
SPECIAL AND JOINT COMMISSIONS 
 
 They also serve the important purpose 
 of securing delay when the passions of both 
 the disputant nations are wrought up to 
 a high pitch of excitement and patriotism. 
 Most wars may be avoided, if time is 
 aflForded to treat the subject of dispute with 
 calmness and sober reason. It should be 
 the aim of the advocates of arbitration to 
 secure an amendment or addition to the 
 compulsory treaties recently made between 
 various of the European powers, similar to 
 the provision recommended by the Wash- 
 ington Conference, pledging the contracting 
 parties, where arbitration is unattainable, 
 not to resort in any case to hostilities till 
 an effort is made to settle the matter in 
 dispute by a commission of jurists of the 
 nationalities of the parties. Such a stipu- 
 lation will go far to preserve the peace of 
 the world. 
 
vni 
 
 CONCLUSION 
 
 SOME of the friends of universal peace, 
 while commending the spirit of the 
 Hague Conference, assert that its Perma- 
 nent Court is hopelessly inadequate, that 
 arbitration treaties between nations, such 
 as that between France and England, will 
 not prevent war, and that the effective 
 remedy is a world's parliament of nations, 
 clothed with a mandate to preserve peace, 
 and to compel disputing nations to submit 
 their grievances and claims to arbitration 
 or the judgment of the parliament. 
 
 Are the promises held out by the Hague 
 Court illusory ? Is it destined to receive the 
 condemnation of the nations, or to die of 
 neglect and non-use ? I hope not. I think 
 not. The delegates to that great assembly 
 were practical men. They did not even con- 
 
 96 
 
CONCLUSION 
 
 demn war as wholly unrighteous. They did 
 not attempt the impossible. They recog- 
 nized their work as imperfect, but it was 
 the best then attainable. I have pointed 
 out some of the defects of the arbitration 
 convention, and have suggested amend- 
 ments which are possible of attainment at 
 no distant day. I think it should be the 
 policy of the friends of universal peace to 
 labor to perfect that instrument, and to 
 make the Hague Court popular with the 
 nations as an ejBFective means of adjusting 
 international differences. 
 
 A permanent world's parliament of states 
 is a long way off, and while it is a worthy 
 ideal, its advocates should not decry the 
 Hague Court, or do anything to lessen the 
 confidence of the nations in its utility. The 
 Conference, . as has already been noted, 
 contemplated a similar assembly in the 
 near future to amend the arbitration con- 
 vention, and to consider the exemption of 
 private property on the high sea in time of 
 97 
 
ARBITRATION 
 
 war, a measure urged upon that body by 
 the delegates from the United States. Other 
 matters of international moment are press- 
 ing for settlement. 
 
 The Interparliamentary Union, at its 
 session in St. Louis in September, 1904, 
 adopted a resolution asking the President 
 of the United States to call a second Peace 
 Conference of the nations of the world.^ 
 Similar action was taken by the Interna- 
 tional Congress of Lawyers and Jurists, 
 held at St. Louis the same month, and a 
 week later by the International Peace Con- 
 gress at Boston. President Roosevelt has 
 responded favorably to the request coming 
 from such distinguished bodies of repre- 
 sentatives from all countries, and the first 
 step towards the issuance of a call has been 
 taken in a circular letter from the Depart- 
 ment of State, asking the views of the 
 several governments as to the time of the 
 convocation of such a conference, and an 
 
 * See Appendix E, for the full text of the resolutions. 
 98 
 
CONCLUSION 
 
 indication as to their willingness to par- 
 ticipate in it. The present war between 
 Russia and Japan may postpone the as- 
 sembling of the Conference, but we may 
 confidently look for its meeting at no dis- 
 tant day. In anticipation of that event, it 
 behooves the friends of arbitration through- 
 out the world to influence their respective 
 governments to make still more effective 
 the Hague Court. 
 
 It is the comment of those who have 
 studied the deliberations of the last Con- 
 ference and the action of the nations on the 
 subject of arbitration, that the govern- 
 ments have been in advance of the public 
 sentiment in this matter. The unthinking 
 mass of mankind are fond of military dis- 
 play, and take a deep interest in the conflict 
 of armies. The patriotic spirit rejoices in 
 the achievements of the military heroes 
 and the triumphs of its country in the field 
 of arms. Said a Senator of the United 
 States, an accomplished statesman and an 
 99 
 
ARBITRATION 
 
 able lawyer, to me recently, "There is no 
 popular demand in this country for these 
 arbitration treaties; the Sentiment on the 
 subject is mainly manufactured." 
 
 We might point the Senator to the fre- 
 quent conferences which have been held 
 in Washington, and annually at Mohonk, 
 embracing representatives of all classes 
 of society in the United States, and notably 
 to the utterances of the Interparliamentary 
 Union, the Congress of Jurists at St. Louis, 
 and the Peace Congress at Boston. But 
 his statement challenges the friends of 
 peace in this country to manifest still fur- 
 ther their devotion to the cause. When 
 the arbitration treaties negotiated by Sec- 
 retary Hay are transmitted by the President 
 to the Senate, it should be made clear to 
 that body that the great mass of the people 
 of the United States are in hearty sympa- 
 thy with the Executive department of the 
 Government in this matter. 
 
 The members of the Mohonk Arbitra- 
 100 
 
CONCLUSION 
 
 tion Conference, who for years have been 
 laboring for the action taken by the Gov- 
 ernment, should be active in making their 
 sentiments known to their representatives 
 in the Senate. Chambers of commerce and 
 business organizations, which have already 
 so generally declared in favor of interna- 
 tional arbitration, should again raise their 
 potential voices in its favor. The labor or- 
 ganizations, whose members have to bear 
 in large measure the sacrifice of life which 
 war entails, are most deeply interested in 
 peace. The clergy and all the other pro- 
 fessions of education and inteUigence owe 
 it to their country to throw their weighty 
 influence in favor of this beneficent mea- 
 sure. No class of society can do more to 
 bring about a public sentiment in support 
 of arbitration than the lawyers of the coun- 
 try. Happily, they have in their National 
 and State associations made their views 
 known in unmistakable terms. I again 
 cite the action of the New York State 
 101 
 
ARBITRATION 
 Bar Association. After full discussion of 
 the subject and its careful study by a com- 
 mittee of its most prominent members, a 
 plan for a permanent international arbi- 
 tration court was drawn up, and a committee 
 of that body made the journey to Washing- 
 ton to lay it before the President and ask 
 for it the careful attention of the Govern- 
 ment. That plan became the basis of the 
 instructions of the American delegates to 
 the Hague Conference, and the essential 
 features of the Permanent Court now in 
 existence at The Hague are in accordance 
 with that plan. The same Association will 
 doubtless throw its influence in favor of the 
 pending arbitration treaties. 
 
 Notwithstanding the fierce conflict which 
 is raging in the Far East, there is a cheer- 
 ful outlook for international arbitration. 
 Neither should the august initiator of the 
 Hague Conference be too severely censured 
 for inconsistency. Unconditional arbitra- 
 tion was not contemplated by him, and 
 102 
 
CONCLUSION 
 
 many a humane ruler before his day has 
 been unwillingly involved in hostilities. 
 Instances of the avoidance of war are in- 
 creasing in our time. The normal condition 
 of the world now is peace, and for that the 
 rulers of the nations constantly strive. The 
 recent treaty between Great Britain and 
 France, adjusting all outstanding matters 
 of difference between these two ancient 
 and once inveterate enemies, is a hopeful 
 augury for the future conduct of states. A 
 notable example of the spirit of this latter 
 day is the action of the two most southern 
 repubKcs of this hemisphere, in uniting in 
 a treaty of peace and unconditional arbi- 
 tration, whereby their armies are disbanded 
 and their navies reduced by the sale of a 
 number of their battleships and the trans- 
 formation of cruisers into vessels of com- 
 merce. To crown this noble work, Argen- 
 tina and Chile have done weU to erect on the 
 highest peak of the Andes which marks 
 their international boundary, long a sub- 
 103 
 
ARBITRATION 
 
 ject of angry controversy, a statue of the 
 Christ, the Prince of Peace. 
 
 A fresh propaganda for arbitration has 
 opened in Europe, in which the statesmen 
 and jurists of France take the lead. King 
 Edward VII is exerting his mighty influ- 
 ence among the Great Powers in the same 
 direction. The President of the United 
 States, on all proper occasions, raises his 
 voice and shapes the conduct of his Gov- 
 ernment in favor of international arbitra- 
 tion. We know too sadly, by the daily 
 intelligence from the East, that universal 
 peace has not yet come, but we may fondly 
 hope that the era of Alexander, Caesar, 
 and Napoleon has passed never to return; 
 that the ambition of rulers and the rivalry 
 of nations may henceforth lie in the paths 
 of education, industry, and commerce; and 
 that the Hague Court will long stand as 
 a beacon light in the tempestuous sea of 
 international politics, and its influence and 
 efficiency grow with the advancing years. 
 104 
 
APPENDIX 
 
THE HAGUE ARBITRATION CON- 
 VENTION 
 
 CONTENTION FOB THE PEACEFUL SETTLEMENT OF 
 INTEENATIONAIi DIFFERENCES, 1899 
 
 TTIS Majesty the German Emperor, King of 
 Prussia; His Majesty the Emperor of Austria, 
 King of Bohemia, etc., and ApostoKc King of Hun- 
 gary; TTis Majesty the King of the Belgians; His 
 Majesty the Emperor of China; His Majesty the 
 King of Denmark; His Majesty the King of Spain, 
 and in his name Her Majesty the Queen-Regent of 
 the Kingdom; the President of the United States 
 of America; the President of the United States of 
 Mexico; the President of the French RepubUc; Her 
 Majesty the Queen of the United Kingdom of Great 
 Britain and Ireland, Empress of India; His Majesty 
 the King of the Hellenes; His Majesty the King 
 of Italy; His Majesty the Emperor of Japan; His 
 Royal Highness the Grand Duke of Luxemburg, 
 Duke of Nassau; His Highness the Prince of Mon- 
 107 
 
APPENDIX 
 
 tenegro; Her Majesty the Queen of the Nether- 
 lands; His Imperial Majesty the Shah of Persia; 
 His Majesty the King of Portugal and the Al- 
 garves; His Majesty the King of Roumania; His 
 Majesty the Emperor of All the Russias; His Ma- 
 jesty the King of Servia; His Majesty the King 
 of Siam; His Majesty the King of Sweden and 
 Norway; The Swiss Federal Council; His Ma- 
 jesty the Emperor of the Ottomans; and his Royal 
 Highness the Prince of Bulgaria: 
 
 Animated by a strong desire to concert for the 
 maintenance of the general peace; 
 
 Resolved to second by their best efforts the 
 friendly settlement of international disputes; 
 
 Recognizing the solidarity which unites the mem- 
 bers of the society of civilized nations; 
 
 Desirous of extending the empire of law, and of 
 strengthening the appreciation of international jus- 
 tice; 
 
 Convinced that the permanent institution of a 
 Court of Arbitration, accessible to all, in the midst 
 of the independent Powers, will contribute effec- 
 tively to this result; 
 
 Having regard to the advantages attending the gen- 
 eral and regular organization of arbitral procedure; 
 108 
 
APPENDIX 
 
 Sharing the opinion of the august Initiator of the 
 International Peace Conference that it is expedient 
 to solemnly establish, by an international Agree- 
 ment, the principles of equity and right on which 
 repose the security of States and the welfare of 
 peoples ; 
 
 Being desirous of concluding a convention to this 
 effect, have appointed as their Plenipotentiaries, to 
 wit: — 
 
 (Names.) 
 
 Who, after communication of their full powers, 
 found in good and due form, have agreed on the 
 following provisions : — 
 
 Title I. — On the Maintenance of General Peace. 
 Article I. With a view to obviating, as far as 
 possible, recourse to force in the relations between 
 States, the Signatory Powers agree to use their best 
 efforts to insure the pacific settlement of interna- 
 tional differences. 
 
 Title II. — On Good Offices and Mediation. 
 
 Article II. In case of serious disagreement or 
 conflict, before an appeal to arms, the Signatory 
 Powers agree to have recourse, as far as circum- 
 109 
 
APPENDIX 
 
 stances allow, to the good offices or mediation of 
 one or more friendly Powers. 
 
 Aeticle III. Independently of this recourse, the 
 Signatory Powers consider it useful that one or more 
 Powers, strangers to the dispute, should on their 
 own initiative, and as far as circumstances will allow, 
 oflFer their good offices or mediation to the States at 
 variance. 
 
 The right to offer good offices or mediation be- 
 longs to Powers who are strangers to the dispute, 
 even during the course of hostilities. 
 
 The exercise of this right shall never be regarded 
 by one or the other of the parties to the contest as 
 an unfriendly act. 
 
 Article IV. The part of the mediator consists in 
 reconciling the opposing claims and in appeasing 
 the feelings of resentment which may have arisen 
 between the States at variance. 
 
 Article V. The functions of the mediator are at 
 an end when once it is declared, either by one of the 
 parties to the dispute or by the mediating Power 
 itself, that the methods of conciliation proposed by 
 it are not accepted. 
 
 Article VI. Good offices and mediation, whether 
 at the request of the parties at variance or upon the 
 110 
 
APPENDIX 
 
 initiative of Powers who are strangers to the dispute, 
 have exclusively the character of advice, and never 
 have binding force. 
 
 Article VII. The acceptance of mediation can- 
 not, unless there be an agreement to the contrary, 
 have the effect of interrupting, delaying, or hinder- 
 ing mobilization or other measures of preparation 
 for war. 
 
 If mediation occurs after the commencement of 
 hostilities, it causes no interruption to the military 
 operations in progress, unless there be an agreement 
 to the contrary. 
 
 Article VIII. The Signatory Powers are agreed 
 in recommending the appKcation, when circum- 
 stances allow, of special mediation in the following 
 form: — 
 
 In the case of a serious difference endangering the 
 peace, the States at variance shall each choose a 
 Power, to whom they intrust the mission of entering 
 into direct conmiunication with the Power chosen 
 on the other side, with the object of preventing the 
 rupture of pacific relations. 
 
 During the period of this mandate, the term of 
 which, unless otherwise stipulated, cannot exceed 
 thirty days, the States in conflict shall cease from all 
 111 
 
APPENDIX 
 
 direct communication on the subject of the dispute, 
 which is regarded as having been referred exclusively 
 to the mediating Powers, who shall use their best 
 efforts to settle the controversy. 
 
 In case of a definite rupture of pacific relations, 
 these Powers remain charged with the joint duty of 
 taking advantage of every opportunity to restore 
 peace. 
 
 Title III. — On International Commissions of 
 Inquiry. 
 
 Akticle IX. In differences of an international 
 nature involving neither honor nor vital interests, 
 and arising from a difference of opinion on matter of 
 fact, the Signatory Powers recommend that parties 
 who have not been able to come to an agreement by 
 diplomatic methods should, as far as circumstances 
 allow, institute an International Commission of 
 Inquiry, to faciUtate a solution of the differences by 
 elucidating the facts by means of an impartial and 
 conscientious investigation. 
 
 Article X. International Commissions of In- 
 quiry shall be constituted by a special agreement 
 between the parties to the controversy. The agree- 
 ment for the inquiry shall specify the facts to be 
 112 
 
APPENDIX 
 
 examined and the extent of the powers of the com- 
 missioners. It shall fix the procedure. Upon the 
 inquiry both sides shall be heard. The procedure to 
 be observed, if not provided for in the Convention 
 of Inquiry, shall be fixed by the Commission. 
 
 Article XI. The International Commissions of 
 Inquiry shall be formed, unless otherwise stipu- 
 lated, in the manner fixed by Article XXXII of the 
 present Convention. 
 
 Article XII. The Powers in dispute agree to 
 supply the International Commission of Inquiry, as 
 fuUy as they may consider it possible, with all means 
 and facihties necessary to enable it to arrive at a 
 complete acquaintance and correct understanding 
 of the facts in question. 
 
 Article XIII. The International Commission of 
 Inquiry shall present to the parties in dispute its 
 report signed by all the members of the Commis- 
 sion. 
 
 Article XIV. The report of the International 
 Commission of Inquiry shall be hmited to a state- 
 ment of the facts, and shall in no way have the char- 
 acter of an arbitral award. It leaves the Powers in 
 controversy freedom as to the effect to be given to 
 such statement. 
 
 113 
 
APPENDIX 
 Title IV. — On International Arbitration. 
 
 Chapteb I. — On Arbitral Jiistice. 
 
 Abticle XV. International arbitration has for its 
 object the determination of controversies between 
 States by judges of their own choice, upon the basis 
 of respect for law. 
 
 Article XVI. In questions of a judicial charac- 
 ter, and especially in questions regarding the inter- 
 pretation or application of international treaties or 
 conventions, arbitration is recognized by the Signa- 
 tory Powers as the most efficacious and at the same 
 time the most equitable method of deciding contro- 
 versies which have not been settled by diplomatic 
 methods. 
 
 Article XVII. An agreement of arbitration may 
 be made with reference to disputes already existing 
 or those which may hereafter arise. It may relate to 
 every kind of controversy or solely to controversies 
 of a particular character. 
 
 Akticle XVin. The agreement of arbitration 
 implies the obligation to submit in good faith to the 
 decision of the arbitral tribunal. 
 
 Article XIX. Independently of existing general 
 or special treaties imposing the obKgation to have 
 114 
 
APPENDIX 
 
 recourse to arbitration on the part of any of the 
 Signatory Powers, these Powers reserve to them- 
 selves the right to conclude, either before the ratifi- 
 cation of the present Convention, or subsequent to 
 that date, new agreements, general or special, with 
 a view of extending the obKgation to submit contro- 
 versies to arbitration, to all cases which they con- 
 sider suitable for such submission. 
 
 Chapter n. — On the Permanent Court of Arbi- 
 tration. 
 
 Aeticle XX. With the object of facihtating an 
 immediate recourse to arbitration for international 
 differences which could not be settled by diplomatic 
 methods, the Signatory Powers undertake to organ- 
 ize a permanent Court of Arbitration accessible at 
 all times, and acting, unless otherwise stipulated by 
 the parties, in accordance with the rules of procedure 
 included in the present Convention. 
 
 Aeticle XXI. The permanent Court shall have 
 jurisdiction of all cases of arbitration, unless there 
 shall be an agreement between the parties for the 
 estabhshment of a special tribunal. 
 
 Article XXII. An International Bureau shall 
 be estabUshed at The Hague, and shall serve as the 
 115 
 
APPENDIX 
 
 record office for the Court. This Bureau shall be the 
 medium of all communications relating to the Court. 
 It shall have the custody of the archives, and shall 
 conduct all the administrative business. The Sig- 
 natory Powers agree to furnish the Bureau at The 
 Hague with a certified copy of every agreement of 
 arbitration arrived at between them, and of any 
 award therein rendered by a special tribunal. They 
 also undertake to furnish the Bureau with the laws, 
 rules, and documents, eventually declaring the exe- 
 cution of the judgments rendered by the Court. 
 
 Abticlb XXIII. Within three months following 
 the ratification of the present act, each Signatory 
 Power shall select not more than four persons, of 
 recognized competence in questions of international 
 law, enjoying the highest moral reputation, and dis- 
 posed to accept the duties of arbitrators. The per- 
 sons thus selected shall be enrolled as members of 
 the Court, upon a list which shall be communicated 
 by the Bureau to all the Signatory Powers. Any 
 alteration in the list of arbitrators shall be brought 
 to the knowledge of the Signatory Powers by the 
 Bureau. Two or more Powers may unite in the 
 selection of one or more members of the Court. The 
 same person may be selected by different powers. 
 116 
 
APPENDIX 
 
 The members of the Court shall be appointed for 
 a term of six years, and their appointment may be 
 renewed. In case of the death or resignation of a 
 member of the Court, his place shall be filled in 
 accordance with the method of his appointment. 
 
 Aeticle XXIV. Whenever the Signatory Powers 
 wish to have recourse to the permanent Court for the 
 settlement of a difference that has arisen between 
 them, the arbitrators selected to constitute the Tri- 
 bunal which shall have jurisdiction to determine such 
 difference shall be chosen from the general Ust of 
 members of the Court. If such arbitral Tribunal be 
 not constituted by the special agreement of the 
 parties, it shall be formed in the following manner: 
 Each party shall name two arbitrators, and these 
 together shall choose an umpire. If the votes shall 
 be equal, the choice of the umpire shall be intrusted 
 to a third Power selected by the parties by common 
 accord. If an agreement is not arrived at on this sub- 
 ject, each party shall select a different Power, and 
 the choice of the umpire shall be made by the united 
 action of the Powers thus selected. The Tribunal 
 being thus constituted, the parties shall communi- 
 cate to the Bureau their decision to have recourse to 
 the Court, and the names of the arbitrators. The 
 117 
 
APPENDIX 
 
 Tribunal of Arbitration shall meet at the time fixed 
 by the parties. The members of the Court, in the 
 discharge of their duties, and outside of their own 
 country, shall enjoy diplomatic privileges and 
 immunities. 
 
 Article XXV. The Court of Arbitration shall 
 ordinarily sit at The Hague. Except in cases of neces- 
 sity, the place of session shall be changed by the 
 Court only with the assent of the parties. 
 
 Abticle XXVI. The International Bureau at 
 The Hague is authorized to put its offices and its 
 staff at the disposal of the Signatory Powers, for the 
 performance of the duties of any special tribunal 
 of arbitration. The jurisdiction of the permanent 
 Court may be extended, under conditions prescribed 
 by its rules, to controversies existing between Non- 
 signatory Powers, or between Signatory Powers and 
 Non-signatory Powers, if the parties agree to submit 
 to its jurisdiction. 
 
 Article XXVII. The Signatory Powers consider 
 it their duty, in case a serious dispute threatens to 
 break out between two or more of them, to remind 
 these latter that the permanent Court of Arbitration 
 is open to them. Consequently, they declare that the 
 fact of reminding the parties in controversy of the 
 118 
 
APPENDIX 
 
 provisions of the present Convention, and the advice 
 given to them, in the higher interests of peace, to 
 have recourse to the permanent Court, can only be 
 considered as an exercise of good offices. 
 
 Aeticle XXVIII. A permanent administrative 
 Council composed of the diplomatic representatives 
 of the Signatory Powers accredited to The Hague, 
 and of the Netherlands Minister of Foreign Affairs, 
 who shaU act as President, shall be constituted in 
 that city as soon as possible after the ratification of 
 the present Act by at least nine Powers. This Coun- 
 cil shall be charged with the establishment and 
 organization of the International Bureau, which 
 shall remain under its direction and control. It shall 
 notify the Powers of the constitution of the Court 
 and provide for its installation. It shall make its 
 own by-laws, and all other necessary regulations. It 
 shall decide all questions of administration which 
 may arise with regard to the operations of the Court. 
 It shall have entire control over the appointment, 
 suspension, or dismissal of officials and employees of 
 the Bureau. It shall determine their allowances and 
 salaries, and control the general expenditure. At 
 meetings duly summoned five members shall con- 
 stitute a quorum. All decisions shall be made by a 
 119 
 
APPENDIX 
 
 majority of votes. The Council shall communicate 
 to each Signatory Power without delay the by-laws 
 and regulations adopted by it. It shall furnish them 
 with a signed report of the proceedings of the Court, 
 the working of the administration, and the expenses. 
 Article XXIX. The expense of the Bureau shall 
 be borne by the Signatory Powers in the proportion 
 established for the International Bureau of the 
 International Postal Union. 
 
 Chapter III. — On Arbitral Procedure. 
 
 Article XXX. With a view to encouraging the 
 development of arbitration, the Signatory Powers 
 have agreed on the following rules, which shall be 
 appKcable to the arbitral procedure, unless the par- 
 ties have agreed upon different regulations. 
 
 Article XXXI. The Powers which resort to 
 arbitration shall sign a special act (compromis), in 
 which the subject of the difference shall be precisely 
 defined, as well as the extent of the powers of the 
 arbitrators. This act implies an agreement by each 
 party to submit in good faith to the award. 
 
 Article XXXII. The duties of arbitrator may be 
 conferred upon one arbitrator alone, or upon several 
 arbitrators selected by the parties, as they please, or 
 120 
 
APPENDIX 
 
 chosen by them from the members of the permanent 
 Court of Arbitration estabKshed by the present act. 
 FaiUng the constitution of the Tribunal by direct 
 agreement between the parties, it shall be formed in 
 the following manner : — 
 
 Each party shall appoint two arbitrators, and 
 these shall together choose an umpire. In case of an 
 equal division of votes the choice of the umpire shall 
 be intrusted to a third Power to be selected by the 
 parties by common accord. If no agreement is 
 arrived at on this point, each party shall select a dif- 
 ferent Power, and the choice of the umpire shall 
 be made by agreement between the Powers thus 
 selected. 
 
 Article XXXIII. "When a Sovereign or Chief of 
 State shall be chosen for an arbitrator, the arbitral 
 procedure shall be determined by him. 
 
 Article XXXIV. The umpire shall preside over 
 the Tribunal. When the Tribunal does not in- 
 clude an umpire, it shall appoint its own presiding 
 officer. 
 
 Article XXXV. In case of the death, resigna- 
 tion, or absence for any cause, of one of the arbi- 
 trators, the place shall be filled in the manner pro- 
 vided for his appointment. 
 121 
 
APPENDIX 
 
 Akticle XXXVI. The parties shall designate the 
 place where the Tribunal is to sit. Failing such a 
 designation, the Tribunal shall sit at The Hague. 
 The place of session thus determined shall not, 
 except in the case of overwhelming necessity, be 
 changed by the Tribunal without the consent of 
 the parties. 
 
 Article XXXVII. The pari;ies shall have the 
 right to appoint agents or attorneys to represent 
 them before the Tribunal, and to serve as inter- 
 mediaries between them and it. 
 
 They are also authorized to employ for the de- 
 fence of their rights and interests before the Tribunal 
 counsellors or soUcitors named by them for that 
 purpose. 
 
 Article XXXVIH. The Tribunal shall decide 
 upon the choice of languages used by itself or to 
 be authorized for use before it. 
 
 Article XXXIX. As a general rule, the arbitral 
 procedure shall comprise two distinct phases, — 
 preliminary examination and discussion. Prelimi- 
 nary examination shall consist in the communication 
 by the respective agents to the members of the Tri- 
 bunal and to the opposite party, of all printed or 
 written acts, and of all documents containing the 
 122 
 
APPENDIX 
 
 arguments to be invoked in the case. This com- 
 munication shall be made in the form and within 
 the period fixed by the Tribunal, in accordance with 
 Article XLIX. 
 
 The discussion shall consist in the oral develop- 
 ment before the Tribunal of the argument of the 
 parties. 
 
 Article XL. Every document produced by one 
 party must be communicated to the other party. 
 
 Article XLI. The discussions shall be under the 
 direction of the President. They shall be public only 
 in case it shall be so decided by the Tribunal, with 
 the assent of the parties. They shall be recorded 
 in the official minutes drawn up by the Secretaries 
 appointed by the President. These official minutes 
 alone shall have an authentic character. 
 
 Article XLII. When the preliminary examina- 
 tion is concluded, the Tribunal may refuse admis- 
 sion of all new acts or documents, which one party 
 may desire to submit to it, without the consent of the 
 other party. 
 
 Article XLIII. The Tribunal may take into 
 
 consideration such new acts or documents to which 
 
 its attention may be drawn by the agents or counsel 
 
 of the parties. In this case the Tribunal shall have 
 
 123 
 
APPENDIX 
 
 the right to require the production of these acts or 
 documents, but it is obliged to make them known 
 to the opposite party. 
 
 Abticle XLIV. The Tribunal may also require 
 from the agents of the party the production of all 
 papers, and may demand all necessary explanations. 
 In the case of refusal, the Tribunal shall take note 
 of the fact. 
 
 Article XLV. The agent and counsel of the par- 
 ties are authorized to present orally to the Tribunal 
 all the arguments which they may think expedient 
 in support of their cause. 
 
 Article XLVI. They shall have the right to raise 
 objections and to make incidental motions. The 
 decisions of the Tribunal on these points shall be 
 final, and shall not form the subject of any subse- 
 quent discussion. 
 
 Article XLVII. The members of the Tribunal 
 shall have the right to put questions to the agents or 
 counsel of the parties and to demand explanations 
 from them on doubtful points. Neither the questions 
 put nor the remarks made by members of the Tri- 
 bunal during the discussion or argument shall be 
 regarded as an expression of opinion by the Tribunal 
 in general, or by its members in particular. 
 124 
 
APPENDIX 
 
 Article XLVIII. The Tribunal is authorized to 
 determine its own jurisdiction, by interpreting the 
 agreement of arbitration or other treaties which may 
 be quoted in point and by the appUcation of the 
 principles of international law. 
 
 Article XLIX. The Tribunal shall have the 
 right to make rules of procedure for the direction of 
 the trial to determine the form and the periods in 
 which parties must conclude the argument, and to 
 prescribe all the formaUties regulating the admis- 
 sion of evidence. 
 
 Article L. The agents and the counsel of the 
 parties having presented all the arguments and evi- 
 dence in support of their case, the President shall 
 declare the hearing closed. 
 
 Article LI. The dehberations of the Tribunal 
 shall take place with closed doors. Every decision 
 shall be made by a majority of the members of the 
 Tribunal. The refusal of any member to vote shall 
 be noted in the official minutes. 
 
 Article LII. The award shall be made by a 
 majority of votes, and shall be accompanied by a 
 statement of the reasons upon which it is based. It 
 must be drawn up in writing and signed by each 
 of the members of the Tribunal. Those members 
 125 
 
APPENDIX 
 
 who are in the minority may, in signing, state their 
 dissent. 
 
 Article LIII. The award shall be read in a pub- 
 he sitting of the Tribunal, the agents and counsel 
 of the htigants being present or having been duly 
 summoned. 
 
 Article LIV. The award duly pronounced and 
 notified to the agents of the parties in htigation shall 
 decide the dispute finally and without appeal. 
 
 Article LV. The parties may reserve in the 
 agreement of arbitration the right to demand a 
 rehearing of the case. In this case, and in the ab- 
 sence of any stipulation to the contrary, the demand 
 shall be addressed to the Tribunal which has pro- 
 nounced the judgment; but it shall be based only on 
 the discovery of new facts, of such a character as to 
 exercise a decisive influence upon the judgment, and 
 which at the time of the judgment were unknown to 
 the Tribunal itself and to the parties demanding the 
 rehearing. The proceedings for a rehearing can only 
 be begun by a decision of the Tribunal stating ex- 
 pressly the existence of the new fact and recognizing 
 that it possesses the character described in the pre- 
 ceding paragraph, and declaring that the demand is 
 admissible on that ground. The agreement of arbi- 
 126 
 
APPENDIX 
 
 tration shall determine the time within which the 
 demand for a rehearing shall be made. 
 
 Article LVI. The award shall be obhgatory only 
 upon the parties who have concluded the arbitra- 
 tion agreement. When there is a question of the in- 
 terpretation of an agreement entered into by other 
 Powers besides the parties in Ktigation, the par- 
 ties to the dispute shall notify the other Powers 
 which have signed the agreement, of the special 
 agreement which they have concluded. Each one 
 of these Powers shall have the right to take part 
 in the proceedings. If one or more among them 
 avail themselves of this permission, the interpreta- 
 tion in the judgment becomes obligatory upon them 
 also. 
 
 Article LVII. Each party shall bear its own 
 expenses and an equal part of the expenses of the 
 Tribunal. 
 
 General Provisions 
 Article LVIII. The present Convention shall be 
 ratified with as Httle delay as possible. The ratifica- 
 tions shall be deposited at The Hague. An official 
 report of each ratification shall be made, a certified 
 copy of which shall be sent through diplomatic chan- 
 127 
 
APPENDIX 
 
 nels to all the Powers represented in the Peace Con- 
 ference at The Hague. 
 
 Article LIX. The Powers which were repre- 
 sented at the International Peace Conference, but 
 which have not signed this Convention, may become 
 parties to it. For this purpose they will make known 
 to the Contracting Powers their adherence by means 
 of a written notification addressed to all the other 
 Contracting Powers. 
 
 Article LX. The conditions under which Powers 
 not represented in the International Peace Confer- 
 ence may become adherents to the present Conven- 
 tion shaU be determined hereafter by agreement 
 between the Contracting Powers. 
 
 Article LXI. If one of the High Contracting 
 Parties shall give notice of a determination to with- 
 draw from the present Convention, this notification 
 shall have its effect only after it has been made in 
 writing to the Government of the Netherlands and 
 communicated by it immediately to all the other 
 Contracting Powers. This notification shall have no 
 effect except for the Power which has made it. 
 
 In faith of which the Plenipotentiaries have 
 signed the present Convention and aflSxed their seals 
 to it. 
 
 128 
 
APPENDIX 
 
 Done at The Hague, the 29th July, 1899, in a 
 single copy, which shall remain in the archives of the 
 Netherlands Government, and copies of it, duly 
 certified, be sent through the diplomatic channel to 
 the Contracting Powers. 
 
 (Signatures.) 
 
T 
 
 B 
 
 ANGLO-FRENCH TREATY OF 1903 
 
 Translation 
 HE Government of the French Republic, and 
 
 the Government of H. B. Majesty, signatories 
 of the Convention for the pacific settlement of In- 
 ternational disputes, concluded at The Hague, July 
 29, 1899, 
 
 Considering that by Article 19 of this Convention, 
 the High Contracting Parties reserved to themselves 
 the conclusion of agreements in view of recourse to 
 arbitration in all cases which they judged capable of 
 submission to it, 
 
 Have authorized the undersigned to agree as fol- 
 lows : — 
 
 Article I. Differences of a judicial order, or 
 relative to the interpretation of existing treaties 
 between the two Contracting Parties, which may 
 rise, and which it may not have been possible to 
 settle by diplomacy, shall be submitted to the Per- 
 manent Court of Arbitration estabKshed by the 
 130 
 
APPENDIX 
 
 Convention of July 29, 1899, at The Hague, on 
 condition, however, that neither the vital interests, 
 nor the independence or honour of the two Con- 
 tracting States, nor the interests of any State other 
 than the two Contracting States, are involved. 
 
 Article II. In each particular case the High 
 Contracting Parties, before addressing themselves 
 to the Permanent Court of Arbitration, shall sign a 
 special undertaking determining clearly the subject 
 of dispute, the extent of the Arbitral powers, and 
 the details to be observed in the constitution of the 
 Arbitral Tribunal and the procedure. 
 
 Article in. The present arrangement is con- 
 cluded for a duration of five years from the date of 
 
 signature. 
 
 Cambon, 
 
 Lansdowne. 
 London, October 14, 1903. 
 
THE NETHERLANDS-DENMARK 
 TREATY OF 1904 
 
 Translation 
 TTER Majesty the Queen of the Netherlands and 
 His Majesty the King of Denmark, moved 
 by the principles of the Convention for the peace- 
 able settlement of International Disputes, concluded 
 at The Hague on the 29th of July, 1899, and de- 
 siring to estabhsh especially in all reciprocal rela- 
 tions the principle of obUgatory arbitration by a gen- 
 eral agreement in accord with Article 19 of the said 
 treaty, have resolved to enter into a treaty to that 
 end, and have appointed their plenipotentiaries, 
 to wit : — 
 
 Her Majesty the Queen of the Netherlands: 
 Mr. Jacob Dirk Carel Baron van Heeckeren van 
 Kell, Her Majesty's Envoy Extraordinary and Min- 
 ister Plenipotentiary near to His Majesty the King 
 of Denmark, Knight of the Order of the Nether- 
 lands Lion: 
 
 132 
 
APPENDIX 
 
 His Majesty the King of Denmark: 
 
 Mr. John Henrik Deuntzer, Chairman of the 
 Cabinet Council and Minister of Foreign Affairs, 
 Grand Cross of the Danebrog Order and bearer of 
 the honorary cross of the same order, etc., etc., who, 
 having exchanged their powers plenipotentiary, 
 which were found to be in proper order, have agreed 
 to the following provisions : — 
 
 Article I. The High Contracting Powers un- 
 dertake to submit to the Permanent Court of Arbi- 
 tration all mutual differences and disputes that 
 cannot be solved by means of a diplomatic chan- 
 nel. 
 
 Article H. In every case the High Contracting 
 Powers, prior to submitting the case to the Per- 
 manent Court of Arbitration, shall sign a special 
 agreement, clearly describing the subject of the liti- 
 gation, the eixtent of the powers of the arbitrators, 
 and the time which shall be observed in regard to 
 the composition of the Arbitral Tribunal and the 
 procedure. 
 
 Article III. That it be understood that Arti- 
 cle I does not apply to disputes between subjects of 
 any of the contracting States and those of the other 
 contracting State, to the adjudicating of which the 
 133 
 
APPENDIX 
 
 courts of justice of the last mentioned State are 
 empowered according to its own laws. 
 
 Article IV. States, non-signatory to this treaty, 
 shall be allowed to adhere to the same. The State 
 desirous of adhering shall notify each of the con- 
 tracting States in writing of its intention. 
 
 Adhesion shall follow from the day on which the 
 adhering State shall advise that each of these States 
 has notified it of the receipt of its intimation. 
 
 Article V. In case one of the contracting States 
 should withdraw from this treaty, such withdrawal 
 shall only take place one year after the notice 
 thereof is given in writing to each of the other con- 
 tracting States. 
 
 Article VI. This treaty shall be ratified as 
 soon as possible, and the exchange of the acts of 
 ratification take place at The Hague. 
 
 In witness whereof the respective plenipotentiaries 
 have hereto set their hands and aflSxed their seals. 
 Copenhagen, the 12tli of February, 1904. 
 
 (Signed) Cakel van Heeckeken. 
 (Signed) Deuntzer. 
 
D 
 
 EXTRACT FROM TREATY BETWEEN 
 MEXICO AND SPAIN OF 1902 
 
 Translation 
 
 A RTICLE I. The high contracting parties agree 
 to submit to the decision of arbitrators all con- 
 troversies which may arise between them during the 
 existence of the present treaty in which they might 
 not have been able to reach an amicable solution 
 by direct negotiation; provided that said contro- 
 versies affect neither the national independence nor 
 honor. 
 
 Article II. Neither the national independence 
 nor honor shall be considered to be compromised in 
 the following cases: — 
 
 A. When treating of pecuniary damages and pre- 
 judices suffered by one of the contracting states or by 
 its citizens because of illegal acts or omissions on the 
 part of the other contracting state or its citizens. 
 
 B. When treating of the interpretation of the 
 treaties, agreements, and conventions relating to the 
 
 135 
 
APPENDIX 
 
 protection of ownership of artistic, literary, and 
 industrial property, as well as to that of privileges, 
 patents of inventions, trade-marks, mercantile 
 firms, money, weights and measures, and sanitary 
 precautions, either veterinary or to exclude phyl- 
 loxera. 
 
 C When treating of the application of treaties, 
 agreements, and conventions relating to successions, 
 aid, and judicial correspondence. 
 
 D. "When treating of treaties, agreements, and 
 conventions now in force, or which may be cele- 
 brated hereafter, with the object of putting the prin- 
 ciples of public or private international law, either 
 civil or penal, into practice. 
 
 E. When treating of questions which relate to the 
 interpretation or execution of treaties, agreements, 
 and conventions of friendship, commerce, and 
 navigation. 
 
E 
 
 RESOLUTION 
 
 OF THE 
 
 INTERPARLIAMENTARY UNION 
 
 HELD AT ST. liOTTIS, SEPTEMBER, 1904 
 
 TTTHEREAS, Enlightened public opinion and 
 the spirit of modem civilization alike de- 
 mand that differences between nations should be 
 adjudicated and settled in the same manner as 
 disputes between individuals are adjudicated — 
 namely, by the arbitrament of courts in accordance 
 vsdth recognized principles of law; 
 
 The Conference requests the several governments 
 of the worid to send representatives to an interna- 
 tional conference, to be held at a time and place to 
 be agreed upon by them for the purpose of consid- 
 ering: 
 
 First, the questions for the consideration of which 
 the Conference at The Hague expressed a wish that 
 a future conference be called; 
 
 Second, the negotiation of arbitration treaties 
 137 
 
APPENDIX 
 
 between the nations represented at the Conference 
 to be convened; 
 
 Third, the advisabihty of estabUshing an Inter- 
 national Congress to convene periodically for the 
 discussion of international questions. 
 
 And this Conference respectfully and cordially 
 requests the President of the United States to invite 
 all the nations to send representatives to such a 
 conference. 
 
F 
 
 HON. T. E. BURTON'S SPEECH 
 
 ON 
 
 THE NAVAL APPROPRIATION BILL^ 
 
 rriHE Chairman. The gentleman from Ohio is 
 recognized. 
 
 Me. Btieton. Mr. Chairman, I am opposed to 
 the naval program exemplified by this bill. I oppose 
 it because I believe it involves a departure from the 
 fundamental principles and pohcies which are alike 
 the bulwark and the honor of this Republic. 
 
 It involves great extravagance; but that is, after 
 all, a minor consideration. We can in no way illus- 
 trate the growth of our naval estabhshment so well 
 as by referring to certain figures. 
 
 In the years 1886 and 1887 there was expended for 
 the Navy respectively $13,907,000 and $15,141,000. 
 The expenditures for the year 1903 were $82,000,000. 
 The present bill carries a total of $96,000,000, almost 
 
 ^ From the Congressional Record, February 22, 1904, 
 68th Congress, 2d Session, Vol. 38, pp. 2293-5. 
 139 
 
APPENDIX 
 
 seven times as great an amount as that expended in 
 1886, and more than six times as great as the amount 
 expended in 1887. What is the need of this great 
 Navy? What nation on earth is attacking us or 
 threatening us? . . . 
 
 The fact is, we do not need a great navy unless 
 there is a combination of all European powers 
 against the United States, and what is more unlikely! 
 If there were a combination of all these powers, we 
 could not provide a navy which could cope with 
 them without such a change in poUtical, social, and 
 economic conditions as would be absolutely appall- 
 ing to us. Indeed, we could not build a navy greater 
 and stronger than that of Great Britain alone with- 
 out changing the whole framework of society in this 
 country. . . . 
 
 What is the reason, then, for this great expendi- 
 ture of $96,000,000, an amount approaching the 
 total that is expended for the strictly civil side of the 
 Government, bearing in mind that the Post-Office is 
 nearly self-sustaining ? It means that we are inviting 
 the nations of the earth to attack us. It means that 
 we are declaring to the world that we are going to 
 enter into a field entirely different from that which 
 we have occupied in the past; that we are striving to 
 140 
 
APPENDIX 
 
 dominate political affairs in other portions of the 
 earth. Is anybody afraid of the Monroe Doctrine ? 
 In ten years we have had instances enough to show 
 that the Doctrine is admitted by all nations to be 
 an established fact in the diplomatic policy of the 
 world. It has been strained at times, in the opinion 
 of some of us, without awakening any opposition 
 whatever, so there is no cloud over it. Our supre- 
 macy in this hemisphere is admitted, and that su- 
 premacy will rest upon the strongest foundation 
 while it is exercised in justice and with the desire to 
 promote honesty and good faith between these 
 republics and all the nations of the earth. [Ap- 
 plause.] . . . 
 
 I understand one gentleman of this House, speak- 
 ing a few days ago, said that Germany would soon 
 attack us. What hobgobUn disturbed him in his 
 dreams ? [Laughter.] There is just about as much 
 chance of war with Germany as that by some great 
 cataclysm part of the Eastern Hemisphere will slip 
 over here, so that one of her capes will abut against 
 our country. The nations of Europe respect us; 
 they honor us, and, so far as fear is salutary, they 
 fear us. We have an economic advantage as com- 
 pared with any part of the whole world. They know 
 141 
 
APPENDIX 
 
 that in war our friendship is necessary. War is not a 
 matter alone of battleships, nor of men and cannon, 
 but of resources and staying qualities, of ability to 
 provide for the strain and distress of a great struggle. 
 What nation of Europe, if it were engaged in war, 
 would desire to lose our friendship and good-will ? 
 
 There is another very important phase of this 
 question. The tendency of the present time is 
 toward peace. The situation is now such in the Old 
 World that no country can go to war without grave 
 reason, at least without incurring the condemna- 
 tion of the rest. Since 1815, during which time, as it 
 would seem, the world has grown in inventions and 
 in the improvements which come with civiUzation 
 more than in all the centuries before, the nations 
 of Europe have tried to maintain peace and amity, 
 because they knew that war, with its devastation and 
 bloodshed, brings unhappiness and calamity to all 
 the nations of the earth. 
 
 So the nations are warned they must not go to war 
 unless they have the most weighty reasons. Now, 
 here is our country, one which should most of aU set 
 an example which shall look toward a better day of 
 peace and amity, that is spending six times as much 
 for its Navy as it did seventeen years ago. We have 
 142 
 
APPENDIX 
 
 nothing to do with their rivalries and quarrels. 
 Almost as much as by our republican institutions 
 and the push and energy of the American citizen we 
 have gained our present standing among the nations 
 of the earth by our splendid isolation. We are re- 
 mote from wars and conflicts. Shall we declare to 
 the nations of the earth that we will depart from 
 these old pohcies; that new ambitions inspire and 
 actuate us ? Shall our battleships line up vsdth the 
 battleships of the countries which for centuries have 
 been maintaining an extensive and depressing miU- 
 tary estabUshment ? 
 
 K so, the indication does not look toward peace; 
 it looks toward war, and we will be taking a back- 
 ward step. " My art, it was but justice," were the 
 words the dramatist put in the mouth of Cardinal 
 Richelieu. Our art and our glory, they are but 
 justice. [Applause.] And if we stand for the tri- 
 umphs of just diplomacy rather than by those of 
 cannon and guns, we will gain the respect of the 
 world. Oh, but, some one says, it needs war to be- 
 stir and maintain our manhood. There are enough 
 opportunities for heroism in this world, with its tra- 
 gedies and difficulties, without war. I have listened 
 here sometimes to men who fomented conflict by 
 143 
 
APPENDIX 
 
 their utterances. I have wished there was a rule in 
 this House that when a man talked in favor of war, 
 it should be settled that in case war ensued he must 
 stand in the most conspicuous place on the firing 
 line for at least the length of time he consumed in 
 his speech. [Applause.] 
 
 " They are the men behind the guns," says one of 
 our humorists; " yes, 4000 miles behind the gun and 
 wiUing to be farther." [Applause.] We cannot afford 
 as a country to allow our example to be exerted in 
 the direction of war and great military establish- 
 ments. It is not alone the first expense, which will 
 increase far more than we can reahze, but we must 
 consider that probably for every dollar invested in a 
 battleship, in a short space of years ten dollars will 
 be required for the maintenance and equipment of 
 the ambitious naval estabhshment which is pro- 
 jected. You must have dry docks and you must have 
 naval stations; you must have coaUng stations and 
 colliers, with all the incidents which belong to a great 
 navy. Nearly one hundred miUions will be expended 
 now and far more in the early future. But far more 
 important than the expenditure of money is the 
 threatening prospect for the future which this poUcy 
 affords. 
 
 144 
 
APPENDIX 
 
 I wish that the words of him whose birthday we 
 celebrate to-day could be heard again. His heart 
 was always for peace. He was ready to fight and 
 to die for his country, but he left in his Farewell 
 Address that which is a priceless heritage, the 
 injunction to cultivate and maintain peace and 
 good-will with all nations. [Applause on the Demo- 
 cratic side.] He set forth principles which will be 
 immortal because they are immortally right. I 
 wish I could with some degree of force so much as 
 whisper in the ears of men those words of Wilham 
 McKinley: — 
 
 " Let us ever remember that our interest is in con- 
 cord, not conflict; that our true glory rests in the 
 triumphs of peace, not those of war." 
 
 Oh, but it is said, "This is merely a defensive 
 measure; the best way to secure peace is to be ready 
 for war, and so build up a great navy." How similar 
 to that are the words of Uriah Heep when he said, 
 " We know that we are humble, but we are afraid 
 that other people that are not humble will get the 
 start of us." The best way to secure peace is to pro- 
 mote every means for an amicable settlement of na- 
 tional controversies by an international tribunal Uke 
 the courts which render judgments between individ- 
 145 
 
APPENDIX 
 
 uals, so that its judgments may be sanctioned and 
 enforced. The strongest sanction that can be given 
 as the years will go by, a force as strong as a despo- 
 tism for the enforcements of its decrees, will be that 
 of public opinion, which is the controlling force in 
 our own country at this day. 
 
 Every step that you take to build other battle- 
 ships and to increase the Navy is another influence 
 against settling disputes in this way. Is there no 
 voice to be raised among us in favor of making ad- 
 vancement in settling the world's controversies in an 
 amicable manner ? Are we to go even ahead of the 
 other nations in our naval program ? I want to call 
 attention to this report to show that in comparison 
 with us France and "Germany and other powers are 
 abating in their efforts for a greater navy. It is the 
 United States that is going ahead with the greatest 
 rapidity; it is the United States that is saying, in 
 effect, if not in words, we are to be ready for war, 
 which means that we invite war. . . . 
 
 One gentleman, as I understand, opposed this bill 
 because the material for the Navy was made by the 
 trusts. That shows how, when a man gets a fad in 
 his mind, he will go astray. You will never attack 
 the naval program with any such popgun as that 
 146 
 
APPENDIX 
 
 — by saying that the material that belongs in the 
 ships is made by a trust. There is a broader and 
 higher ground, and that is its effects upon the future 
 of this great nation, upon civiUzation here and every- 
 where. Shall our statesmanship with its aspirations, 
 its forecast of the future, look toward peace and 
 amity and good-will, or shall it look toward the 
 bloody days of war ? tor one I want to say that I am 
 unable to vote for a bill that carries so large an 
 amount as this. I am unable to vote for a bill that 
 declares that the United States, which should be the 
 herald of peace, the leader in all great movements 
 of civilization, is going to double and treble and 
 quadruple its Navy, all under the statement that 
 we claim that it is in the interest of peace. 
 
 Gentlemen, you are not going to make the world 
 think that it is in the interest of peace. I doubt 
 whether, if you reflect upon it in your own inner 
 consciousness, you believe that these battleships 
 and cruisers and torpedo boats mean that. They 
 mean, rather, the gratification of a desire that we 
 shall enjoy the triumphs of war upon the land and 
 the sea again. I would not detract from the glories 
 of the American Navy. I believe it is an efficient 
 naval force, one which, as ex-President Harrison 
 147 
 
APPENDIX 
 
 said, man for man, gun for gun, shall be the best in 
 the world; but this bill means something very differ- 
 ent from that. This is a program far more ambi- 
 tious and eniphatic. It seems to display a desire that 
 the future policy of this country shall be one of 
 conflict. [Applause.] 
 
EUctntyped and printed hy H . O. Houghton &• Co. 
 Camtridee, Masi., U.S.A. 
 

 
 i ti i ! 
 
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